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Charter or Public Act determining its rights and duties.' The Commission has authority over the mouths of the Danube to design and carry out all necessary works, to levy dues to cover its expenses, to enact binding Regulations and supervise the navigation; and it enjoys the benefit of neutrality in time of war. The Public Act was ratified in 1866, as was also the Regulation annexed to it and applicable to the navigation of the Lower Danube.2
By the Treaty of London (March 13, 1871) the duration of the Commission was again prolonged; and the benefit of neutrality granted to the establishments and personnel of the European Commission was confirmed.
§ 21. The Congress of Berlin (June 13 to July 13, 1878) and its Results.
The Russo-Turkish War of 1877 brought about further modifications of the Danubian regime.3
1. Rumania is represented in the European Commission (Article LIII).
2. The Powers of the European Commission extend as far as Galatz (Article LIII).
3. The European Commission is entirely independent of the territorial authority (Article LIII).
4. The European Commission is to make, with the delegates of the riparian States, regulations for the section between the Iron Gates and Galatz (Article LV).
5. The execution of the works at the Iron Gates
1 Public Act, signed at Galatz, November 2, 1865: see Parliamentary Papers [C. 2006], No. 11.
2 Revised in 1870, 1879, and 1911. The latter is in De Martens, Nouveau Recueil Général, ed. Triepel, 3rd ser., ix, 1re livraison, 1916 3 On the preliminaries and the preparation of the draft, see Kaeckenbeeck, International Rivers, §§ 147-53. In fact, the Austrian proposition presented by Baron Haymerle was adopted with slight alterations.
and the cataracts is entrusted to Austria-Hungary (Article LVII).
As a consequence of section 3, the Public Act of 1865 was revised and its modifications were embodied in an Additional Act (1881). According to it the European Commission became a kind of 'juristic person of Public International Law'. It appoints, pays, and dismisses its functionaries, who are chosen without distinction of nationality and take an oath of allegiance to the Commission. Disputes are settled in its name. It exercises financial control, undertakes works on the river without reference to the territorial authorities, possesses ships and a recognized flag; and its property, works, and staff enjoy the benefits of neutrality.
Sections 4 and 5 were the result of Austria's political tentative with regard to the section between the Iron Gates and Galatz. Article LV led to the presentation of an Austrian project recommending the creation of a Mixed Commission in which Austria-Hungarythough a non-riparian of that section-should have by right the presidential chair and the casting vote.
Two other projects were opposed to it: (a) the 'Projet Barrère', which maintained the idea of a mixed commission, but of one which was to consist of a Rumanian, a Bulgarian, and a Serbian delegate, an Austrian president, and to obviate the casting vote one of the members of the European Commission, appointed in turn for six months, according to the alphabetical order of the countries represented. (b) The Rumanian counter-proposition, which proposed a 'supervising Commission of delegates from the three riparian States and of two members of the European Commission. The Projet Barrère', slightly modified, prevailed; but Rumania has hitherto refused to recognize the Mixed Commission.
§ 22. The Treaty of London (1883).
The Conference of London, held in February and March 1883,1 had to deal with:
1. The prolongation of the powers of the European Commission-for 21 years as from April 24, 1883— and afterwards renewable every three years by reconduction tacite (Article II).
2. The extension of its powers to Braïla (Article I).
3. The adoption and application to the section. between the Iron Gates and Braïla of the Regulation of 1882, made in virtue of Article LV of the Treaty of Berlin of 1878 (Article VII).2
But other questions forced themselves on the attention of the plenipotentiaries.
(a) Rumania requested to be called upon to decide directly and equally with the other Powers on all questions relative to the European Commission'; and Serbia requested to be admitted to the Conference. The Conference decided to 'invite Rumania and Serbia in order to consult and hear them', but not, as the German representative put it, en maîtresses de maison.3 Serbia accepted; Rumania declined and made most solemn reservations, declaring the decisions not binding upon her.
(b) Russia declared her intention of resuming all her authority over the Kilia branch of the Danube (Articles III, IV, V, VI).
§ 23. The Results.
The net results of these diplomatic transactions were: 1. The confirmation of the liberal interpretation of Article CIX of the Final Act of the Congress of Vienna.
1 British and Foreign State Papers, lxxiv, pp. 20 and 1231. 2 A dead letter, owing to the opposition of Rumania.
3 The Conference also decided that Bulgaria might submit observations to the Conference through the Turkish Ambassador.
2. The establishment on the Danube of a plurality of regimes instead of the unity aimed at by the Congress of Vienna.
3. Disregard of the sovereign rights of the riparian States of the Lower Danube.
4. The maintenance and confirmation of an institution altogether exceptional and at first only provisional, viz. the European Commission.
(iii) THE CONFERENCE OF BERLIN (1884–5)
§ 24. Proceedings of the Conference.
The Conference of Berlin, attended by the plenipotentiaries of fourteen Powers,1 had for its objects the three following points :
1. Freedom of commerce in the basin and mouth of the Congo.
2. Free navigation for all flags on the Congo and the Niger.
3. Definition of the formalities necessary for effective new occupations.
The principle of free navigation was looked upon as an essential adjunct of commercial freedom. Thus it is that, in the Declaration relative to freedom of commerce, we find the following Article (II):
'All flags, without distinction of nationality, shall have free access to the whole of the coast-line of the territories above enumerated, to the rivers there running into the sea, to all the waters of the Congo and its affluents, including the lakes, and to all the ports situate on the banks of those waters, as well as to all canals which may in future be constructed with intent to unite the water-courses or lakes within the entire area of the territories described in Article I. Those trading under
1 Germany, Austria-Hungary, Belgium, Denmark, Spain, the United States of America, France, Great Britain, Italy, the Netherlands, Portugal, Russia, Sweden and Norway, and Turkey.
such flags may engage in all sorts of transport and carry on the coasting trade by sea and river, as well as boat traffic, on the same footing as if they were subjects.'
Article III forbids all differential dues on vessels as well as on merchandise.
These general principles find their complement and application in the Acts of Navigation of the Congo and the Niger. A German draft proposal for these two rivers was jointly presented at the fourth sitting; but, at the instance of the British plenipotentiary, the two rivers were dealt with separately. Owing to their technicalities, the two drafts 1 were referred for examination and discussion to a committee, which in turn referred them to a sub-committee 2 which introduced various modifications. The two texts were then, after long deliberations, adopted by the committee and submitted to the Conference along with a remarkable report by Baron Lambermont (Annex to Prot. 5).
§ 25. Act of Navigation for the Congo.3
Article I provides for the free navigation of the Congo and all its branches and outlets by the merchantmen of all flags with the most perfect equality. No privileges can be conceded. These rules are part and parcel of International Law.
By Article II no tolls or imposts can be levied, but only such dues as have the character of an equivalent for services rendered. No differentiation is allowed.
The regime of the Congo is extended by Article III to all its tributaries, and to all streams, lakes, and
1 i. e. the German draft for the Congo and a draft of an Act of Navigation for the Niger proposed by the British Ambassador.
2 Consisting of M. Kusserow (Germany), Baron Lambermont (Belgium), M. Engelhardt (France), Mr. Crowe (Great Britain), and M. Cordeiro (Portugal), to whom were added M. Banning and Sir Travers Twiss.
3 For the whole text with full commentary, see Kaeckenbeeck, Inter national Rivers, §§ 188-265.