Part II.

§ 197a. Navigation of the Danube.

to be uniform, and as favourable as possible to the commerce of all nations (s).

By the Annexe xvi. to the final act of the Congress of Vienna, the free navigation of the Rhine is confirmed "in its whole course, from the point where it becomes navigable to the sea, ascending or descending;" and detailed regulations are provided respecting the naviga tion of that river, and the Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt, which are declared in like manner to be free from the point where each of these rivers becomes navigable to its mouth. Similar regulations respecting the free navigation of the Elbe were established among the powers interested in the commerce of that river, by an Act signed at Dresden the 12th December, 1821. And the stipulations between the different powers interested in the free navigation of the Vistula and other rivers of ancient Poland contained in the treaty of the 3rd May, 1815, between Austria and Russia, and of the same date between Russia and Prussia, to which last Austria subsequently acceded, are confirmed by the final act of the Congress of Vienna. The same treaty also extends the general principles adopted by the congress relating to the navigation of rivers to that of the Po(†).

These principles were applied to the Danube by the Treaty of Paris, 1856 (u). It was then declared that "The navigation of the Danube cannot be subjected to any impediment or charge not expressly provided for by the stipulations contained in the following articles; in consequence there shall not be levied any toll founded solely upon the fact of the navigation of the river, nor any duty upon the goods which may be on board of vessels. The regulations of police and of quarantine to be established for the safety of the States separated or traversed by that river, shall be so framed as to facilitate, as much as possible, the passage of vessels. With the exception of such regulations, no obstacle whatever shall be opposed to free navigation." A European commission was then appointed to manage the navigation of the river, and to carry out the works necessary for this purpose (x).

(s) Wheaton, Hist. Law of Nations, pp. 498-501.

(t) Mayer, Corpus Juris Germanici, tom. ii. pp. 224-239, 298. Acte Final,

art. 14, 118, 96.

(u) Art. xv. Hertslet, Map of Europe by Treaty, vol. ii. p. 1257.

(x) Art. xvii.

In 1865, a public Act was promulgated by the parties to the Treaty of Paris, by which all the works of the Danube Commission, together with its members and servants, were declared neutral in case of war. This principle was re-affirmed in the Treaty of 1871; but the right of Turkey, as territorial power, to send vessels of war into the river was maintained (y). When war broke out between Russia and Turkey in 1877, some stoppage of the navigation became inevitable, as the lower part of the river was at first the actual seat of war. Both Austria and England addressed notes on the subject to the Governments of Russia and Turkey. It was admitted that the incidents of war might cause temporary obstacles to the navigation of the Danube; but a demand. was made that this exceptional situation should not be invoked as a precedent to the prejudice of the liberty of navigation, and that the measures restricting this liberty, which might become indispensable, should be regulated on international principles, and should not overstep the limits traced by the most imperious necessity. As soon as the circumstances of the war permitted, the belligerents were immediately to restore the freedom of navigation (). To this both parties replied, that they would confine their restrictions on the freedom of neutral commerce to the narrowest limits that the necessities of the war would admit, and that these restrictions would be removed as soon as possible (a). Throughout the discussion it was admitted that the existing international arrangements did not imply the absolute neutrality of the river way. The works of the Danube Commission could alone claim this exemption from the effects of war.

By Articles 52-57 of the Treaty of Berlin, all fortresses on the Danube, from the Iron Gates downwards, were to be razed, and no new ones erected, and no vessel of war, except light police and customs vessels, is to navigate the river below the same point. Roumania is added to the European Commission, and the functions of the Commission are extended to Galatz (b). By a treaty signed in London, 10th March, 1883, between the signatories to the Berlin Treaty, the duration of the commission is prolonged to 24th April, 1904, and its authority is extended to Ibraila, which is the limit to which great ships are able to ascend (c).

Chap. IV.

Neutrality of § 197b. the River and

the Commis

sion.

the Rhine.

$198. The interpretation of the above stipulations respecting Navigation of the free navigation of the Rhine, gave rise to a controversy between the kingdom of the Netherlands and the other States interested in the commerce of that river.

(y) Parl. Papers, Turkey (No. 29), 1878, p. 25. Hertslet, Map, vol. iii. p. 1922.

(z) Parl. Papers, Turkey (No. 25), 1877, pp. 236, 294.

(a) Ibid. Turkey (No. 26), 1877, pp. 26, 113.

(b) Appendix F.

(c) Parl. Papers, 1883, Danube, No. 5; Holland, p. 233.

Part II.

The Dutch government claimed the exclusive right of regulating and imposing duties upon the trade, within its own territory, at the places where the different branches into which the Rhine divides itself fall into the sea. The expression in the Treaties of Paris and Vienna “jusqu'à la mer," to the sea, was said to be different in its import from the term "dans la mer," into the sea; and, besides, it was added, if the upper States insist so strictly upon the terms of the treaties they must be contented with the course of the proper Rhine itself. The mass of waters brought down by that river, dividing itself a short distance above Nimeguen, is carried to the sea through three principal channels, the Waal, the Leck, and the Yssel; the first descending by Gorcum, where it changes its name for that of the Meuse; the second approaching the sea at Rotterdam; and the third, taking a northerly course by Zutphen and Deventer, empties itself into Zuyderzee. None of these channels, however, is called the Rhine; that name is preserved to a small stream which leaves the Leck at Wyck, takes its course by the learned retreats of Utrecht and Leyden, gradually dispersing and losing its waters among the sandy downs at Kulwyck. The proper Rhine being thus useless for the purposes of navigation, the Leck was substituted for it by common consent of the powers interested in the question; and the government of the Netherlands afterwards consented that the Waal, as being better adapted to the purposes of navigation, should be substituted for the Leck. But it was insisted by that government that the Waal terminates at Gorcum, to which the tide ascends, and where, consequently, the Rhine terminates; all that remains of that branch of the river from Gorcum to Helvoetsluys and the mouth of the Meuse is an arm of the sea, inclosed within the territory of the kingdom, and consequently subject to any regulations which its government may think fit to establish.

;

On the other side, it was contended by the powers interested in the navigation of the river, that the stipulations in the Treaty of Paris, in 1814, by which the

sovereignty of the House of Orange over Holland was Chap. IV. revived, with an accession of territory, and the navigation of the Rhine was, at the same time, declared to be free "from the point where it becomes navigable to the sea," were inseparably connected in the intentions of the allied powers who were parties to the treaty. The intentions thus disclosed were afterwards carried into effect by the Congress of Vienna, which determined the union of Belgium to Holland, and confirmed the freedom of the navigation of the Rhine, as a condition annexed to this augmentation of territory which had been accepted by the government of the Netherlands. The right to the free navigation of the river, it was said, draws after it, by necessary implication, the innocent use of the different waters which unite it with the sea; and the expression "to the sea" was, in this respect, equivalent to the term "into the sea," since the pretension of the Netherlands to levy unlimited duties upon its principal passage into the sea would render wholly useless to other States the privilege of navigating the river within the Dutch territory (d).

$ 199. After a long and tedious negotiation, this question was The Rhine. finally settled by the convention concluded at Mayence, the 31st of March, 1831, between all the riparian States of the Rhine, by which the navigation of the river was declared free from the point where it becomes navigable into the sea (bis in die See), including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel through the first-named watercourse, and by Dordrecht and Helvoetsluys through the latter, with the use of the artificial communication by the canal of Voorne with Helvoetsluys. By the terms of this treaty the government of the Netherlands stipulates, in case the passages by the main sea by Briel or Helvoetsluys should at any time become innavigable, through natural or artificial causes, to indicate other watercourses for the navigation

(d) Annual Register for 1826, vol. lxviii, pp. 259-363.

Part II. and commerce of the riparian States, equal in convenience to those which may be open to the navigation and commerce of its own subjects. The convention also provides minute regulations of police and fixed tollduties on vessels and merchandise passing through the Netherlands territory to or from the sea, and also by the different ports of the upper riparian States on the Rhine (e).

$ 200. Navigation of the Mississippi.

By the Treaty of Peace concluded at Paris in 1763, between France, Spain, and Great Britain, the province of Canada was ceded to Great Britain by France, and that of Florida to the same power by Spain, and the boundary between the French and British possessions in North America was ascertained by a line drawn through the middle of the river Mississippi from its source to the Iberville, and from thence through the latter river and the lakes of Maurepas and Pontchartrain to the sea. The right of navigating the Mississippi was at the same time secured to the subjects of Great Britain from its source to the sea, and the passages in and out of its mouth, without being stopped, or visited, or subjected to the payment of any duty whatsoever. The province of Louisiana was soon afterwards ceded by France to Spain; and by the Treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The independence of the United States was acknowledged, and the right of navigating the Mississippi was secured to the citizens of the United States and the subjects of Great Britain by the separate treaty between these powers. But Spain having become thus possessed of both banks of the Mississippi at its mouth, and a considerable distance above its mouth, claimed its exclusive navigation below the point where the southern boundary of the United States struck the river. This claim was resisted, and the right to participate in the navigation of the river from its source to the sea was insisted on by the United States, under the treaties of 1763 and 1783, as

(e) Martens, Nouveau Recueil, tom. ix. p. 252.