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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 there
Amazon, 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 Empire in the Faber case, sustaining certain Venezuelan decrees suspending traffic on the river Zulia during 1900, 1901 and 1902. Ralston & Doyle's Reports (Vene. zuelan 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; Wcolsey, 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
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 commercially 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.
Secondly, that the law of nations imposes upon such sovereign the duty to yield its consent to the navigation of its own waters by the inhabitants of any other upstream riparian state.
Thirdly, that where a river and its tributaries afford the sole means of water communication between several riparian states and the ocean by reason of a channel of sufficient depth to be of general commercial value, it becomes the duty of any riparian state bordering the lower waters to consent to the free access to countries upstream by all foreign merchant vessels.
Fourthly, that in the absence of arrangement for international regulation, the territorial sovereign may exercise large discretion in the control of navigation within its own waters.
CHARLES CHENEY HYDE.
BOARD OF EDITORS OF THE AMERICAN JOURNAL
OF INTERNATIONAL LAW
CHARLES NOBLE GREGORY, State University of Iowa.
Editor in Chief
JAMES Brown Scott, George Washington University.
GEORGE A. FINCH, P. O. Box 226, Washington, D. C.
THE SECRETARY OF STATE AND THE JAPANESE HONORARY COMMERCIAL
On November 3, 1909, Mr. Keishiro Matsui, Chargé d'Affaires of the Japanese Embassy at Washington, celebrated the birthday of the Mikado by an elaborate dinner, to which were invited the Honorary Commercial ('ommissioners of Japan then in the United States, Secretary Knox, Attorney-General Wickersham, Secretary Ballinger, Commissioner Macfarland, various members of the local board of trade and chamber of commerce, officials of the government and private citizens interested in maintaining the friendly relations and increasing, if possible, the good understanding happily subsisting between the United States and Japan
The occasion was international in character and the presence of the Secretary of State and his address, which was the principal one of the evening, well-nigh invested it with the importance of an official gather. ing. As the address of the Secretary of State set forth in happy and concise language the relations between the United States and Japan, the desire of the United States for the advancement not merely of its own interests but those of the Empire of Japan, the closer need of an enlarged exchange of the products of each, the settlement of controversies that may arise between the countries by the peaceful method of arbitration, it is not inappropriate, indeed it is essential, that it be given in full:
It is my privilege and a great pleasure to welcome you to Washington on behalf of this government, and to express the sincere hope that your journeyings and observations and entertainments in this country have been, and will continue to be, comfortable and profitable and agreeable to you. May health and kindly courtesies and good cheer attend you wherever you go, and may your return voyage across the seas to your own beautiful country be a safe and happy
This is an opportunity of which I gladly avail to speak of the ties which have continued to unite our two nations in amity and essential harmony ever since the days when to American representatives first of all, you opened your doors for the reciprocal exchange of good wiil and civilization and trade. We have learned from you as you from us. We admire you for all of your national gifts and virtue, and not the least for those qualities in which you differ from us; for the eminent qualities drawn from a long and glorious past through which you must teach and we must learn. Is it your word “bushido ” that expresses the source and inspiration of much of the strength and nobility of the Japanese temperament? Then let western chivalry, which also looks back to Jofty origins, learn what eastern "bushido” has to teach.
Because of these ties between us we sometimes share a common grief and mourning. This country mourns with you the untimely, cruel death of the great Prince Ito, which to those among us like the President, who knew him as a personal friend, was a deep personal loss. He was justly a hero of Japan, a great man, a noble self-sacrificing patriot, a statesman of masterly constructive ability. His career is the history of the new Japan, of the Japan which is now one of the great modern powers of the world. A gifted Englishman of letters has told a fine story of the career and work of Yoshida, whose pupil Prince Ito was, and describing Yoshida's intensity of patriotic virtue has used language which well describes Ito himself.
He hoped, perhaps, to get the good of other lands without their evil; to enabla Japan to profit by the knowledge of the barbarians and still keep her inviolate with her own arts and virtues.
Is it too much to say that such hopes of the great minds of Japan are in the way of realization? Japan has set herself in that path, and every friendly anal generous heart believes she will keep the faith and hopes she will attain her goal.