In the elaborate arrangement for the navigation of international rivers established by the German and Austrian peace treaties of 1919, the United States, whether or not a party thereto, has a substantial commercial interest with respect to provisions designed to facilitate the transit of goods, as well as to those pertaining to the treatment of vessels.

(ii)

The Treatment of Certain Rivers in the Nineteenth Century

§ 169. The Rhine.

The treaty of peace of Paris of May 30, 1814, announced in Article V that the navigable portions of the Rhine, to and from the sea, should be free, and in such a way that their use should be forbidden to no one. To the future Congress (of Vienna) was left the burden of fixing the principles by which should be regulated the duties to be raised by the riparian States, in a manner equal and most favorable for the commerce of all nations. That Congress, in order to facilitate communications between peoples, and to render them constantly less strangers to each other, was also to examine and decide in what manner the foregoing provisions could be extended to all other rivers which in their navigable courses separated different States.1

The rules of the Congress of Vienna were so expressed as to give room for a narrow construction of the principles laid down in the 1 Brit. and For. State Pap., XIX, 86.

"By the Treaty of Vienna of June 9, 1815, the powers whose States were 'separated or traversed by the same navigable river' engaged 'to regulate, by common consent, all that regards its navigation', and for this purpose to name commissioners who should adopt as the bases of their proceedings certain principles, the chief of which was that the navigation of such rivers, ‘along their whole course, . . from the point where each of them becomes navigable to its mouth shall be entirely free, and shall not, in respect to commerce, be prohibited to any one', subject to regulations of police. In order to assure the application of this principle, Articles were inserted expressly regulating in certain respects the free navigation of the Rhine; and it was provided that 'the same freedom of navigation' should be extended to the Necker, the Mayne, the Moselle, the Meuse, and the Scheldt, from the point where each of them becomes navigable to their mouths.' And in order to establish a perfect control' over the regulation of the navigation, and to 'constitute an authority which may serve as a means of communication between the States of the Rhine upon all subjects relating to navigation', it was stipulated that a central commission should be appointed, consisting of delegates named by the various bordering States, which commission should regularly assemble at Mayence on the 1st of November in each year." Moore, Dig., I, 628. Arts. CVIII-CXVI of the so-called Act of the Congress of Vienna of June 9, 1815, contain the provisions for the navigation of international rivers. For the text thereof see Brit. and For. State Pap., II, 7, 52–53. Annex XVI contains the Rules of Navigation. Id., 162. Áttached to the rules were a series of Articles concerning the navigation of the Rhine. Id., 163–178.

Treaty of Paris of May 30, 1814.1 In consequence, those rules were oftentimes so interpreted and applied in later conventions between the riparian States as to indicate that rights of navigation in the Rhine were the sole possession of States whose territories were traversed or separated by its streams, and that the riparian proprietors could themselves lawfully fix the terms of navigation therein. This was illustrated by regulations adopted by the riparian States in the convention of Mayence, March 31, 1831,3 and by those (which replaced them) of the convention of Mannheim, October 17, 1868.4

170. The Danube.

The principles of the Act of the Congress of Vienna designed to regulate the navigation of international rivers were applied to the Danube and its mouths by Article XV of the Treaty of Paris of March 30, 1856. It was declared that the navigation of that river should not be subjected to any impediment or charge not expressly provided for by the accompanying stipulations, and that consequently, there should not be levied any toll founded solely upon the fact of the navigation of the river, or any duty upon goods which might be on board of a vessel. With the exception of

1E. Engelhardt, Du Régime Conventionnel des Fleuves Internationaux, 32–41, 73-93, in which attention is called to the work of Baron Humboldt in securing acceptance of the ambiguous provision that the navigation of the Rhine should not be prohibited to any one with respect to commerce" (sous le rapport du commerce). See, also, Pierre Orban, Etude de Droit Fluvial International, 97

129.

Engelhardt (in Du Régime Conventionnel des Fleuves Internationaux, p. 81) adverts to the opinion expressed by the Prussian Government in a despatch addressed in 1857 to its delegates on the European Danube Commission in the following terms: 'According to the negotiations of the Congress at Vienna respecting Art. 109, it is not to be doubted that it was not within the design of that act to accord to non-riparians a right of navigation on the rivers dealt with conventionally." Citing despatch of Baron de Manteuffel of Aug. 26, 1857. That author adds that practice served to confirm this interpretation with respect to the rivers traversing Prussian territory that is, the Elbe, the Weser, the Ems, and the Rhine, as well as to Austro-Russian streams, such as the Vistula, the Dnieper and the Pruth. He calls attention also to the formality and rigor of Rhenish legislation of 1831. He cites Art. IV of the convention of June 23, 1821, respecting the navigation of the Elbe (Brit. and For. State Pap., VIII, 954); Arts. III and XLII of the convention concluded at Mayence Mar. 31, 1831, relative to the navigation of the Rhine (id., XVIII, 1078 and 1092); Art. VI of the Act concerning the Ems of 1843; Art. I of the Act concerning the Weser of 1823; as well as the convention between Austria and Russia of Aug. 5-17, 1818. (Brit. and For. State Pap., V, 938.) See, also, G. Kaeckenbeeck, International Rivers, 62–66.

3 Brit. and For. State Pap., XLVIII, 1076.

Brit. and For. State Pap., LIX, 470. See, also, in this connection, British memorandum opposing demands of the United States in 1824, respecting the navigation of the St. Lawrence, Am. State Pap., For. Rel., VI, 772, 774.

regulations of police and quarantine, no obstacle whatever was to be opposed to free navigation.1

With a view to carrying out the foregoing arrangement it was provided in Article XVI that a commission, in which Great Britain, Austria, France, Prussia, Russia, Sardinia and Turkey were each to be represented by one delegate, should be charged to designate and to cause to be executed certain necessary works to clear the mouths of the Danube as well as neighboring parts of the sea from obstructing impediments, for the benefit of navigation.2

By Article XVII provision was made for the establishment of a permanent commission (described in Article XVIII as the "River Commission") to be composed of delegates of Austria, Bavaria, the Sublime Porte and Wurtemberg (one for each of those powers), to whom should be added commissioners from the three Danubian Principalities whose nomination should have been approved by the Porte. This commission was to prepare regulations of navigation and river police, to remove impediments of whatever nature which might serve to prevent the application to the Danube of the arrangements of the treaty of Vienna, to order and cause to be executed the necessary works throughout the whole course of the river, and, after the dissolution of the European Commission, to see to the maintaining of the mouths of the Danube and the neighboring parts of the sea in a navigable state.3

The Treaty of Berlin of July 13, 1878, made numerous further provisions. In order to increase the guaranties assuring freedom of navigation on the Danube and "recognized as of European interest", Article LII declared that all existing fortresses and fortifications on the course of the river from the Iron Gates to its

1 Brit. and For. State Pap., XLVI, 8, 12, Moore, Dig., I, 630. According to Art. XV it was declared that the arrangement applied to the Danube thenceforth formed a part of the public law of Europe and that the contracting parties took it under their guaranty.

2 The commission referred to in the text was known as the European Danube Commission as distinct from the so-called River Commission for which provision was made in Art. XVII. See statement in Moore, Dig., I, 630–631.

"By the Treaty of London of Mar. 13, 1871, the existence of the European Commission was extended to April 24, 1883. It was further provided that 'the conditions of the reassembling of the riverain commission', established by Art. XVII of the Treaty of Paris, should be fixed by previous understanding between the riverain powers, without prejudice to the clause relative to the three Danubian principalities', and that, so far as any modification of the Article should be involved, it should 'form the subject of a special convention between the consignatory powers." Moore, Dig., I, 630. For the text of the treaty, see Brit. and For. State Pap., LXI, 7.

3 Brit. and For. State Pap., XLVI, 14. According to Art. XIX it was agreed that the contracting parties should have the right to station at all times two light vessels at the mouths of the Danube. Id., 14.

mouths should be razed, and no new ones erected; and that below that point, no vessel of war, with the exception of ships of light tonnage in the service of the river police and customs, should navigate the stream.1 Other articles maintained the European Commission and extended its functions.2

"The historical development of the Danube question resulted," as an authoritative American commentator has pointed out, "in a division of the river among a large number of régimes," and which "secured the actual freedom of navigation only on the lower river." 3 That division was doubtless partly due to the differing

1 Brit. and For. State Pap., LXIX, 749, 765, Moore, Dig., I, 630. It was also provided that the so-called "stationnaires" of the powers at the mouths of the Danube might ascend the river as far as Galatz. Cf. Pierre Orban, Étude de Droit Fluvial International, 226–235.

2 According to Art. LIII the European Commission of the Danube, on which Roumania was to be represented, was maintained in its functions and was to exercise them thereafter as far as Galatz in complete independence of the territorial authorities. Moreover, all treaties, arrangements, acts, and decisions relating to its rights, privileges, prerogatives, and obligations were confirmed. By Art. LIV it was provided that one year before the expiration of the term assigned for the duration of the European Commission (April 24, 1883) the Powers should come to an understanding as to the prolongation of its powers, or the modifications which they might deem necessary to introduce. Art. LV declared that the regulations respecting navigation, river police and supervision from the Iron Gates to Galatz, should be drawn up by the European Commission, assisted by delegates of the riverain States, and placed in harmony with those which had been or might be issued for the portion of the river below Galatz.

"In order to come to an understanding in regard to these last stipulations, a new treaty was concluded March 10, 1883, between Austria-Hungary, France, Germany, Great Britain, Italy, Russia, and Turkey. By this treaty the jurisdiction of the European Commission was extended from Galatz to Ibraïla, and its powers were prolonged till April 24, 1904, and thereafter for successive terms of three years till a certain notice was given.

"But, besides prolonging the existence of the European Commission, the treaty also created a new commission, called the 'Mixed Commission of the Danube', to consist of delegates of Austria-Hungary, Bulgaria, Roumania, and Servia, and a member of the European Commission, for the purpose of superintending the execution of the regulations made for the navigation of the river. This commission is to endure as long as the European Commission, to hold two sessions a year and to make its decisions 'by a majority of votes.' Moore, Dig., I, 631. For the text of the treaty of March 10, 1883, see Brit. and For. State Pap., LXXIV, 20.

See Regulations for Navigation and Police applicable to the Danube between Galatz and the mouths, Nov. 10, 1911, Hertslet's Commercial Treaties, XXVI, 862.

See Gustave Demorgny, La Question du Danube, Paris, 1911, 295–313; Bonfils-Fauchille, 7 ed., § 528, with bibliography; A. G. Pitisteano, La Question du Danube, Paris, 1914.

Cf. G. Kaeckenbeeck, International Rivers, 83-137, and documents there given.

3 Joseph P. Chamberlain, The Danube, Dept. of State, confidential document, 1918, 102. That writer in his valuable monograph notes the treatment which was applied to eight different sections of the river: (1) "from the point where the river becomes navigable in German territory to Passau on the Austrian border"; (2) "from Passau to the point where the river becomes a boundary between Serbia and Austria "; (3) "between the point where it is

relationships which various sections of the river bore to the riparian States whose territories were bounded or intersected by it, and to the differing degrees of interest felt by maritime States, whether riparian or non-riparian, in the navigation of particular sections.1 No single method of administration was acknowledged to be applicable even to such parts of the river as were open to ships of every flag.

171. The Scheldt. The Po.

According to the Treaty of Vienna of June 9, 1815, such freedom of navigation as had been fixed for the Rhine was extended also to the Scheldt and the Meuse, as has been observed, from the point where each of those rivers was navigable to its mouth.2 Article IX of the annex to the treaty of London of April 19, 1839, between Great Britain, Austria, France, Prussia and Russia on the one part, and the Netherlands on the other, declared that the provisions of the General Act of the Congress of Vienna, relative to the free navigation of navigable streams, should be applied to those rivers which separated Belgian and Dutch territories or which traversed them both. Elaborate provision was made for the navigation of the Scheldt, and permission accorded the Government of the Netherlands to levy a specified tonnage duty on vessels coming from the high sea" which should ascend the western Scheldt in order to proceed to Belgium, and also such a duty (of less amount) on vessels which, coming from Belgium, should descend that stream in order to proceed to the high sea.3 On May 12, 1863, Belgium and the Netherlands concluded a treaty for the redempthe boundary between Serbia and Austria to Moldowa at the head of the Cataracts"; (4) "the Iron Gates Cataracts section"; (5) "from the Iron Gates to Braila"; (6) "Braila to Soulina, including the St. Georges arm"; (7) "that part of the Kilia arm which forms the boundary between Russia and Roumania"; and (8) "the Kilia arm and Kilia delta, wholly under Russian territory.'

1 Thus the general concern as to privileges between Braila and the sea, and which also differed from that as to privileges between Braila and the Iron Gates, was of wider scope and was felt by more States than that pertaining to navigation on the upper river.

2 Art. CXVII of the Act of the Congress of Vienna, Brit. and For. State Pap., II, 7, 54; Articles appended to Annex XVI, id., 178.

The navigation of the Scheldt had been closed by Art. XIV of the Treaty of Münster of Jan. 30, 1648. See, in this connection, E. Engelhardt, Histoire du Droit Fluvial Conventionnel, 40 et seq.; Phillimore, Int. Law, I, § CLXIII. 3 Brit. and For. State Pap., XXVII, 992, 994-996. It may be observed that on the same day, Belgium and the Netherlands concluded a treaty containing the several Articles embodied in the Annex mentioned in the text. According to Art. XIV of the Annex: "The port of Antwerp, in conformity with the stipulations of Art. XV of the treaty of Paris, of the 30th of May, 1814, shall continue to be solely a port of commerce."

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