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International Law as Environment for Municipal Litigation : The Chicago Diversion Cases

Published online by Cambridge University Press:  28 March 2017

Don C. Piper
Don C. Piper*
Affiliation:
university of Maryland
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Extract

It has long been recognized by students of international law that international legal rules may be significant issues in litigation before a municipal court. Three types of relationship of international law to municipal litigation may be observed: (1) those cases wherein the rules of international law are not germane; (2) those cases wherein the rules of international law, either conventional or customary, are a specific issue before the court and accordingly become part of the ratio decidendi of the court—the Sabbatino case is an example; and (3) those cases wherein international law rules are not a specific issue before the court but are part of the legal environment of the case. In these cases the court relies upon domestic law in its ratio deciderteli, but its cognizance of, or deference to, international law rules may either support or weaken international law. Although this note examines the third type of cases, the categories are not rigidly exclusive.

Type
Notes and Comments
Information
American Journal of International Law , Volume 62 , Issue 2 , April 1968 , pp. 451 - 454
Copyright
Copyright © American Society of International Law 1968

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References

1 388 U. S. 426 (1967).

2 See Don C. Piper, The International Law of the Great Lakes 90-103 (Durham: Duke University Press, 1967); and 3 Whiteman, Digest of International Law 789-805 (Washington: Government Printing Office, 1964).

3 Sanitary District of Chicago v. United States, 266 U. S. 405 (1925).

4 For the Secretary's permit, March 3, 1925, see 1 Foreign Relations (1925)

5 For Hughes’ report see IT. S. Congress, House, Lake Levels, Eeport of the Special Master Charles E. Hughes to the Supreme Court of the United States, 70th Cong., 1st Sess., 1928, Doc. 178.

6 State of Wisconsin et al. v. State of Illinois and Sanitary District of Chicago et al. 278 U. S. 367 (1929) and 281 U. S. 179 (1930).

7 355 U. S. 909 (1957). In their oral arguments and briefs the plaintiff States argued that the entire diversion of 3,200 c.f.s. was unlawful and should be prohibited unless fully compensated for. report of Albert B. Maris, Special Master, in Wisconsin et al. v. Illinois et al. (Philadelphia: Legal Intelligencer, 1966), p. 386

8 360 TT. S. 712 (1959).

9 Report of Albert B. Maris, op. cit. 19.

10 The decree becomes effective on March 1, 1970.

11 See the International Waterways Commission report, “The Chicago Drainage Canal,” in Canada, Sessional Papers, No. 19a, XLVII, No. 12 (1913), pp. 527-528.

12 36 Stat. 2448. For the history of the treaty see TJ. S. Congress, Senate, Legal Aspects of the Use of Systems of International Waters, 85th Cong., 2d Sess., 1958, Doe. 118, pp. 10-62; and Piper, op. cit. 74-79, 93-95.

13 2 Foreign Relations (1932) 69-75.

14 See Piper, Don C., “ A Significant Docket for the International Joint Commission,“ 59 A.J.I.L. 593–597 (1965)Google Scholar.

15 See Piper, International Law of the Great Lakes 96-99; and Whiteman, op. cit. 793-802.

16 Report of Albert B. Maris, op. cit. 17.

17 Ibid. 399. is

18 Ibid. 55 ff

19 Ibid. 414-416.

20 Ibid. 416, 436

21 This was the position taken by President Eisenhower in his veto of two bills to increase the diversion. See U. S. Congress, Senate, Subcommittee of Committee on Public Works, Hearings, Diversion of Water from Lake Michigan, 85th Cong., 2d Sess., 1958, pp. 76-77; and 35 Department of State Bulletin 357-358 (1956).