THE SCHELDT. THE PO [§ 171 tion of the Scheldt dues by the capitalization of the same for a specified sum, and in which the King of the Netherlands renounced forever the right of collecting tolls on the navigation of the Scheldt pursuant to Article IX of the treaty of 1839.1 This agreement was annexed to the general treaty of July 16, 1863, concluded in behalf of seventeen interested States on the one hand, and Belgium on the other, and providing for an equitable division of the burden assumed by the convention of May 12.2 Upon the outbreak of The World War in 1914, the Dutch Government undertook the establishment of "war buoying" on the Scheldt, and with the design of maintaining navigation therein.3 In its neutrality declaration communicated August 6, 1914, vessels of war or vessels assimilated thereto and belonging to a belligerent, were forbidden passage across the territory within Dutch territorial waters, and which obviously embraced the lower Scheldt and its mouths. It must be apparent that, as Sir Walter Phillimore observed in 1917, any arrangement which prevents military or naval expeditions from passing between Antwerp and the sea is a serious detriment to the welfare of Belgium, and a reason for an adjustment giving to that State "equal rights with Holland over the west Scheldt both in war and peace." 5 1 Brit. and For. State Pap., LIII, 15; Malloy's Treaties, I, 77. 2 Brit. and For. State Pap., LIII, 8. See, also, Pierre Orban, Etude de Droit Fluvial International, 138-143; Auguste Parent, Du Commerce de Belgique à propos de l'Affranchissement de l'Escaut, Brussels, 1863; G. Kaeckenbeeck, International Rivers, 31-32, 71-83. The United States, by a treaty concluded with Belgium July 20, 1863, secured the advantages of the extinguishment of the Scheldt dues through an undertaking to assume an equitable portion of the capitalization thereof as provided by a convention between the same States of May 20, 1863. Malloy's Treaties, I, 75 and 73, respectively. Annexed to the treaty of July 20, 1863, was a declaration by the Netherlands Minister at Brussels of July 15, 1863, in virtue of special powers delivered to him, that the extinguishment of the Scheldt dues, consented to by his sovereign on May 12, applied to all flags, that those dues could never be reëstablished in any form whatsoever, and that their extinguishment should not affect in any way the other provisions of the treaty of April 19, 1839. Id., 79. See, also, Dana's Wheaton, Dana's Note No. 116. 3 Belgian Gray Book, Misc. No. 12 [1914], Cd. 7627, documents 29, 54, 55, and 56. According to document No. 49, the British Government announced Aug. 5, 1914, that "the British fleet will insure the free passage of the Scheldt for the provisioning of Antwerp." "During the siege of Antwerp in October, 1914, no attempt was made by the Allies to use the estuary of the Scheldt for warlike purposes, but the position of these waters in international law has never yet been precisely acknowledged or defined." Oakes and Mowat, The Great European Treaties of the Nineteenth Century, Oxford, 1918, p. 135. Misc. No. 12 [1914], Cd. 7627, document No. 53, Am. J., IX, Supp., 80. 5 Sir Walter G. F. Phillimore, bart., Three Centuries of Treaties of Peace, London, 1917, 147 and 52. That distinguished jurist has since been made a baron. The relation of Antwerp both to Belgium and to oversea maritime States would appear to create a general interest in removing the barrier due to the circumstance that the estuaries of the Scheldt pass through territory foreign to Belgium, and possibly by assisting that State to become, on equitable terms, the territorial sovereign over a necessary channel between Antwerp and the sea. The general principles adopted by the Congress of Vienna for the navigation of rivers were, by Article XCVI of the General Act of 1815, made applicable to the Po. By the treaty of July 3, 1849, between Austria and the Duchies of Parma and Modena, the navigation of that river, including all of its affluents, whether or not international streams, was rendered free to all flags.2 The Treaty of Zurich, concluded November 10, 1859, in behalf of France, Austria and Sardinia, maintained the liberty of navigation within the Po and its affluents "conformably to the treaties." 172. The Vistula. 4 "3 The principle of free navigation of international rivers was early applied to certain Polish streams. Article VIII of the treaty of Tilsit, concluded between France and Russia July 7, 1807, declared the navigation of the Vistula to be free. On May 3, 1815, treaties concluded between Russia and Austria,5 and Russia and Prussia,6 provided that the navigation of all rivers and canals throughout the entire extent of the ancient Kingdom of Poland, wherever they were actually navigable or might become so, should be free, in the sense that they should not be closed to any of the inhabitants of the Polish Provinces under the Governments of Russia or Austria, and Russia or Prussia, respectively. The principles of these and certain other provisions of both treaties were reaffirmed by Article 1 Brit. and For. State Pap., II, 47. 2 Id., XXXVIII, 130. The Pope acceded to this treaty by an Act of Feb. 12, 1850. Id., 136. See Pierre Orban, Etude de Droit Fluvial International, 143-145, where that author remarks: Let us observe that the negotiators of 1815 did not dare to assimilate to rivers their affluents which were purely national. Those of 1849 were, therefore, shown to be the more courageous and also the more logical." 3 Brit. and For. State Pap., L, 1019. According to a treaty between Portugal and Spain of Aug. 31, 1835, the river Douro was rendered free for the navigation of the subjects of the contracting parties. Nouv. Rec., XIV, 97; Brit. and For. State Pap., XXIII, 1046. See, also, Sec. 11 of Regulations concluded between Spain and Portugal, Jan. 16, 1877, Brit. and For. State Pap., LXVIII, 145, 152. See, also, J. Vallotton, "Du Régime Juridique des Cours d'Eau Internationaux de l'Europe Centrale", Rev. Droit Int., 2 ser., XV, 271, 303–306. 4 Rec., VIII, 639. 5 Brit. and For. State Pap., II, 56, 60. 6 Id., II, 63, 68. 7 Pierre Orban, Etude du Droit Fluvial International, 133-138. FREEDOM OF INLAND NAVIGATION [§ 173 XIV of the General Act of the Congress of Vienna.1 Austria and Russia by a treaty concluded at St. Petersburg August 5/17, 1818,2 and Prussia and Russia by a treaty there concluded December 19, 1818,3 gave precise applications to their earlier compacts. The Austro-Russian convention declared in Article XI that the navigation of the Vistula should be free from every duty or tax with respect to the borders which belonged to the contracting parties. The Russo-Prussian convention provided in Article II that the navigation of the Vistula should be free from every charge except one collected in Prussia under the denomination of "Schiffsgefassgelder." This convention was replaced by a treaty concluded by Prussia and Russia February 27 (March 11), 1825, which provided in Article V that the navigation of the Vistula and the Niemen, as well as their affluents, should be free from tolls.4 (iii) Certain Conventional Arrangements of 1919 § 173. Freedom of Inland Navigation. According to the treaty of peace with Germany of June 28, 1919, the nationals of any of the Allied and Associated Powers, as well as their vessels and property, were accorded the right to enjoy in all German ports and on the inland navigation routes of Germany the same treatment in all respects as German nationals, vessels and property. It was declared in particular that the vessels of any one of those Powers should be entitled to transport goods of any description, and passengers also, to or from any ports or places in German territory to which German vessels might have access, under conditions which should not be more onerous than those applied in the case of national vessels.5 1 Brit. and For. State Pap., II, 14. 3 Brit. and For. State Pap., V, 945. * Id., XII, 927, 928. 2 Nouv. Rec., IV, 540. "What is necessary to remember is that the rivers and other channels of the ancient Kingdom of Poland would have been in reality subjected to a sufficiently broad régime had not the States which established it kept the benefits solely to themselves." Pierre Orban, Étude de Droit Fluvial International, 138. 5 Art. 327. It was added that the vessels of the Allied and Associated Powers "shall be treated on a footing of equality with national vessels as regards port and harbour facilities and charges of every description, including facilities for stationing, loading and unloading, and duties and charges of tonnage, harbour, pilotage, lighthouse, quarantine, and all analogous duties and charges of whatsoever nature, levied in the name of or for the profit of the Government, public functionaries, private individuals, corporations, or establishments of any kind." It was also provided that the granting by Germany of a preferential régime to any of the Allied or Associated Powers or to any other foreign Power, should 174. Free Zones in Ports. By the same treaty, free zones existing in German ports on August 1, 1914, were to be maintained; and these zones together with any others which might be established in German territory pursuant to the treaty, were to be subjected to the régime for which provision was made in subsequent Articles.1 It was declared that goods entering or leaving a free zone should not be subjected to any import or export duty, other than those provided for in a specified Article (Art. 330), where the right to levy duties on goods leaving the free zone for consumption in the country on the territory of which the port of such zone was situated, was acknowledged; and conversely, there was no prohibition of export duties to be levied on goods coming from such country and brought into the free zone. On the other hand, Germany was forbidden to levy, under any denomination, "any import, export or transit duty on goods carried by land or water across her territory to or from the free zone from or to any other State." 2 Clauses Relating to the Elbe, the Oder, the Niemen (Russ- $175. General Clauses. The treaty declared specified rivers to be "international." The following were so described: the Elbe (Labe) from its confluence with the Vltava (Moldau), and the Vltava (Moldau) from Prague; the Oder (Odra) from its confluence with the Oppa; the Niemen (Russstrom-Memel-Niemen) from Grodno; the Danube from Ulm, as well as "all navigable parts of these river systems. which naturally provide more than one State with access to the sea, with or without trans-shipment from one vessel to another; together with lateral canals and channels constructed either to duplicate or to improve naturally navigable sections of the specified river systems, or to connect two naturally navigable sections of the same river." 3 be extended immediately and unconditionally to all of the Allied and Associated Powers. It was declared that there should be no impediment to the movement of persons or vessels other than those arising from prescriptions concerning customs, police, sanitation, emigration and immigration, and those relating to the import and export of prohibited goods. Such regulations were, moreover, to be reasonable and uniform, and not to impede traffic unnecessarily. This Article was reproduced in Art. 290 of the treaty of peace with Austria of Sept. 10, 1919. 1 Art. 328. See, also, the details worked out in Arts. 329–330. 2 Art. 330. 3 Art. 331. It was added that the same provisions should be applied to the THE ELBE. THE ODER. THE NIEMEN [§ 176 On these waterways, declared to be international, it was provided that the nationals, property and flags of all Powers should be treated on a footing of perfect equality, "no distinction being made to the detriment of the nationals, property or flag of any Power between them and the nationals, property or flag of the riparian State itself or of the most favoured nation." 1 Provision was made for a temporary régime for these waterways,2 to be superseded by one to be laid down in a so-called General Convention to be drawn up by the Allied and Associated Powers and approved by the League of Nations, with reference to the waterways recognized in such convention as having an international character.3 § 176. Special Clauses Relating to the Elbe, the Oder and the Niemen (Russstrom-Memel-Niemen). 4 The Elbe was to be placed under the administration of an international Commission, and likewise the Oder. In each case such commission was to comprise representatives of specified non-riparian as well as riparian States. The Niemen (RussstromMemel-Niemen) was to be placed under such a commission upon the request made to the League of Nations by any riparian State; and in such event, the commission was to comprise one representative of each riparian State, and three representatives of other States specified by the League of Nations. Rhine-Danube navigable waterway, should it be constructed under conditions laid down in Art. 353. See, also, Art. 291 of the treaty of peace with Austria, with respect to general causes relating to the Danube. 1 Art. 332, where it was added that German vessels should not be entitled to carry passengers or goods by regular services between the ports of any Allied or Associated Power, without its special authority. See, also, Arts. 292 and 293 of the treaty of peace with Austria. 2 Arts. 333-337. See, also, Arts. 294-298 of the treaty of peace with Austria. 3 Art. 338, where it was declared that the General Convention should apply in particular to the whole or part of the above-mentioned river systems of the Elbe, the Oder, the Niemen and the Danube, and such other parts of those river systems as might be covered by a general definition. Art. 339 made provision for the cession by Germany to the Allied and Associated Powers of river craft. 4 Art. 340. 5 Art. 341. • Art. 342. With reference to the times of meeting and the functions of these commissions see Arts. 343-345. According to Art. 343, each of these commissions was to proceed immediately to prepare a project for the revision of the existing international agreements and regulations, in conformity with the General Convention referred to in Art. 338, should it have been already concluded. In the absence of such convention, the project for revision was to conform with the principles of Arts. 332 to 337 of the treaty. |