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THE NAVIGATION OF BOUNDARY RIVERS

How Regulated. The liberal methods, now so generally applied in the solution of questions having to do with the treatment of boundary rivers, date from the Congress and treaty of Vienna in, 1815. On the few previous occasions in which such questions had been made the subject of treaty stipulation, the right of public navigation, if recognized at all, had been hampered with needless and burdensome restrictions, originating in the mutual jealousies of the interested parties, and but little calculated to favor the development of commerce or to promote interstate intercourse. The treaty of Vienna, however, inaugurated a marked change in this regard. The sixteenth annexe of that instrument contains a body of fundamental principles, in accordance with which detailed rules were prepared by the states locally interested, for the regulation of navigation of six important European rivers-the Rhine, Main, Moselle, Neckar, Meuse, and Scheldt.. The 109th article declares that these streams are thrown open to the commerce of all nations, from the points where they become navigable to the sea. At different times between 1815 and 1856 arrangements, conceived in the same liberal spirit, were entered into with reference to the Elbe, Vistula, Weser, and Po; and in 1835, by a treaty between Spain and Portugal, the navigation of the Douro was declared common to the subjects of both powers.'

Case of the Danube. As Turkey was not a party to international law at the time of the negotiation of the treaty of Vienna, the provisions of that instrument were not extended

government which is intrusted by the Constitution with the care of its foreign relations, especially if sanctioned by the legislative power.Foster vs. Neilson, II Peters, p. 253. Grotius, book vii. chap. iii; Vattel, liv. i. chap. xxii.; I De Martens, § 45; I Halleck, p. 146; Klüber, § 134; Bluntschli, §§ 298-300; I Dig. Int. Law, § 30; Revue de Droit Inter

national, vol. xi. p. 363; vol. xiii. p. 187; vol. xiv. p. 122; vol. xv. p. 5; Ibid. pp. 340, 437, 547; vol. xvi. pp. 360, 551; vol. xviii. p. 159.

1I Halleck, pp. 147-151; I Phillimore, pp. 195-199; Lawrence, Int. Law, § 112; Hall, p. 130; I Twiss, $$ 149-152; Revue de Droit International, vol. xviii. p. 96; Ibid. vol. xix. p. 253; Bluntschli, §§ 313–316,

to the Danube. The first attempt to regulate the navigation of that river is found in the treaty of Bucharest, entered into between Turkey and Russia in 1812. By the fourth article of that treaty it was agreed that the boundary line between the two states should follow the left bank of the Danube from its junction with the Pruth to its mouth at Kilia, on the Black Sea; and the navigation of both rivers was declared to be free to the subjects of the signatory powers. The Danube enters the Black Sea through three principal channels. The most northern of these, which is known as the Kilian mouth, carries by far the greater part of its waters to the sea, and is the one best adapted to purposes of navigation. The central, or Sulina channel, discharges but a small part of the volume of the stream. The southern, or St. George's channel, carrying about one-third of the volume of the river, reaches the sea, through several mouths, at a point about twenty English miles to the south of the Sulina channel. By the Treaty of Adrianople, in 1815, to which Turkey and Russia were the contracting parties, the Sulina mouth, which had been left in the possession of Turkey by the former treaty, was acquired by Russia, that power binding itself to maintain its channel at a sufficient depth to admit vessels at all times. This stipulation does not seem to have been rigidly observed by Russia, and its failure to maintain a navigable channel was made the subject of remonstrance, at different times, by several European powers. No change was made in the existing treaties, however, and the question remained in this condition until the close of the Crimean War.

By the treaty of Paris, in 1856, to which instrument Turkey was a signatory party, the Danube was placed upon the same footing as the other great rivers of Europe. A commission was created for the purpose of erecting and maintaining such engineering works at the mouth of the river as were, or might become, necessary in the interest of navigation. The commission began its labors in 1857. The Sulina mouth was chosen as the one most susceptible of improvement, and suitable works were undertaken for its betterment. The funds for

this purpose. were supplied by Turkey during the years between 1857 and 1860; from 1860 onward they were obtained by a tax levied upon all vessels entering the river. The treaty of March 13, 1871, extended the operations of the Danubian Commission for a further period of twelve years; and a new and significant step was taken by an agreement of the powers to a declaration guaranteeing the permanent neutrality of the works of improvement at the mouth of the river.'

The cases of the Mississippi and St. Lawrence rivers, in the United States, gave rise to much controversial discussion.

Case of the Mississippi. The peace of Paris, in 1763, brought to a close the long series of wars for dominion between England and France, to which Spain had become a party, as an ally of France, in 1761. By the treaty of Paris the Mississippi River had been recognized as the boundary between the possessions of England and France in America, from its source to its junction with the Iberville, an eastern tributary, connecting it with the lake system of its lower basin. From that point the boundary line followed the course of the Iberville, through lakes Pontchartrain and Maurepas, to the Gulf of Mexico. The line of the Iberville separated Florida and Louisiana, which were ceded by the treaty, the former to England and the latter to Spain, and the right of navigating the Mississippi was secured to the subjects of Great Britain from its source to the sea.

The treaty of peace between England and the United States, which terminated the war of the Revolution, was signed on September 3, 1783. On the same day a treaty was negotiated between England and Spain, by which the provinces of East and West Florida were retroceded to Spain; thus giving to Spain undisputed control over the lower waters of the river, from its mouth to its intersection by the thirty-first parallel of north latitude; the course of the river north of that point forming the boundary between the United States and the French possessions in North America. This state of affairs

I Phillimore, pp. 198, 199; Foreign Relations of United States,

1878, pp. 855-894; I Twiss, §§ 151, 152; Lawrence, Int. Law, § 112.

gave rise to a controversy between Spain and the United States, as to the right of citizens of the latter power to navigate that part of the river lying wholly within Spanish territory..

On the part of the United States it was claimed that the treaty of 1763, between England and Spain, had given to the subjects of Great Britain the right to navigate the river from its source to the sea. This treaty had, in fact, created a territorial servitude,' which had not been extinguished or repudiated by either of the treaties of 1763 or 1783. It was fair to presume, therefore, that it still existed, and that the subsequent transfer of territory on the east bank of the river had been made subject to the right of navigation which was then enjoyed by the inhabitants of its upper waters. A provision of the Roman law was cited in behalf of the United States, by which all navigable rivers were held to be "so far public property that a free passage over them was open to everybody, and the use of their banks for the anchorage of vessels, lading and unlading cargo, and acts of the like kind, was regarded as incapable of restriction by any right of private domain."" It was also claimed, on the part of the United States, that the Mississippi River furnished the only practicable outlet to the sea for all the products of the upper valley. The claim, based upon this fact, was held by the American negotiators to be of sufficient importance to constitute a perfect right at international law. These claims were rejected by Spain, whose right to control the navigation of the lower courses of the river was based upon the fact of its territorial jurisdiction; The position assumed by the United States was not regarded as a sound one in accordance with the provisions of international law as then understood, and the controversy was brought to an end by the treaty of October 20, 1795, between the United States and Spain. By the terms of that treaty the navigation of the Mississippi was to be free to both parties throughout its entire

1

For a description of servitudes,

see p. 68.

'İ Phillimore, p. 189, § 155; In

stitutes, lib. ii. tit. i. §§ 1-5; Digest, lib. i. tit. viii. § 5.

extent. The Americans were to enjoy a right of deposit at New Orleans for three years, at the end of which period either that privilege was to be continued, or an equivalent establishment was to be assigned them at some other convenient point on the banks of the Lower Mississippi.' The question of navigating this important stream was finally settled by the purchase of Louisiana, in 1803, and of Florida in 1819, which placed the river for its entire length within the territorial jurisdiction of the United States.

Case of the St. Lawrence.-The case of the St. Lawrence presents many considerations similar in character to those discussed in the case of the Mississippi. Its navigation was a matter of great importance to the United States for the reason that it furnished, at that time, the only outlet to the sea for commerce originating in the great lake system of North America. These lakes, with the exception of Lake Michigan, which lies wholly within the territory of the United States, lie upon, and form a part of, the boundary between the United States and the British possessions in North America. From the head of Lake Superior to the source of the St. Lawrence in Lake Ontario, and along the course of that river to its intersection by the northern boundary of the United States, the right of navigation was determined, beyond question, by the universally accepted rules of international law, and belonged jointly to the two powers. The lower course of the river, from its intersection by the forty-fifth parallel of north latitude to its mouth in the Gulf of St. Lawrence, lay entirely within the British territory. The question between the two governments, therefore, had exclusively to do with the right of navigation of the British, or lower, section of the river.

On the part of the United States it was contended, as in the case of the Mississippi, that, as the lower course of the river formed the only outlet for commerce arising in a large portion of the territory of the United States which lay upon the upper lakes, its navigation became a perfect right at inter

'Hildreth, History of the United States, vol. iv. p. 569; Treaties and

Conventions of the United States, 1789-1887, pp. 1007, 1017.

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