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Foremost in declaring international rivers open to all, France has always upheld the most liberal views in the great International Congresses.
When the Po became a national river, Italy did not close it to foreign flags; and in 1885 she suggested the opening up of national as well as international rivers.
In face of Count Kapnist's reservations at the Conference of Berlin (1885), it is important to recall that in 1883, when Russia resumed her authority over the Kilia mouth of the Danube, the principle of free navigation was not questioned, Russia having proclaimed that it could no longer be in question, either to-day or ever; either here or anywhere else'. In fact, the reservations were mainly directed against the system of international commissions.
United States of America.
The United States of America also made in 1885 some reservations, which might easily be misapprehended, and did not sign the General Act. But the reservations were aimed at the operation of the Treaties of Vienna and Paris, which cannot bind America; and these reservations contain no denial of the right of free navigation. Otherwise the attitude of the United States is clear and consistent. They
equality of treatment for the subjects and flags of Great Britain and Portugal, excludes all exclusive privileges and fiscal extortions, &c., and stipulates that any questions arising out of the provisions of this Article shall be referred to a joint commission and, in case, of disagreement, to arbitration'.
have always contended for a right of free navigation based on the Law of Nature.
The St. Lawrence controversy is enlightening in this respect. With regard to the Amazon, a note of Mr. Marcy, Secretary of State, to Mr. Trousdale, Minister to Brazil, August 8, 1853, shows the position unmistakably:
'This right', Mr. Marcy said, is not derived from treaty stipulations-it is a natural one-as much so as that to navigate the ocean, the common highway of nations.'
And further on, we read:
'We claim for this continent [the American continent] the same privileges which nearly forty years ago were arranged by common consent and have ever since been applicable to the navigable waters of Europe. The regulations adopted by the Allied Sovereigns at the Congress of Vienna in 1815 on this subject were but the recognition of the Law of Nations in regard to the use of navigable rivers passing through different realms.'
Imbued with such principles, the United States Government, in dealing with South American States, has on many occasions used persuasion, threats, or compulsion to obtain free navigation.
§ 28. Conclusions.
Whether the survey which has been made is sufficient to authorize the assertion that a right of free navigation exists, is left for the reader to determine for himself. On our part, we have anticipated our conclusion at the end of § 9 (supra, p. 14). The definitive settlement of the question cannot be accomplished in any way so well as by the decision of an International Congress resuming the task of the Congress of Vienna and improving upon its achievements.
Two fundamental principles, requiring emphatic recognition, stand out clearly: (1) Commercial navigation is free for all flags, and all particular regulations inconsistent with this freedom are ipso facto invalid.
(2) No fiscal exactions are permissible beyond (a) a reasonable contribution payable by passing ships towards the expenses necessary to maintain and improve the navigability of the river, and (b) a reasonable compensation for the use of special appliances.
These principles being admitted, it remains to organize the administrative co-operation of the riparian States. Will they settle everything directly through the agency of their Foreign Offices or through that of functionaries appointed for the purpose? This course is most in accordance with a radical and absolute conception of State sovereignty, but highly unpractical and dangerous. Or, on the other hand, will the riparian Powers give up their individual sovereign rights over the river in favour of a condominium? This is very unlikely, and, besides, goes farther than is necessary, and is hardly consistent with legal principle.
The plan which has obtained most favour from statesmen and jurists is that of providing the river with a special administration, including representatives of all the riparian countries; the administrators being on an equal footing, and having, as a body, a certain degree of autonomy in ordinary matters concerning the navigation and upkeep of the river. Such an administration, having primarily in view the interests of the river, of navigation and commerce, does away with the danger of friction resulting from the immediate contact of officials and departments biassed by their national and particularistic points of view. It does not, like the establishment of a condominium on the river, encroach upon the vital right of self-protection of every State or necessitate a sharing of sovereignty. Finally, it has the sanction of authority and practice, which neither of the other two extreme systems can be said to have.
In any case, it must be remembered that the great
difficulty will always lie less in the acceptance of the general principles than in the settlement of the details of their application. In this respect a thorough study of the more important Regulations of navigation is of the greatest importance.1 Here, however, it will be sufficient to reproduce, with a commentary, the Standard Regulation elaborated by the Institute of International Law in 1887. It is an excellent source of inspiration for all who are called upon to inquire into the most appropriate rules to be applied to the navigation of international rivers.
The stipulation of Art. XIII of the Treaty of Lisbon (n. 1, p. 42) that any questions arising out of the provisions of . . . . shall be referred to a joint commission and, in case of disagreement, to arbitration might usefully be adapted to any general Regulation.
(ii) STANDARD REGULATION
(a) General Provisions
§ 1. Compulsory Agreement.
'Article I. The riparian States of a navigable river are obliged, in the general interest, to regulate, by common agreement, everything relating to the navigation of such river.'
Cf. supra, p. 24, the wording of Article CVIII of the Final Act of the Congress of Vienna. For the simple engagement to regulate navigation by common agreement, the present Article substitutes the obligation of doing so in the general interest. § 2. Navigable Affluents.
'Article II.—The navigable affluents of international rivers are, in every respect, subject to the same regime as the rivers whose tributaries they are, in conformity with the agreement concluded between the riparian States, and with the present Regulation.'
1 The most important are analysed or summarized in Kaeckenbeeck, International Rivers, part II.
Cf. wording of Article CX of the Final Act of the Congress of Vienna (see Appendix II). It applies the rules for the collection of dues and for river police to international affluents, with a reservation. The present Article extends in every case the whole regime of the river to all its navigable affluents, whether national or international, exactly as does Article III of the Act of Navigation of the Congo.
§ 3. The principle of free navigation.
'Article III.-The navigation on the whole course of international rivers, from the point where each of them becomes navigable, to the sea, is entirely free, and cannot, as regards commerce, be forbidden to any flags.'
Cf. Article CIX of Vienna (supra, p. 24), and preliminary discussions, pp. 20-23.1
§ 4. Boundary rivers.
'The boundary line of the States separated by the river is marked by the Thalweg, that is to say, by the middle line of the channel.'
This is an unsatisfactory definition of Thalweg, as the Thalweg is not necessarily the 'middle line'. The Thalweg, or, for greater precision, l'axe du Thalweg, is the uninterrupted line determined. by the deepest places in the bed. The presumption that the line of demarcation of sovereignties is the Thalweg may be rebutted by the existence of a special convention or by immemoria! possession.2
§ 5. Equal treatment for all.
'Article IV. The subjects and flags of all nations are in every respect on the footing of perfect equality.
1 The liberal interpretation of Article CIX is exemplified by the cases of the Scheldt and the Po. The Treaty of Paris (1856) decided for good in its favour (Articles XV and XVI); see above, pp. 26, 29. 2 In case of contest between two branches, the one whose Thalweg is deepest is the Thalweg branch'. This solves the questions relative to islands. On boundary rivers, more generally, see Westlake, International Law, i, pp. 141-2.