International Law. A Treatise Volume I Part 28

Grotius, II. c. 2, ---- 11-15--Pufendorf, III. c. 3, -- 8--Vattel, II. ---- 117, 128, 129, 134--Hall, -- 39--Westlake, I. pp.

142-159--Lawrence, -- 92--Phillimore, I. ---- 125-151--Twiss, I. -- 145--Halleck, I. pp. 171-177--Taylor, ---- 233-241--Walker, -- 16--Wharton, I. -- 30--Moore, I. ---- 128-132--Wheaton, ---- 192-205--Bluntschli, ---- 314, 315--Hartmann, -- 58--Heffter, -- 77--Caratheodory in Holtzendorff, II. pp. 279-406--Gareis, -- 20--Liszt, ---- 9 and 27--Ullmann, ---- 87 and 105--Bonfils, Nos.

520-531--Despagnet, Nos. 419-421--Merignhac, II. pp.

605-632--Pradier-Fodere, II. Nos. 688-755--Nys, I. pp. 438-441, and II. pp. 109-131--Rivier, I. p. 142 and -- 14--Calvo, I. ---- 302-340--Fiore, II. Nos. 755-776, and Code, ---- 283-285 and 976-982--Martens, I. -- 102, II. -- 57--Delavaud, "Navigation ...

sur les fleuves internationaux" (1885)--Engehardt, "Du regime conventionnel des fleuves internationaux" (1879), and "Histoire du droit fluvial conventionnel" (1889)--Vernesco, "Des fleuves en droit international" (1888)--Orban, "Etude sur le droit fluvial international" (1896)--Berges, "Du regime de navigation des fleuves internationaux" (1902)--Lopez, "Regimen internacional de los rios navigables" (1905)--Huber in Z.V. I. (1906), pp. 29 and 159--Hyde in A.J. IV. (1910), pp. 145-155.

[Sidenote: Rivers State property of Riparian States.]

-- 176. Theory and practice agree upon the rule that rivers are part of the territory of the riparian State. Consequently, if a river lies wholly, that is, from its source to its mouth, within the boundaries of one and the same State, such State owns it exclusively. As such rivers are under the sway of one State only and exclusively, they are named "national rivers." Thus, all English, Scotch, and Irish rivers are national, and so are, to give some Continental examples, the Seine, Loire, and Garonne, which are French; the Tiber, which is Italian; the Volga, which is Russian. But many rivers do not run through the land of one and the same State only, whether they are so-called "boundary rivers," that is, rivers which separate two different States from each other, or whether they run through several States and are therefore named "not-national rivers." Such rivers are not owned by one State alone. Boundary rivers belong to the territory of the States they separate, the boundary line[296] running either through the middle of the river or through the middle of the so-called mid-channel of the river. And rivers which run through several States belong to the territories of the States concerned; each State owns that part of the river which runs through its territory.

[Footnote 296: See below, -- 199, and Huber in Z.V. I. (1906), pp. 29 and 159.]

There is, however, another group of rivers to be mentioned, which comprises all such rivers as are navigable from the Open Sea and at the same time either separate or pa.s.s through several States between their sources and their mouths. Such rivers, too, belong to the territory of the different States concerned, but they are nevertheless named "international rivers," because freedom of navigation in time of peace on all of those rivers in Europe and on many of them outside Europe for merchantmen of all nations is recognised by International Law.

[Sidenote: Navigation on National, Boundary and not-National Rivers.]

-- 177. There is no rule of the Law of Nations in existence which grants foreign States the right of admittance of their public or private vessels to navigation on national rivers. In the absence of commercial or other treaties granting such a right, every State can exclude foreign vessels from its national rivers or admit them under certain conditions only, such as the payment of a due and the like. The teaching of Grotius (II. c. 2, -- 12) that innocent pa.s.sage through rivers must be granted has not been recognised by the practice of the States, and Bluntschli's a.s.sertion (-- 314) that such rivers as are navigable from the Open Sea must in time of peace be open to vessels of all nations, is at best an antic.i.p.ation of a future rule of International Law, it does not as yet exist.

As regards boundary rivers and rivers running through several States, the riparian States[297] can regulate navigation on such parts of these rivers as they own, and they can certainly exclude vessels of non-riparian States altogether unless prevented therefrom by virtue of special treaties.

[Footnote 297: See below, -- 178_a_.]

[Sidenote: Navigation on International Rivers.]

-- 178. Whereas there is certainly no recognised principle of free navigation on national, boundary, and not-national rivers, a movement for the recognition of free navigation on international rivers set in at the beginning of the nineteenth century. Until the French Revolution towards the end of the eighteenth century, the riparian States of such rivers as are now called international rivers could, in the absence of special treaties, exclude foreign vessels altogether from those parts of the rivers which run through their territory, or admit them under discretionary conditions. Thus, the river Scheldt was wholly shut up in favour of the Netherlands according to article 14 of the Peace Treaty of Munster of 1648 between the Netherlands and Spain. The development of things in the contrary direction begins with a Decree of the French Convention, dated November 16, 1792, which opens the rivers Scheldt and Meuse to the vessels of all riparian States. But it was not until the Vienna Congress[298] in 1815 that the principle of free navigation on the international rivers of Europe by merchantmen of not only the riparian but of all States was proclaimed. The Congress itself realised theoretically that principle in making arrangements[299] for free navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable tributaries of the latter--namely, the rivers Neckar, Maine, and Moselle--although more than fifty years elapsed before the principle became realised in practice.

[Footnote 298: Articles 108-117 of the Final Act of the Vienna Congress; see Martens, N.R. II. p. 427.]

[Footnote 299: "Reglements pour la libre navigation des rivieres"; see Martens, N.R. II. p. 434.]

The next step was taken by the Peace Treaty of Paris of 1856, which by its article 15[300] stipulated free navigation on the Danube and expressly declared the principle of the Vienna Congress regarding free navigation on international rivers for merchantmen of all nations as a part of "European Public Law." A special international organ for the regulation of navigation on the Danube was created, the so-called European Danube Commission.

[Footnote 300: See Martens, N.R.G. XV. p. 776. The doc.u.ments concerning navigation on the Danube are collected by St.u.r.dza, "Recueil de doc.u.ments relatifs a la liberte de navigation du Danube" (Berlin, 1904).]

A further development took place at the Congo Conference at Berlin in 1884-85, since the General Act[301] of this Conference stipulated free navigation on the rivers Congo and Niger and their tributaries, and created the so-called "International Congo Commission" as a special international organ for the regulation of the navigation of the said rivers.

[Footnote 301: See Martens, N.R.G. 2nd Ser. X. p. 417.]

Side by side with these general treaties, which recognise free navigation on international rivers, stand treaties[302] of several South American States with other States concerning free navigation for merchantmen of all nations on a number of South American rivers. And the Arbitration Court in the case of the boundary dispute between Great Britain and Venezuela decided in 1903 in favour of free navigation for merchantmen of all nations on the rivers Amakourou and Barima.

[Footnote 302: See Taylor, -- 238, and Moore, I. -- 131, pp. 639-651.]

Thus the principle of free navigation, which is a settled fact as regards all European and some African international rivers, becomes more and more extended over all other international rivers of the world. But when several writers maintain that free navigation on all international rivers of the world is already a recognised rule of the Law of Nations, they are decidedly wrong, although such a universal rule will certainly be proclaimed in the future. There can be no doubt that as regards the South American rivers the principle is recognised by treaties between a small number of Powers only. And there are examples which show that the principle is not yet universally recognised. Thus by article 4 of the Treaty of Washington of 1854 between Great Britain and the United States the former grants to vessels of the latter free navigation on the river St. Lawrence as a revocable privilege, and article 26 of the Treaty of Washington of 1871 stipulates for vessels of the United States, but not for vessels of other nations, free navigation "for ever" on the same river.[303]

[Footnote 303: See Wharton, pp. 81-83; Moore, I. -- 131, p. 631, and Hall, -- 39.]

However this may be, the principle of free navigation embodies the rule that vessels of all nations must be admitted without payment of any dues whatever. Yet this principle does not exclude the levy of dues from all navigating vessels for expenses incurred by the riparian States for such improvements of the navigability of rivers as embankments, breakwaters, and the like.[304]

[Footnote 304: As regards the question of levying dues for navigation of the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.]

I should mention that the Inst.i.tute of International Law, at its meeting at Heidelberg in 1888, adopted a _Projet de Reglement international de navigation fluviale_,[305] which comprises forty articles.

[Footnote 305: See Annuaire, IX. p. 182.]

[Sidenote: Utilisation of the flow of rivers.]

-- 178_a_. Apart from navigation on rivers, the question of the utilisation of the flow of rivers is of importance. With regard to national rivers, the question can not indeed be raised, since the local State is absolutely unhindered in the utilisation of the flow. But the flow of not-national, boundary, and international rivers is not within the arbitrary power of one of the riparian States, for it is a rule of International Law[306] that no State is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State. For this reason a State is not only forbidden to stop or to divert the flow of a river which runs from its own to a neighbouring State, but likewise to make such use of the water of the river as either causes danger to the neighbouring State or prevents it from making proper use[307] of the flow of the river on its part. Since, apart from special treaties between neighbouring countries concerning special cases, neither customary nor conventional detailed rules of International Law concerning this subject are in existence, the Inst.i.tute of International Law, at its meeting at Madrid[308] in 1911, adopted the following "_Reglementation internationale des cours d'eau internationaux au point de vue de leur force motrice et de leur utilisation industrielle ou agricole_":--

I. When a stream of water forms the frontier of two States, neither State may, without the consent of the other, and in the absence of a special and valid legal t.i.tle, make any changes prejudicial to the bank of the other State, nor allow such changes to be made by individuals, societies, &c. Moreover, neither State may on its own territory utilise the water, or allow it to be utilised, in such a manner as to cause great damage to its utilisation by the other State or by the individuals, societies, &c., of the other.

The foregoing conditions are also applicable when a lake is situated between territories of more than two States.

II. When a stream of water traverses successively the territories of two or of several States:--

(1) The point at which this stream of water traverses the frontiers of the two States, whether natural or from time immemorial, may not be changed by the establishments of one of the States without the a.s.sent of the other.

(2) It is forbidden to make any alteration injurious to the water, or to throw in injurious matter (coming from factories, &c.).

(3) Water may not be withdrawn by the establishments (especially factories for the working of hydraulic pressure) in such a quant.i.ty as to modify greatly the const.i.tution, or, in other words, the utilisable character or the essential character, of the stream of water on its arrival at the territory nearer the mouth of the river.

The right of navigation by virtue of a t.i.tle recognised by International Law cannot be restricted by any usage whatever.

(4) A State farther down the river may not make, or allow to be made, in its territory any constructions or establishments which might cause danger of flooding a State farther up the river.

(5) The foregoing rules are applicable in the same way to the case in which streams of water flow from a lake, which is situated in one territory, into the territory of another State or the territories of other States.

(6) It is recommended that the States concerned appoint common permanent Commissions which may give decisions, or at least may give their advice, when such new establishments are built, or when such modifications are made in the existing establishments, as may influence the flow of the stream of water situated on the territory of another State.

[Footnote 306: See above, -- 127.]

[Footnote 307: See, for instance, the treaty of Washington of January 11, 1909--Martens, N.R.G. 3rd Ser. (1911), p. 208--between Great Britain and the United States concerning the utilisation of the boundary waters between the United States and Canada.]

[Footnote 308: See Annuaire, XXIV. (1911). See also Bar in R.G. XVII.

(1910), pp. 281-288.]

IV

LAKES AND LAND-LOCKED SEAS

Vattel, I. -- 294--Hall, -- 38--Phillimore, I. ---- 205-205A--Twiss, I. -- 181--Halleck, I. p. 170--Moore, I. ---- 135-143--Bluntschli, -- 316--Hartmann, -- 58--Heffter, -- 77--Caratheodory in Holtzendorff, II. pp. 378-385--Gareis, ---- 20-21--Liszt, -- 9--Ullmann, ---- 88 and 106--Bonfils, Nos. 495-505--Despagnet, No. 407--Merignhac, II.

587-596--Pradier-Fodere, II. Nos. 640-649--Nys, I. pp.

447-450--Calvo, I. ---- 301, 373, 383--Fiore, II. Nos. 811-813, and Code, Nos. 279 and 1000--Martens, I. -- 100--Rivier, I. pp.

143-145, 230--Mischeff, "La Mer Noire et les detroits de Constantinople" (1901)--Hunt in A.J. IV. (1910), pp. 285-313.

[Sidenote: Lakes and land-locked seas State Property of Riparian States.]

-- 179. Theory and practice agree upon the rule that such lakes and land-locked seas as are entirely enclosed by the land of one and the same State are part of the territory of this State. Thus the Dead Sea in Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is Italian territory. As regards, however, such lakes and land-locked seas as are surrounded by the territories of several States, no unanimity exists. The majority of writers consider these lakes and land-locked seas parts of the surrounding territories, but several[309] dissent, a.s.serting that these lakes and seas do not belong to the riparian States, but are free like the Open Sea. The practice of the States seems to favour the opinion of the majority of writers, for special treaties frequently arrange what portions of such lakes and seas belong to the riparian States.[310] Examples are:--The Lake of Constance,[311] which is surrounded by the territories of Germany (Baden, Wurtemberg, Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of Geneva, which belongs to Switzerland and France; the Lakes of Huron, Erie, and Ontario, which belong to British Canada and the United States; the Caspian Sea, which belongs to Persia and Russia.[312]

[Footnote 309: See, for instance, Calvo, I. -- 301; Caratheodory in Holtzendorff, II. p. 378.]