With respect to the navigation of the river St. John where it passes through British territory, Article III of the treaty of August 9, 1842, provided for the free access to the sea of lumber (not manufactured) grown in such parts of Maine watered by the river St. John, or its tributaries, through that waterway to and from the seaport at its mouth, and to and around the falls of the river; such lumber while within the Province of New Brunswick to be treated as if it were the produce of that Province. Furthermore, there was to be no interference with the regulations not inconsistent with the terms of the treaty made by the sovereign of both banks.16

According to Article II of the treaty of June 15, 1846, the north branch of the Columbia River within American territory as far as the junction with the main stream, and thence down that stream to the sea was opened to the Hudson's Bay Company and to all British subjects "trading with the same," subject, however, to such regulations not inconsistent with the treaty as the United States might prescribe.17 Professor Moore calls attention to the fact that:

The treaty contains no stipulation with regard to the navigation of the river within British territory.18

The Colorado, and the Rio Grande

By its treaties with Mexico concerning the Colorado and the Rio Grande rivers, the United States, the upper riparian proprietor,

16 U. S. Treaty Vol. (1776-1887), 434-435. Concerning the right of New Brunswick under the treaty to impose an export duty on all timber shipped from the province, including that floated down from Maine, see Moore, Int. L. Dig., I, 636-637, and documents there cited.

Article XXXI of the treaty of May 8, 1871, contained an engagement by Great Britain to urge upon the Parliament of the Dominion and the Legislature of New Brunswick that no export or other duty should be imposed on lumber of any kind in that part of Maine watered by the St. John and its tributaries, and floated down that river to the sea, when the same was shipped to the United States from the Province of New Brunswick. (U. S. Treaties in Force, 1904, 345.)

17 U. S. Treaties in Force, 1904, 325.

18 Int. L. Dig., I, 639. Concerning the claims of the Hudson's Bay Company, see Moore, Int. Arbitrations, I, 253, 262. See communication of Mr. Bayard, Sec. of State, to Mr. Lundy, July 25, 1885, in which a distinction is made between the rights of the upper and lower riparian inhabitants. 156 MS. Dom. Let., 358; Moore, Int. L. Dig., I, 639.

secured rights of navigation over the lower waters to the sea where such streams pass wholly through Mexican territory. It is to be observed that no provisions have been made for the free navigation by inhabitants of Mexico of such waters as pass through the territory of the United States.19

Conclusions

From the practice of the United States concerning rivers in part traversing or bounding its own territory, the following conclusions may be drawn:

First, no right of navigation has been exercised in foreign territory or permitted in American territory except by virtue of a treaty. Second, no treaty has declared it to be a principle of international law that international navigable rivers are generally open to navigation by vessels of foreign riparian or non-riparian states.20

Third, the United States, as upstream proprietor, has on one occasion accepted a treaty the terms of which justify the contention that the right of navigation was conferred as a grant by the lower proprietor; and on others has made substantial concessions for the privi lege of access to the sea.

Fourth, in two cases where the upper stream has passed wholly within the territory of a single state, no permission has been given to inhabitants of the lower to navigate the foreign waters.

Fifth, the right of a state to make all reasonable regulation for all navigation within its own territorial waters has been generally recognized.

19 See Articles VI and VII of the treaty of Feb. 2, 1848, the latter of which contains the stipulation that neither Government “shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right [of free navigation], not even for the purpose of favoring new methods of navigation. Nor shall any tax or contribution, under any denomination or title, be levied upon vessels or persons navigating the same, or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores." U. S. Treaty Vol. (1776–1887), 685. See also, Article IV of the treaty of December 30, 1853, U. S. Treaties in Force, 1904, p. 529. The substance of relevant provisions of the two treaties is contained in Moore, Int. L. Dig., I, 639.

20 Compare, however, Art. XXVI of treaty between the United States and Bolivia of May 13, 1858, with respect to the rivers Amazon and La Plata, U. S. Treaty Vol. (1776-1887), 98.

INTERNATIONAL STREAMS

IN SOUTH AMERICA

South America is traversed by systems of rivers which, together with their numerous confluents, afford navigable channels of access to the sea to several countries, and so furnish indispensable means of communication with the outside world. To oversea as well as riparian states bordering the upper waters, the vast importance of free navigation has been apparent. The United States has constantly urged the opening of such waters to all maritime commerce, and has entered into treaties favorable to that end.21 One of them with Bolivia, declares freedom of navigation to be a principle of international law.22 Others refer to it as a concession of control by the territorial sovereign.23

Brazil, across whose territory the main waters of the Amazon and its tributaries make their way to the ocean, asserts that the right of free navigation claimed by any foreign state depends wholly upon treaty.24 By a decree of December 7, 1866, Brazil declared the Amazon should be "opened to vessels of all nations" from September 7, 1867, as far as the frontiers of Brazil.25

21 Concerning the efforts of the United States to secure free navigation of the Amazon, see Moore, Int. L. Dig., I, 640-645, and documents there cited; Schuyler, American Diplomacy, 329-344.

Mr. Marcy, Sec. of State, in a communication to Mr. Trousdale, Minister to Brazil, Aug. 8, 1853, declared: "You are instructed to claim for our citizens the use of this natural avenue of trade. This right is not derived from treaty stipulations it is a natural one- as much so as that to navigate the ocean - the common highway of nations. By long usage it is subject to some restrictions imposed by nations through whose territories these navigable rivers pass. This right, however, to restrict or regulate commerce, carried to its utmost extent. does not give the power to exclude such rivers from the common use of nations." (MS. Inst. to Brazil, XV, 215; Moore, Int. L. Dig., I, 642, 643.)

22 See Article XXVI, treaty of May 13, 1858, U. S. Treaty Vol. (1776–1887), 98. 23 Thus, Article I of the treaty with the Argentine Confederation of July 10, 1853, declares that the country "in the exercise of her sovereign rights, concedes the free navigation of the Rivers Paraná and Uruguay, wherever they may belong to her." (U. S. Treaties in Force, 1904, 22.) See also, Article II of the treaty with Paraguay of Feb. 4, 1859, U. S. Treaties in Force, 1904, 618.

24 See Baron Rio-Branco, Minister for Foreign Affairs, to Mr. Seeger, American Consul-General, February 20, 1903, U. S. For. Rel., 1903, 43; Moore, Int. L. Dig.. I, 646.

25 As to the various Brazilian decrees with reference to the navigation of the

By a law of May 14, 1869, and a decree July 1, 1869, Venezuela opened the Orinoco and its branches to foreign merchant vessels.26

The right of South American riparian countries to regulate navigation within their own domain had been generally recognized.27 The enjoyment of privileges of navigation by foreign vessels has always been the result of a treaty or of the domestic decree of the territorial sovereign.

The navigation of European rivers such as the Rhine and the Danube has long been the subject of international agreement.28 The Act of the Congress of Vienna of 1815 announced the principle of the freedom of the entire courses of international rivers to the commerce of all nations, subject, however, to regulations of police; and declared also the necessity for international control or regulation by representatives of the riparian states.29 The principle was thereAmazon, see Moore. Int. L. Dig., I, 645; Brit. & For. State Pap., LVIII, 551, 552-567; Diplomatic Cor., 1867, II, 256, 257; U. S. For. Rel., 1899, 123.

With respect to the permission granted by Brazil at various times to American warships, and particularly to the U. S. S. Wilmington, to ascend the upper Amazon, see U. S. For. Rel., 1899, 115-124; Moore, Int. L. Dig., I, 648-649.

26 Moore, Int. Arbitrations, II, 1696-1698. Concerning the concession in 1873 to General Perez of an exclusive right of navigating the Orinoco, see id., II, 1701, citing Sen. Ex. Doc., 139, 50 Cong. 1, sess. 32.

See also, extract from report of Colombian Minister of Foreign Affairs in 1894, U. S. For. Rel., 1894, 193, 200; Moore, Int. L. Dig., I, 651; also, reasoning of the Umpire in the Faber case, sustaining certain Venezuelan decrees suspending traffic on the river Zulia during 1900, 1901 and 1902. Ralston & Doyle's Reports (Venezuelan Arbitrations, 1903), 600, 620; also bibliographical note of the reporters, id., 603.

27 As to the effect of the Brazilian Constitution on the right of that state to impose transit taxes, see opinion of Mr. L. Renault, U. S. For. Rel., 1903, 38–39. Concerning the closing to vessels in the foreign trade of certain channels of the Orinoco by Venezuela in 1893, as a regulation of navigation in that river, and the attitude of Mr. Gresham, Secy. of State, see U. S. For. Rel., 1893, 729; id., 1894, 794; Moore, Int. L. Dig., I, 649–650; also additional documents there cited. 28 Concerning the navigation of European rivers, see Moore, Int. L. Dig., I, 628-631, and authorities cited; Woolsey, 6th ed.. 80-81; Schuyler, American Diplomacy, 345-363; Westlake, I, 142–151.

29 See Articles 108 to 117, N. R. 11, 427-429; see also, Moore, Int. L. Dig., I, 628; Oppenheim, I, 227; Schuyler, American Diplomacy, 345-363.

upon applied to the Rhine, and provision made for its extension to certain other streams. Its application to the Danube was accomplished by Article XV of the treaty of peace of Paris of March 30, 1856.30

GENERAL CONCLUSIONS

The practice of nations generally with respect to the navigation of international rivers has been based upon commercial necessity, and has, therefore, been shaped by geographical conditions rather than by any other. In North America since the Mississippi has become a national stream, but three countries, and in most discussions only the United States and Great Britain, have been interested in the navigation of their common rivers. European streams have been ommercially important to several states, riparian and non-riparian, within relatively close proximity to each other. Freedom of navigation to vessels of commerce generally has been a natural consequence. Access to those rivers has, however, for geographical reasons been of relatively small consequence to maritime states of other continents.

South American rivers, on the other hand, as has been observed, have afforded a sufficient and solitary channel of communication between the Atlantic and several states remote therefrom. For that reason freedom of navigation has been a matter of concern to oversea states, however distant. Such nations have, therefore, sought to secure freedom of navigation.

The practice of maritime states during the past century or more justifies the following conclusions:

First, that any right of navigation is dependent upon the consent of the territorial sovereign.

30 N. R. G., XV, 776, translated in Westlake, I, 149. See also, Moore, Int. L. Dig., I, 630.

The Congo: Art. II of the General Act of the Berlin Conference of 1885, made provision for the free navigation of the Congo and the Niger, as well as their tributaries, and established an international commission for their control. N. R. G., 2 ser., X, 417, translated in Westlake, I, 155; see also, British Order in Council regulating navigation of the Niger, August 10, 1903, Brit. & For. State Pap., XCVI, 230.

Concerning the opening of the Persian river Karun in 1888 to foreign merchant vessels, see Moore, Int. L. Dig., I, 652.