CHAP. XVI

North American rivers

of Berlin in 1878.1 A new treaty was entered into in 1883, creating the famous Mixed Commission of the Danube, an administrative body of a unique character, in that it appeared to possess a degree of international personality, having the power to reach decisions by a majority vote and to impose and enforce penalties for the violation of its regulations. Following the separation of Belgium from Holland in 1831, the Scheldt, which had been internationalized in 1815, became nationalized to the extent of a concession by the Treaty of London of 1839 to Holland to levy tonnage duties upon vessels coming to and leaving Belgian ports. These tolls were, however, abolished in 1863, by means of a treaty between the two states providing for their capitalization at a fixed sum.*

3

Beginning in the second half of the nineteenth century, rapid progress was made in opening up to the commerce of the world the boundary rivers of North and South America. The controversy over the navigation of the Mississippi began with a demand on the part of the United States in 1792 for a joint right of navigation with Spain, then in possession of both banks at the mouth of the river. The demand was met by the treaty of 1795,5 the relevant article of which lapsed when the river became nationalized by the subsequent acquisition by the United States of Louisiana and the Floridas. After persistent efforts on the part of the United States, and in return for the concession of special privileges to British subjects in respect to the navigation of Lake Michigan, the navigation of the St. Lawrence was finally opened to the vessels of the United States by the Reciprocity Treaty of 1854. The treaty 1 Art. LII-LVII. Br. and For. State Papers, LXIX, 749; Hertslet, IV, 2759. "Br. and For. State Papers, LXXIV, 20; Hertslet, IV, 3104; Sayre, Experiments in Int. Administration, Chap. IV.

3

7

Annex, Art. IX. Br. and For. State Papers, XXVII, 992.

Ibid., LIII, 8, 15. Following the treaty the United States entered into a separate convention with Belgium for the extinguishment of the Scheldt dues. See Malloy, Treaties, I, 75, where the text of the Netherlands-Belgium treaty is also given.

The king of Spain agreed that the navigation of the river "shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention." Art. IV. Malloy, Treaties, II, 1640.

It should be noted that the United States had agreed with Great Britain, by Art. VIII of the treaty of 1782-83, that the Mississippi, "from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States.'' The right thus acknowledged to Great Britain was, however, based upon an inaccurate assumption that the river had its source in British territory, and it accordingly was lost when the mistake was discovered in the subsequent survey of the boundary. Moore, Digest, I, 130.

'Art. IV, Malloy, Treaties, I, 668.

XVI

terminated upon notice given by the United States in 1866, and a CHAP. new agreement was reached in the Treaty of Washington of 1871, which provided that the river, from the point where it ceased to be the international boundary, should "forever remain free and open for the purposes of commerce to the citizens of the United States." At the same time it was provided that the Yukon, Porcupine, and Stikine rivers in Alaska should be open to the commerce of British subjects.1 A more recent boundary convention of January 11, 1909, opened up to the joint use of the citizens of both countries all the navigable waters forming part of the boundary between the United States and Canada.2 The Rio Grande, on becoming a boundary river after the admission of Texas into the Union in 1845, was by customary law open to the vessels of both countries; but a special agreement with Mexico was necessary to permit the United States to obtain access to the Gulf of California through the waters of the lower Colorado River. It should be noted that the negotiations preceding the opening of these and other rivers, although attended in some cases by an assertion of rights under international law, resulted in the conclusion of definite contractual agreements which avoid mention of general principles and confine the privileges granted to the citizens of the contracting states.*

American

African

The opening of the important South American rivers to interna- South tional commerce was accomplished upon a more liberal basis. Their and geographical location rendered them particularly susceptible to the rivers claim of common rights of navigation for a number of states. In 1852 the Argentine Confederation opened the Paraná and the Uruguay not only to the navigation of the riparian states, but to the merchant vessels of other nations as well. In 1858 Bolivia, being in possession only of the upper waters of the Amazon and La Plata rivers, announced in a treaty with the United States that it was ready to regard them as "highways or channels opened by nature for the commerce of all nations."' 5 Brazil resisted for some time the pressure brought to bear upon it, but in 1867 the government by unilateral decree opened the Amazon to the vessels of all nations. Shortly after, in 1869, by unilateral decree Venezuela opened the Orinoco River and its branches to the commerce of all 1 Art. XXVI. Malloy, Treaties, I, 700.

'Charles, Treaties, 39.

'Art. IV, treaty of 1848. Malloy, Treaties, I, 1107.

The practice of the United States is summarized by Hyde, Int. Law, I, § 165. Art. XXVI. Malloy, Treaties, I, 113.

Moore, Digest, I, § 131.

CHAP.

XVI

Provisions of the

peace treaties

of 1919

New inter

national

rivers

nations, although several restrictions upon international commerce were later imposed.' The important African rivers, the Congo and the Niger, were by the Final Act of the Berlin Conference of 1885 opened to the free navigation of "the merchant ships of all nations equally," not only in respect to ships coming from the open sea but in respect to the coasting trade as well, and at the same time the provisions of the treaty were announced as henceforth forming "a part of the international law."2 A special international commission was appointed to exercise administrative control over the observance of the regulations provided for in the treaty.3

The granting of new easements upon territorial rivers of Europe by the several treaties of peace of 1919 was attended by such exceptional conditions as to justify special comment. In the treaty of Versailles an effort was made to grant to certain of the new states, such as Poland and Czechoslovakia, advantages of navigation which would facilitate the access to the ocean of these inland countries.* At the same time, the privileges of the upper and lower riparian states were extended to non-riparian states as well, so that the rivers designed by the treaties were internationalized in the strict sense." On the other hand, special servitudes were laid upon Germany in respect to the treatment in her ports of the vessels of other nations upon a footing of equality with national vessels as regards port facilities and duties and charges of whatever nature. No attempt

was made to introduce reciprocity by the grant of similar privileges to Germany, nor was any attempt made to extend the provisions applicable to German rivers to other rivers in possession of the Allied and Associated Powers to which they were equally applicable."

The rivers declared by the treaty with Germany to be international, i.e., open to the vessels of all nations upon a footing of perfect equality with vessels of the riparian state, were the Elbe and the Ultava, connecting Prague with the sea, the Oder from the point of its confluence with the Oppa, the Niemen from Grodno to the sea, the Danube from Ulm, as well as "all navigable ports of Moore, Arbitrations, II, 1696; Digest, I, § 131.

1

Preamble; Art. II, XIII-XXXV. Br. and For. State Papers, LXXVI, 4. 'See Sayre, Experiments in International Administration, 84 ff.

Art. 327-353; 363-364.

Art. 331.

Art. 327-330.

'The provisions of the treaty thus appear to represent in part penalties imposed upon the defeated state rather than general constructive reforms, although they doubtless will form precedents for future international action along similar lines.

XVI

these river systems which naturally provide more than one state CHAP. with access to the sea," together with lateral canals and channels forming connecting links. A special concession was made to vessels. of the Allied and Associated Powers of the right to enjoy in German ports and on inland navigation routes the same privileges enjoyed by German vessels in respect to the transportation of both goods and passengers. A temporary administration of the new international waterways was provided for, to be followed by the adoption of a general convention which was to be submitted to the League of Nations for approval. Separate international commissions were also created for the administration of the regulations governing the navigation of the designated rivers. In the case of the Danube the existing European commission was temporarily limited in its membership to Great Britain, France, Italy, and Rumania. Special provisions were adopted enlarging the personnel and powers of the Rhine Central Commission, as well as regulating the hydrotechnical use of the waters of the Rhine, and the conditions under which a Rhine-Danube and a Rhine-Meuse navigable waterway might be constructed."

of rivers

It is doubtful whether international law can be said to have The flow recognized any servitude corresponding to that existing in civil and common law in the form of a right to the uninterrupted flow of streams and rivers. Conscious of the possession of the traditional rights of sovereignty, states in possession of the upper waters of a river have not recognized any general obligation to refrain from diverting its waters and thereby deny to the states in possession of the lower waters the benefits of its full flow. Such restrictions as have been recognized have been in every case the result of treaty stipulations. The controversy between the United States and Mexico over the diversion by the former of the upper waters of the Rio Grande for purposes of irrigation was settled in 1906 by the conclusion of a treaty for the equitable distribution of the waters of the river. The United States agreed to deliver to Mexico annually a specified number of cubic feet at a given point on the river, distributing the delivery through the year according to a fixed schedule."

1 Art. 331-332.

Art. 340-362.

2 Art. 327.

Art. 333-337.

Art. 346.

Art. 354-362. Corresponding provisions are to be found in the treaty of peace with Austria of September 10, 1919, Art. 290-310. The provisions of the two peace treaties are summarized in Hyde, Int. Law, I, §§ 173-180.

་ Malloy, Treaties, I, 1202.

CHAP.

XVI

c. Bays and gulfs

A more important convention was concluded between the United States and Great Britain in 1909 regulating the use of the boundary waters between the United States and Canada. It was provided that each state, while retaining jurisdiction over the waters on its side of the line, should grant to parties on the other side of the line, if injured by any interference or diversion of waters, the same rights and legal remedies as if the injury took place on the first side. Moreover, the parties agreed not to obstruct or divert the waters in the future without the approval of an international joint commission established by the convention, a majority of whose members should have power to render a decision.1

Special provisions with respect to the diversion of the upper waters of the Rhine were inserted in the Treaty of Versailles of 1919. France was given the right to take water from the Rhine to feed navigation and irrigation canals or for any other purposes, and was to have exclusive right to the power derived for hydrostatic works ("works of regulation") on the river, subject to a fixed payment to Germany in money or water-power.2 The same rights were to be accorded on demand to Switzerland in respect to that portion of the river along its boundary.3

Territorial bays do not appear to be subject to any general servitude in favor of states other than the territorial owner. But in so far as passage through them may be a condition of access to ports of the territorial state, foreign vessels enjoy the same privilege, or perhaps limited right, to their use which they enjoy in respect to admission to the port itself. By reason of their geographical configuration, territorial bays cannot form a highway of commerce with third states, except in the rare case where the boundary line

1 Charles, Treaties, 39.

The student of United States constitutional law may compare profitably the decision of the Supreme Court in the case of Kansas v. Colorado, 206 U. S., 46 (1907), in which the court held, in a suit brought by Kansas to restrain Colorado from diverting the waters of the Arkansas River for irrigation purposes, that the diversion was not sufficient in amount to injure perceptibly property lying along the lower valley. For a summary of the case, see Scott, Judicial Settlement of Controversies between States of the American Union, 431 ff. A more recent case is that of Wyoming v. Colorado, 259 U. S., 419 (1922), dealing with the diversion by Wyoming of the upper waters of the Laramie River.

2 Art. 358.

Ibid. In connection with the constructive development of the law it may be observed that the Institute of International Law, at its meeting at Madrid in 1911, adopted a draft code covering the regulation of international streams and rivers from the point of view of available water-power for industrial and agricultural purposes. Resolutions, 168.

'See above, p. 193.