« PreviousContinue »
canals of the conventional basin; and by Article IV to the roads, railways, and lateral canals designed to supplement the use of the river where non-navigable.
Article V institutes an International Commission, the members, agents, offices, and archives of which Article VI declares inviolable. Articles VII, VIII, IX, and X provide for its constitution and powers; but, as a matter of fact, it has never been constituted at all. This Commission was to draw up the Regulations, see that they are complied with, and punish infractions ; to decide what works are necessary and carry them out, fix the tariffs of pilotage and dues, superintend the quarantine establishment, and appoint its own personnel; it might have recourse to the war vessels of signatory Powers, make loans, and provide for technical and administrative expenses. On the sections of the river held by a sovereign Power, the International Commission was to concert its action with the riparian authorities.
Finally, Article XIII provides for the maintenance of free navigation on the Congo, its tributaries, and the territorial waters opposite to its mouths in time of war. Traffic is similarly to remain free on the roads, railways, lakes, and canals assimilated to the regime of the river. Only the transport of contraband is excepted. All the works and establishments created in pursuance of the Act, as well as the permanent staff, enjoy the benefits of neutrality.1
§ 26. The Act of Navigation and International Law. The question next arises: how far does this Act of Navigation represent the principles of International
1 The Act of Navigation of the Niger is substantially the same; only, instead of an International Commission, the two riparian Powers, Great Britain and France, co-operate in adopting Regulations securing freedom of navigation for all flags and protecting foreign merchants in the same manner as their own subjects.
Law? The preamble proposed by the sub-committee is enlightening as to this. It ran:
'The Congress of Vienna having established by Articles CVIII-CXVI of its Final Act the general principles which regulate the free navigation of the navigable water-courses separating or traversing several States, and these principles, completed by Articles XV and XVI of the Treaty of Paris of March 30, 1856, having, by the fact of their more and more extended application to a great number of rivers of Europe and of America and especially to the Danube, passed into the domain of public law, the Powers whose plenipotentiaries have assembled in Conference at Berlin have resolved to apply them equally to the Congo, and to its affluents as well as to the waters which are assimilated to them..
The preamble was not, however, adopted as such, for objections came from two quarters:
(a) From the American plenipotentiary, who denied that a European Congress could 'regulate, directly or indirectly, the rights applicable to American jurisdiction'.
(b) From the Russian plenipotentiary, who particularly objected to the words: and especially to the Danube'. He insisted that the Danube regulations were owing to the European Commission-an exceptional application of the principles of the Treaty of Vienna, necessitated by exceptional circumstances.1 In the same way, the principles of the Act of Navigation being exceptional for the same reason, its application should be limited to the region with which the Conference has dealt. The best proof of the regime of the Congo being exceptional, he added, ‘is the fact that the Niger is subjected to an absolutely different regime'.2
1 Viz. the necessity of carrying out works which the riparian States had no means of executing.
2 This shows well enough that the objections are only levelled at the system of international commissions, for on no other point is there a material difference between the regime of the Niger and that of the Congo.
(i) § 27. THE ASSENT OF THE CIVILIZED WORLD.
We have thus seen the principle of free navigation for all flags clearly proclaimed by the peacemakers of 1814 (Treaty of Paris, Article V), obscured in the Final Act of the Congress of Vienna (Article CIX, which was applied sometimes in its more liberal and sometimes in its more restricted sense), strongly reasserted in 1856 by the Treaty of Paris, and finally encountering no opposition at all in 1885 at the Conference of Berlin where the representatives of fourteen Powers were assembled.
Since that date, among other facts, the Institute of International Law, in 1887, declared the making of agreements regulating the free navigation of international rivers obligatory (cf. infra, p. 46); and, in 1899, in their award in the British-Venezuelan boundary dispute, the arbitrators decided that in time of peace the rivers Amakuru and Barima shall be open to navigation by the merchant ships of all nations . . .' 1 From all this, it seems clear that the principle is now generally admitted as a principle of International Law. A consideration of a few salient facts and official utterances the evolution, so to speak, of the attitude and views of the principal States with regard to the question under review-makes still more evident the growing consciousness of the civilized world on this point.
1 De Martens, Nouveau Recueil Général, 2nd series, xxix, p. 587.
The evolution is as clearly marked as possible. In 1815 the equivocal attitude of the German States bordering the Rhine led to a regrettable ambiguity in the Final Act of the Congress of Vienna; and, in the application of its principles to the Rhine and other German rivers, the restrictive interpretation prevailed.
In 1856, however, and without prejudice to the interpretation of the Final Act of the Congress of Vienna, Germany upheld the wider interpretation of the Treaty of Paris, as against Austria.
In 1868 Germany abandoned her particularistic attitude by proclaiming, in Article I of the Regulation of Mannheim, the principle of freedom of navigation ⚫on the Rhine for the ships of all nations.
Finally, in 1885, Bismarck, as chairman of the Conference of Berlin, declared that
the Congress of Vienna, by proclaiming freedom of navigation on the rivers which flow through the territories of several States, sought to prevent any monopoly of the advantages inherent in a water-course'. This principle', he added, ‘has passed into International Law, both in Europe and in America.
The fluctuations in Austria's attitude are to be understood simply by reference to her political interest. When she imposed on Parma and Modena the application of the principles of the Congress of Vienna to the Po, these principles were most widely interpreted. When it proved impossible to confine the Treaty of Paris (1856), as Austria wished, to the Lower Danube, Austria upheld the strictest interpretation both of the principles of the Congress of Vienna and of the Treaty of Paris. From that time her attitude has always been that
most suitable to the extension of her hegemony over the Danubian States.
In her dispute with the United States of America, Great Britain consistently refused to recognize a right of free navigation by natural law. For her the question was purely a matter for conventions. At the same time it appears to be, on the whole, in the interest of Great Britain to support the principle of the free commercial navigation of international rivers by the flags of all nations.
In Europe, at the Congress of Vienna (1815), Lord Clancarty insisted on a clear recognition of freedom of navigation for all nations; and in 1856 and 1858 Great Britain was foremost in upholding the most liberal interpretation of the principles of the Congress of Vienna and of the Treaty of Paris.
In 1885, at the Berlin Conference, the British plenipotentiary declared, on the question of free navigation, that the question for practical consideration will be, in the opinion of H.M.'s Government, not so much the acceptance of the general principles as the mode of their application'.
In 1888, in the Shiré-Zambezi controversy, Great Britain's attitude seems to have been founded on the recognition of a right of navigation even apart from treaty.1
1 See Kaeckenbeeck, International Rivers, Appendix III, where the controversy is set forth in detail. After an agreement establishing a modus vivendi (Nov. 14, 1890) and a Portuguese Decree opening the Zambezi and Shiré to all flags in accordance with the principles established on the Niger in 1885, the Treaty of Lisbon was signed on June 11 and ratified on July 3, 1891 (Parliam. Papers, Portugal No. 1 (1891) [Cd. 6375]). Art. XII of this treaty provides for freedom of navigation for all flags and free transit over waterways and landways; while Art. XIII provides for absolute