§ 1. National and International Rivers, § 2. Double character of questions relative 25 § 17. The Scheldt § 18. The Elbe, the Weser, the Rivers and (ii) The Danube § 19. The Treaty of Paris, 1856. § 20. The Act of Navigation, 1857; the PAGE 26 28 30 London, 1871 32 § 21. The Congress of Berlin, 1878, and its 33 § 22. The Treaty of London, 1883 35 § 23. Results. (iii) The Conference of Berlin, 1884–5 35 § 24. Proceedings of the Conference . 36 37 38 III. CONCLUSIONS (i) § 27. The Assent of the Civilized World II. Articles CVIII-CXVI of the Final Act of the III. Articles XV-XIX of the Treaty of Paris, 1856 INTRODUCTION § 1. National and International Rivers. (a) A navigable river which lies wholly within the territory of one State is described as national. Such a river forms part of the territory, and is, according to general opinion and practice, subject to the exclusive control of the territorial power, which, however, frequently concedes to other States, by convention or as a matter of comity or policy, a right of navigation for purposes of access to its ports. 1 (b) A river navigable from the sea, which flows through or along 1 the territory of two or more States 2 is described as international. Between a national and an international river, there is thus this first great difference that, while the former is subject to the exclusive jurisdiction of one State, the latter is subject in parts to the several jurisdictions of the riparian States. In spite of this political 1 When the international river separates the territories of two States it is called a boundary river; and the question then arises where in default of special agreement-the line of demarcation of the jurisdiction of either State is presumed to be drawn (cf. infra, p. 47). 2 For a somewhat different terminology, cf. Oppenheim, International Law, i, pp. 239-40. Professor Oppenheim's fourfold classification emphasizes the fact that free navigation has not yet been recognized on all rivers flowing through or along the territory of two or more States, while his definition of international rivers (§ 176), which requires free navigation for the merchantmen of all nations, reduces-when the special regulations are taken into account the number of such rivers to a very small number indeed, as will appear from what follows (Part II). 3 For an illustration of the legal difference, cf. Moore, Digest, i, p. 626, quoting Mr. Rush. B division into sections, however, the river preserves its organic unity; and, as it is in its physical entirety that the river is most eminently and perfectly an economic instrument, the coexistence over it of several jurisdictions with a natural tendency to exclusivism creates difficulties which place the question of international rivers among the thorniest problems of the Law of Nations. § 2. Double character of questions relative to International Rivers. Whenever, in the case of an international river, a riparian State adopts a measure relative to such river or its use, not only are the effects of the measure felt by the State itself, but they necessarily react on the other riparian States and possibly even on non-riparian States. In other words the effects of the measure are double, being at the same time internal and external, or to put it in another way-national and international. Such is at the present day the complexity of international relations and the intricate interdependence of the interests of all nations. It was the awakening sense of this interdependence which, more than a century ago, brought the question of international rivers into prominence and led to a solution of the problem, which, though in some points defective and in others insufficient, has been the foundation of the law of international rivers-in Europe at least-ever since. § 3. The problem of the opening up of International Rivers. On the practical side the problem raised by the existence of international rivers is dominated by the question who may navigate an international river, and with what degree of freedom? |