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The regime of navigation on international waterways Part II: The territorial scope of the regime of free navigation *

Published online by Cambridge University Press:  07 July 2009

Béla Vitányi
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Extract

In Article 5 of the Paris Peace Treaty of 30 May 1814 the Contracting Parties agreed to establish a regime of free navigation on the Rhine, at the same time giving a mandate to the forthcoming Congress of Vienna to establish similar navigation regimes for other rivers “which, in their navigable course, separate or traverse different States”. This idea was given substance in the definition of the international regime in the Final Act of the Congress of Vienna of 9 June 1815. Article 108, in particular, speaks of States “separated or traversed by the same navigable river”, while Article 109 provides that “the navigation of the rivers, along their whole course, referred to in the preceding article, from the point where each of them becomes navigable, to its mouth, shall be entirely free … ” So, the application of the rules of free navigation is dependent upon two criteria: the first, of a physical character, is that the water-course possesses by reason of its natural conditions the technical qualities summarized in the word “navigability”. The seond, of a political character, is the condition that the water-course borders on or passes through more than one State. But, in conformity with the basic idea of the Act of Vienna, which regulates the navigation of rivers on the basis of the community of interests of the riparians, for a waterway to be governed by this Act it is necessary that one and the same section of it fulfils both criteria. Consequently, a water-course, the non-navigable upper course of which traverses one State while the whole of its navigable course is in the territory of another State, is not covered by the Act of Vienna.

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Netherlands Yearbook of International Law , Volume 6 , December 1975 , pp. 2 - 58
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Copyright © T.M.C. Asser Press 1975

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References

1. Martens, N.R. Vol. 2, p. 1 et seq.; B.F.S.P. p. 1038 et seq.

2. Martens, N.R. Vol. 2, p. 379 et seq.; 2 B.F.S.P. p. 52 et seq.

3. Ulpian's definition “Flumen a rivo magnitudine discernendum est aut existimatione circumcolentium” (Dig. lib. XLIII, tit. XII, 1, 1) has preserved its value. As Fauchille explains: “The word ‘fleuve’ (stream) is used specifically for rivers running directly into the sea; those leading to it by the intermediary of a ‘fleuve’ (stream) are called ‘rivières’ (rivers) (Traité de droit international public, Vol. 1 part 2, (1925) p. 423Google Scholar). Yet, in treaty practice, as in legal literature, the terms are used interchangeably and too arbitrarily for any rule to be discerned.

4. The question whether a waterway traverses or separates States does, however, play a part in relation to customs formalities for persons and goods in transit on rivers.

5. “The independence of States is particularly manifest in the free and exclusive use of their waters…rivers, canals, lakes and ponds. Such use is subject to restriction only where the State wholly or partly renounces its exclusive use under a Convention in which it has undertaken to admit the competition of any other State.” Klüber, , Droit des gens moderne de l'Europe, Vol. 1 (1819) p. 122.Google Scholar

6. Disputatio historica juris gentium continens novarum legum de fluminium communium navigatione (1835).Google Scholar

7. Martens, Supp. Vol. 4 p. 36 et seq.

8. Du régime conventionnel des fleuves internationaux (1879).Google Scholar

9. The designation ‘international’ for waterways the navigation of which is governed by a convention was not used in international treaties until the Peace Treaties of 1919/20.

10. Martens, N.R.G. 2nd series, Vol. 10, p. 414et seq.; Israel, F.L., Major Peace Treaties of Modern History (1698–1967), Vol. 2 (1967) p. 1081 et seq.Google Scholar

11. 9 Annuaire (1887–1888) p. 166 et seq.

12. “Das Stromgebietsrecht und die internationale Flussschiffahrt”, Handbuch des Völkerrechts, Holtzendorff, ed., Vol. 2 (1887) p. 302.Google Scholar

13. See “Schiffahrtfreiheit”, Wörterbuch des Völkerrechts, Schlochauer, ed., Vol. 3 (1962) pp. 206–207.Google Scholar

14. A number of well-known international lawyers take similar views. Cf. Dupuis, , “Liberté des voies de communication”, 2 Hague Receuil (1924), p. 230Google Scholar; Lederle, , Das Recht der internationalen Gewässer, (1920) p. 83Google Scholar; Cavaglieri, , “Règles générales du droit de la paix, 26 Hague Recueil (1929) pp. 431–432Google Scholar; Winiarski, , “Principes généraux du droit fluvial international”, 45 Hague Recueil des cours, (1933) p. 92Google Scholar, where the author's opinion contrasts with p. 80 of the same work; Kaufman, , “Règles générales du droit de la paix”, 54 Hague Recueil (1935) p. 388Google Scholar; Guggenheim, , Traité de droit international public, Vol. 1 (1953) p. 406Google Scholar; Verdross, , Völkerrecht, , 4th ed. (1959) p. 505Google Scholar; Scheuner, , Questions juridiques relatives à la navigation du Rhin (1956) pp. 92–94.Google Scholar

15. “General international law is subject to international treaty law, and where a matter is governed by treaties, it is to be judged exclusively by such treaties. Now, since the re-establishment of peace, in 1814/15, the navigation of rivers has been a subject for special provisions between different States; thus, the present-day political Code of Europe is based not on abstract principles, but on treaties … These treaties have considerably altered the privileges which the law of nations conferred on Governments with regard to the navigation of rivers. Governments used to have the privilege of closing them, on their territories, to the commerce of other nations. That privilege was abandoned. They had the privilege of regulating their use arbitrarily, a privilege which was modified. The same fate befell the institutions of forced call and transhipment privileges concerning custums, etc. Some of them abolished, others changed, and they all were subjected to the European maxim of free navigation”. Martens, N.R. Vol. 2, pp. 312–313.

16. I.L.A. Report of the 47th Conference (1956) pp. 239–240.Google Scholar

17. Treaty of Versailles, Martens, N.R.G. 3rd series, Vol. 11 p. 323 et seq.; Treaty of Saint-Germain, id. Vol. 11 p. 691 et seq.; Treaty of Neuilly, id. Vol. 12, p. 325 et seq.; Treaty of Trianon, id. Vol. 12, p. 423 et seq.

18. Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, P.C.I.J. Series A No. 23, p. 25.

19. Conférence de paix. Réponse des puissances alliées et associées à la délégation autrichienne (1919) p. 47Google Scholar. Nevertheless Art. 291 of the Treaty of Saint-Germain (Art. 219 of the Treaty of Neuilly, Art. 275 of the Treaty of Trianon) provides that “as a result of an agreement between the riparian States the international regime can be extended to any part of the above-mentioned river system (viz. of the Danube) which is not covered by the general definition.”

20. The regime of a navigable waterway must be understood as including the basic rules governing the exercise of navigation. It defines the conditions for the exercise of shipping as an economic activity, and determines who are to be beneficiaries of the right of navigation. “Administration”, on the other hand, primarily refers to a river's policing regulations which, in the interest of public safety, are concerned with the conditions to obtain boatmen's licences, the technical conditions of employment of vessels for shipping trade, and the technical aspects of a ship's movement. In addition, administration involves maintenance and improvement of the navigability of the waterway.

21. Martens, N.R.G. 3rd series, Vol. 18 p. 717 et seq. The Convention contains the clauses of the protocol, whereas the Statute, which forms and integral part of the Convention, includes the basic rules. 7 L.N.T.S. p. 35 et seq.

22. League of Nations, Verbatim Records and Texts relating to the Convention on the Regime of Navigable Waterways of International Concern (hereinafter: Conference on Navigable Waterways) (Geneva, 1921) pp. 418–420.Google Scholar

23. Ibid., p. 10.

24. Ibid., pp. 57 and 60.

25. Ibid., pp. 61.

26. See the Report of the Commission on waterways. Ibid., p. 321.

27. Ibid., pp. 8 and 10.

28. Ibid., pp. 24.

29. Ibid., pp. 56 and 87.

30. Ibid., p. 61.

31. By “essential provisions” is understood the international regime of navigation and administration of rivers established by the Peace Treaties of 1919–1920.

32. Conference on Navigable Waterways, p. 324.Google Scholar

33. Annuaire 1929 Vol. 1, p. 384 et seq.

34. See the intervention of Martua in the discussion of the draft resolution on the navigation of international waterways. Annuaire 1931 Vol. 2, p. 150.

35. Annuaire 1934 pp. 713–719.

36. I.L.A. Report of the 52nd Conference (1966) p. 505.Google Scholar

37. According to Article 23 of the Statute of Barcelona, the international regime is not applicable to a navigable waterway which traverses or delimits zones or enclaves the extent and population of which are small as compared with those of the territories which it traverses, and which form detached portions or establishments belonging to a State other than that to which the said river belongs, with this exception, throughout its navigable course. This exception has been inserted at the request of the representative of the British Indies who suggested that the existence of small French and Portuguese establishments on the borders of several of the British Indies' large rivers, in no way justified extension to these rivers of the scope of the Statute.

38. Op cit. p. 62.

39. Handbuch des, Völkerrechts, Holtzendorff, ed., Vol. 2 (1887) p. 30.Google Scholar

40. Conference on Navigable Waterways, p. 76.Google Scholar

41. Ibid., p. 82.

42. Advisory Opinion on the Jurisdiction of the European Commission of the Danube, P.C.I.J. Series B No. 14, p. 64.

43. See the interesting explanations of Malinckrodt, , Die rechtlichen Grundlagen der Schiffahrtspolizei auf der Preussischen Rheinstrecke (1911) pp. 2–5Google Scholar. See also: Art. 2 (a) of the resolution of the International Law Institute on the navigation of international rivers. Annuaire 1934 pp. 713–719. Id., Final Protocol of the revised Convention on the Navigation of the Rhine, annexed to the “modus vivendi” of 4 May 1936. Martens, N.R.G. 3rd. series, Vol. 36, part. 3, p. 769 et seq. Art. 1 ( ) Rhine Police Regulations, 1954 (Stb. 1954 No. 376). In the terms of Art. 2 of the Navigation Treaty between Argentina and Paraguay, of 23 January 1967: “ … ‘vessels’ shall mean any type of craft, whether or not self-propelled, of whatever tonnage and whatever the source of power”.

44. “The regime of international waterways”. Canadian Yearbook of International Law (1963) p. 179.Google Scholar

45. See Art. 1 of the Elbe Act 1821 (Martens, N.R., Vol. 5, p. 714 et seq.) Art. 1 of the Weser Act 1823 (Martens, N.R., Vol. 6 part 1, p. 301 et seq.) Art. 1 of the Rhine Act 1831 (Martens, N.R., Vol. 9, p. 252 et seq.) and Art 1 of the Revised Rhine Act 1868 (Martens, N.R.G., Vol. 20 p. 355 et seq.).

46. Conference on Navigable Waterways, pp. 418–420.Google Scholar

47. Art. 31 of the Revised Rhine Act, 1868; Art. 11 of the Danube Act, 1921 (Martens, N.R.G. 3rd series, Vol. 12, p. 606 et seq.); Art 43 of the Elbe Act, 1922 (Ibid., p. 632 et seq.).

48. Handbuch des Völkerrechts, Holtzendorff, ed., Vol. 2, 1887, p. 305.Google Scholar

49. Cf. Blociszewski, , “Le régime danubien”, 11 Hague Recueil (1926) pp. 308–309.Google Scholar

50. Conference on Navigable Waterways, p. 324Google Scholar. The Dutch representative pleaded against this limitation of the scope of the Statute. In his opinion, the natural state of waterways could not serve as a criterion for their navigability. “The state of the watercourse as a result of technical operations is of far more concern.” Ibid., p. 8 and p. 54.

50a. Verträge der Bundesrepublik Deutschland, vol. 11, p. 34 et seq.Google Scholar

51. Ruzié, , “Le régime juridique de la Moselle”, 10 A.F.D.I. (1964) p. 764 et seq.Google Scholar

52. Martens, N.R.G. 3rd series, Vol. 4 p. 208 et seq.

53. Cf. Vignes, , “Les travaux du Saint-Laurent”, 3 A.F.D.I. (1957) p. 119 et seq.Google Scholar

54. Conference on Navigable Waterways, p. 324.Google Scholar

55. See Art. 4 Treaty of San Lorenzo el Real, 27 October 1795, between the USA and Spain relating to the navigation of the Mississippi. Martens, Recueil Vol. 6, p. 561 et seq.

56. Art. 5(1) Paris Peace Treaty; Art. 108 Act of Vienna; Articles 1 of Annexes XVI B and C of the Final Act.

57. Conference on Navigable Waterways, p. 324.Google Scholar

58. Cf. Hoederath, R., “Die Schweiz und die Rechtslage auf dem Rhein”, 11 Archiv des Völkerrechts (1963/1964) p. 150, note 61.Google Scholar

59. However, the Rhine is navigable beyond Basle upstream. In the Convention of 10 May 1879 between Switzerland and the Grand-Duchy of Baden (Martens, N.R.G. 2nd series, vol. 9 p. 593 et seq.), the regime of free navigation is made to apply to the section between Neuhausen and the Alsatian frontier. This Convention “serves in a way as an extension of the Mannheim Convention which designated Basle as the upper limit of the international Rhine.” Chiesa, , Le régime internatonal du Rhin (1952) p. 100.Google Scholar

60. Op. cit. p. 101.

61. P.C.I.J. Series A No. 23, pp. 27–28.

62. Conference on Navigable Waterways, p. 418–420.Google Scholar

63. Ibid., p. 72.

64. Ed. Engelhardt, , “Histoire du droit fluvial conventionnel,” Nouvelle revue historique de droit français et étranger (1889), pp. 104–105Google Scholar. Id., De Ranitz, , De Rijnvaartacte (1889), p. 23Google Scholar; Orban, , Etude de droit fluvial international (1895), pp. 113–114.Google Scholar

65. Gothein, , Die Schiffahrt der deutschen Ströme, Vol. 2 (1903), p. 90Google Scholar; Id., Chamberlain, , The regime of the international rivers: Danube and Rhine (1923), p. 193.Google Scholar

66. Ed. Engelhardt, loc. cit., note 64; Orban, op. cit., p. 115.

67. Op den, Hooff, Observations sur l'écrit allemand de la navigation du Rhin considérée dans ses rapports avec le Royaume des Pays-Bas (1828) p. 114Google Scholar. Id., Wurm, , Fünf Briefe über die Freiheit der Flussschiffahrt (1858), p. 31.Google Scholar

68. French support for the Dutch position was carefully calculated. At that time, owing to the widely prevailing freedom of transit in France, the port of Le Havre had extended its appeal to Switzerland and Southern Germany. Gothein, op.cit., pp. 103–104; Id. Chamberlain, op.cit., p. 195.

69. The nature of this fixed duty flowed primarily from Art. 4 of the Act of Mainz, under which the Netherlands was free to add to it an appropriate part of the navigation duties, and further from Art. 7, according to which the duty collected by virtue of Art. 4 replaced “any other customs duty”.

70. The Netherlands abolished the transit duties in question, under the influence of the competition of the railways, by a law of 8 August 1850, Stb. 1850 No. 48. Cf. Gaarlandt, , “De Akte van Mannheim”, Internationale Spectator 1955 p. 438.Google Scholar

71. The Dutch plenipotentiary had explained this pledge as follows: “The Convention of 1831 results from circumstances which justify a very detailed regulation of the Rhine navigation. It is understandable that after years of fighting between the riparian States of the Rhine a regime was established which set the conditions to which the Rhine navigation in general is subject above the particular legislation of each of the riparian States, but today the situation is quite different”. Protocol No. 1 of the Commission. Revision of the Rhine Navigation Act 1831 (Edition of the Central Commission, 1928) p. 103.Google Scholar

72. The Voorne canal, separated from the Haringvliet by a lock does not belong to the category of direct routes, and must therefore be regarded as an internal Dutch waterway. (Judgment of the Supreme Court of the Netherlands, 17 January 1938 (N.J. 1938 No. 63).

73. According to the declaration of the Dutch plenipotentiary: “… the Goverment of the Netherlands will always be found willing to express most formally in the new Convention the right for riparian States to pass without impediment and without paying any tax through Dutch territory from the Rhine unto the open sea; with all consequences necessarily arising from this right. The Government has already given this assurance when its plenipotentiary accepted without any reservation the first phrase of the first article of the draft, and also adhered to the proposal of opening to all vessels belonging to the Rhine navigation all waterways connecting the Rhine with the open sea. But the question whether and to what extent the use of these waterways by ships from the Rhine should, in the future, at all times be guaranteed by comprehensive agreements, is one of those which should be settled exclusively on the basis of the factual situation.” Revision of the Rhine Navigation Act 1831, p. 120.Google Scholar

74. Art. 30 imposes an obligation on riparian States to see that the navigation on the Rhine is not impeded cither by mills or other factories established on the river, or by bridges or other engineering works.

75. Revision of the Rhine Navigation Act 1831, p. 125Google Scholar. The distinction between the international Rhine and the non-international Rhine is particularly manifest in the territorial extent of the competence of the Central Commission for the Navigation of the Rhine, which ends at Krimpen and Gorcum. Consequently, the Rhine police regulations established by the Central Commission are not applicable to the mouths below Gorcum and Krimpen, which also follows from the terms of Article 32 of the Mannheim Convention. The legal force of the regulations in question in the Netherlands is limited to the international Rhine, including the Waal and the Leek. See the Royal Decrees promulgating the regulations of 1897 (Stb. 1897, No. 204), 1904 (Stb. 1905, No. 126) 1912 (Stb. 1913, No. 40), 1938 (Stb. 1939, No. 14), 1954 (Stb. 1954, No. 376), 1970 (Stb. 1972, No. 48), as well as the judgment of the Supreme Court of the Netherlands, 25 February 1972 (N.J. 1972 No. 286). This does not mean that navigation in the mouths has been regulated differently from the rest of the Rhine. The Netherlands has always been careful to ensure uniformity of regulations and has declared, by decisions made in its sovereign competence, the relevant regulations applicable to the Merwede, as well as the Noord and the Nieuwe Maas. Cf. Van, Eysinga, La Commission centrale pour la navigation du Rhin (1935), p. 101.Google Scholar

76. Le droit international public de l'Europe, translated from German by Bergson, (1857) p. 154.Google Scholar

77. 516 U.N.T.S. p. 205 et seq.

78. Cf. Gros, Espiell, “Le régime juridique du Rio de la Plata.” 10 A.F.D.I. (1964) p. 725 et seq.Google Scholar; Barberis, , Regimes juridico internacional del Rio de la Plata (1969), pp. 21–36.Google Scholar

79. 509 U.N.T.S. p. 14 et seq.

80. Martens, N.R.G. Vol. 15, p. 656.

81. 33 U.N.T.S. p. 181 et seq.

82. Protocol No. I of the Commission, Revision of the Rhine Navigation Act 1831.

83. Ed. Engelhardt, , Du régime conventionnel des fleuves internationaux (1879) p. 66.Google Scholar

84. Para. 1 of this article imposes an obligation on riparian States to refrain from any measure capable of affecting navigability, or restricting the facilities for navigation. Para. 2 regulates the responsibility of the riparian for regular maintenance of the waterway and Para. 3 the question of improvement works required for navigation.

85. The restriction of the application of the regime of the 1948 Belgrade Convention only to the Sulina branch of the Danube delta does not seem to be covered by this exception. Apart from the fact that the Kilia branch separates two States, neither this branch nor that of St. George were ever said to be of secondary importance to international navigation.

86. Rheinurkunden – Rijndocumenten (hereafter: Rhine documents), vol. 1 (1918) p. 87.

87. Ibid., p. 148.

88. Martens, N.R., Vol. 16 part 2, p. 773 et seq.

89. Martens, N.R.G., Vol. 3, p. 613 et seq.

90. According to the definition laid down in The Indus Waters Treaty of 19 September 1960 between India and Pakistan (419 U.N.T.S. p. 125 et seq.), the term “main” added after a river's name means the main stem of the named river excluding its tributaries, but including all channels and creeks of the main stem of that river and such connecting lakes as form part of the main stem itself. The dispute between Argentina and Chile involved designation of the main branch of the river Encuentro which, under the old Conventions, was to form the frontier between the two countries. The arbitral award (1966) on the drainage area establishes three essential criteria to characterise the principal branch of a waterway: “In the Court's opinion the three principal criteria to be applied in a problem of this kind are length, size and drainage area, and discharge preferably in terms of annual volume, though authorities differ as regards their relative importance”. U.N. Reports of International Arbitral Awards, vol. 16, pp. 177–180.Google Scholar

91. Rhine documents, Vol. 1 (1918), p. 142Google Scholar. See also the declaration of the Dutch representative. Ibid., p. 145.

92. Cf. Winiarski, op. cit., p. 179.

93. Ed. Engelhardt, , “Histoire du droit fluvial conventionnel”, Nouvelle revue historique de droit français et étranger 1889, p. 105.Google Scholar

94. The international Rhine navigation regime does not, however, apply to the dead branch of this river, called “Kromme Rijn” (Judgment of 25 April 1905 of the Supreme Court of the Netherlands, W 8212 (1905).

95. Martens, N.R.G., Vol. 15, p. 525 et seq.

96. Martens, N.R.G., Vol. 16 p. 63 et seq.

97. Ibid., p. 75 et seq.

98. Ibid., pp. 43–44.

99. Ibid., p. 45.

100. Ibid., pp. 45–46.

101. Sturdza, , Recueil des documents relatifs à la liberté de navigation du Danube (1904) p. 78 et seq.Google Scholar

102. Martens, N.R.G. 2nd series, Vol. 18, p. 185 et seq.

103. “The conditions on navigable affluents are subject to the same treaty provisions as the international waterways into which they flow, and the riparians of the affluents have, therefore, the same right to navigation and commerce as all others. Today, it no longer makes any difference whether an affluent, in its navigable course, remains within the territory of one State or is shared by more than one State, notwithstanding regulations to the contrary established by the Congress of Vienna. Handbuch des Völkerrechts, Holtzendorff, ed., Vol. 2 (1887) pp. 318–319.Google Scholar

104. Conference on Navigable Waterways, pp. 418–420.Google Scholar

105. Ibid., p. 330.

106. Supplement to the American Journal of International Law, Vol. 20 (1926) p. 339.Google Scholar

107. According to the declaration of the Soviet representative Wychinski at the Belgrade Conference, the Soviet draft was inspired by political and economic circumstances. “In this sense” he said, “the draft is based on the same view as the Convention of 1856 which also limited the Danube river system to only the Danube”. Conférence danubienne Beograd 1948 (Publication of the Ministry of Foreign Affairs of Yugoslavia, 1949) p. 121Google Scholar. On this point, however, the Soviet representative was not quite right, since the international regime, based on Articles 15 and 16 of the Paris Peace Treaty of 30 March 1856 (Martens, N.R.G., Vol. 15 p. 770 et seq.) under the additional Articles of 1859 extended to those affluents of the Danube which traversed or bordered on more than one State. On the other hand, owing to the fundamental change in the political map of the Danube basin since 1856, it is now more important than it used to be that the pluriterritorial affluents of the Danube be subjected to a regime based on the principle of free navigation. Austria-Hungary's disintegration after World War I, in particular, has considerably increased the number of affluents of the Danube the navigable courses of which are shared by two or more States.

108. 587 U.N.T.S. p. 9 et seq.

109. André, J.C., “L'évolution du statut des fleuves internationaux d'Afrique noire”, 19 Revue juridique et politique, indépendance et coopération (1965) pp. 285–310.Google Scholar

110. Martens, N.R. Vol. 2, p. 225 et seq. and p. 236 et seq.

111. “By affluents of the Danube the current Convention understands both natural and artificial waterways which either directly or indirectly run into this river or into one of its affluents”.

112. Martens, N.R.G. Vol. 12, part 2, p. 216 et seq.

113. Martens, N.R.G. 2nd series, Vol. 10, p. 277.

114. Art. 331 of the Treaty of Versailles, Art. 291 of the Treaty of Saint-Germain, Art. 219 of the Treaty of Neuilly, Art. 275 of the Treaty of Trianon.

115. Conference on Navigable Waterways, p. 420.Google Scholar

116. Ibid., loc. cit.

117. Only the Dutch delegate opposed this view at the Conference. In Lely's opinion, the decision made by the Conference was not in accordance with Art. 23 (e) of the Covenant of the League of Nations which did not draw a distinction between rivers and canals for the purpose of securing and maintaining freedom of communications Ibid., p. 54.

118. Under Art. 1 (2) (b), the international regime also applies to “artificial waterways or other works that will be established on or between certain sections of the same international river in order to remedy the defects of the naturally navigable waterway”.

119. 587 U.N.T.S. p. 19 et seq.

120. See the judgment of the Supreme Court of the Netherlands of 9 March 1936, N.J. 1936 No. 236.

121. When the Act of Mainz was signed, the Dutch delegate, establishing that the omission of Antwerp from the list of free ports of the Rhine was in no way contrary to the provisions of the Act of Vienna, declared the Netherlands willing to enter into negotiations with the other riparians on the arrangement of communications between Antwerp and the Rhine. Cf. Wery, , De Rijn- en Scheldeverbindende wateren (1919) p. 3.Google Scholar

122. The distinction in the Act of Mainz between navigation on direct routes mentioned in Art. 3 and navigation on the intermediary waters referred to in Art. 5 was primarily based on the difference in treatment: transports using the direct routes were exempt from paying fixed duties under Art. 4 of the Act, whereas vessels leaving the direct routes were subject to general customs formalities, payment of bridge and lock tolls, etc. on the same footing as nationals.

123. Cf. Wery, op. cit. pp. 4–8.

124. This definition has been reproduced in Art. 2 of the Navigation Regulations of the intermediary waters between the Scheldt and the Rhine of 20 May 1843. Martens, N.R.G. Vol. 5 p. 339 et seq. See also the judgment of 1 February 1937 of the Supreme Court of the Netherlands, N.J. 1937 No. 716.

125. Martens, N.R.G. Vol. 1, p. 151 et seq.

126. The wording of the text makes clear that the intermediary waters are not covered by the Act of Vienna. In subsequent relations between France and the Netherlands the Treaty of Commerce and Navigation of 7 July 1865 was substituted for that of 1840. Lagemans, , Recueil des traités et conventions conclus par le Royaume des Pays-Bas, Vol. 5, p. 385 et seq.Google Scholar

127. The distinction which the Act of Mainz made between direct routes Rhine – open sea, and intermediary waters routes largely lost its foundation as a consequence of Art. 3 of the Act of Mannheim, under which no dues based only on the fact of navigation could be levied on vessels navigating on the Rhine or the intermediary waters, or their cargoes.

128. See the judgment of 3 February 1936 of the Supreme Court of the Netherlands, N.J. 1936 No. 237.

129. Martens, N.R.G. 3rd series, Vol. 12, pp. 603–605.

130. Martens, N.R.G. 3rd series, Vol. 37, part 2, p. 398 et seq.

131. 540 U.N.T.S. p. 3 et seq.. See also Wildeman, , “Verleden en heden rond de Schelde-Rijnverbinding”, N.J.B. 1965, p. 621 et seq.Google Scholar; Baron de, Gruben, “Les aspects juridiques du traité conclu entre la Belgiue et les Pays-Bas au sujet de la liaison entre L'Escaut et le Rhin”, Chronique de politique étrangère 1965 p. 259 et seq.Google Scholar

132. Nguyen Quoc, Dinh, “L'internationalisation du Mékong”, 8 A.F.D.I. (1962) pp. 91–115, at p. 108Google Scholar. Quite probably the treaty is still inoperative as a result of the wars which have been raging in this part of the world.

133. Quite different is the situation where a port accessible to ocean-steamers is situated in the mouth of a national river which runs directly into the sea. As a general rule, the maritime navigation regime applies to ships calling at sea-ports on their way from or to the high seas, irrespective of whether they are within so-called national or international rivers.

134. This follows from Art. 1 (1)(b) of the Statute of Barcelona which emphasises a river's navigability “by reason of its natural conditions”.

135. Such was the case on the Danube before the execution of the works undertaken to remove the obstacles to navigation constituted by the Iron Gates and the cataracts.

136. See Art. 10(6) of the Statute of Barcelona.

137. Cf. De iure belli ac pacis, lib. II, cap. II, para. XIII.

138. See the present author's article: “La navigation fluviale dans la doctrine de droit naturel”, 75 R.G.D.I.P. (1971) pp. 1060–1076.Google Scholar

138a. Loc. cit. in n. 5.

139. Du régime conventionnel des fleuves internationaux, p.89.Google Scholar

140. Ibid., p. 82.

140a. Le droit international codifié. Translated from German, by Lardy, , 4th ed. (1886), note to Art. 314.Google Scholar

141. Annuaire 1887–1888 p. 167.

142. Martens, N.R.G. 2nd series, Vol. 10, p. 364.

143. Conference on Navigable Waterways, p. 421.Google Scholar

144. Ibid., p. 9.

145. Ibid., pp. 98 and 102.

146. Ibid., p. 232.

147. Martens, N.R.G. 3rd series, Vol. 18, pp. 734–737.

148. Etude de la Convention de Barcelone sur le régime des voies navigables d'intérêt international (1927) p. 102.Google Scholar

149. Albania, Austria, Czechoslovakia, Denmark, Finland, Great-Britain, Norway, Romania, Sweden and Thailand.

150. Op. cit, p. 155.

151. “Quel doit être le régime juridique des fleuves africains?”, 5 R.G.D.I.P. (1898) pp. 842–843.Google Scholar

152. Annuaire 1932 p. 71.

153. Annuaire 1929 vol. 1, p. 397.

154. Annuaire 1932 p. 106.

155. Ibid., p. 136.

156. As appears from Art. 11 (2), France made a reservation with regard to the application to its internal waterways. In the Final Protocol, however, some concessions were made in respect of the navigation on the Ill, and transit of goods by the Hunningue canal.

157. Protocol No. 1 of the Commission. Revision of the Rhine Navigation Act 1831, p. 105.Google Scholar

158. Under Art. 10 of the Treaty of Commerce and Navigation of 1851 between the Netherlands and the German Customs Association (Zollverein), the flags of the Contracting Parties were generally assimilated to the national flag as regards “the navigation of all navigable waterways belonging to the High Contracting Parties, either natural or artificial, rivers, canals, channels or any other kind whatsoever.” This treaty was in force until World War II. Cf. Van, Eysinga, “Les fleuves et canaux internationaux”, Bibliotheca Visseriana, Vol. 2 (1924) p. 135Google Scholar; Telders, , “De huidige stand van het internationale Rijnrégime (1937), Verzamelde geschriften, Vol. 4 p. 30Google Scholar. In Art. 27 of the Treaty of Commerce and Navigation of 1865 between France and the Netherlands, most favoured-nation treatment was provided for with regard to navigation on national waterways. On 2 August 1862, France had concluded a Treaty of Commerce and Navigation with the German Customs Association (Zollverein) (Martens, N.R.G., Vol. 19, p. 286 et seq.) which stipulated in Art. 9: “Boatmen of the States of the Zollverein navigating on the internal waters of France and, reciprocally, French boatmen navigating on the internal waters of the Zollverein shall on either part be assimilated to nationals in respect of the boatmen's licence”. By virtue of the most-favoured-nation clause this provision was also applicable between France and the Netherlands.

159. 298 U.N.T.S. p. 3 et seq.

160. Handbuch des Völkerrechts, Holtzendorff, ed., Vol. 2 (1887) p. 303.Google Scholar

161. Conference on Navigable Waterways, p. 81.Google Scholar

162. The Law of International Waterways (1964) p. 112.Google Scholar

163. Op. cit. p. 145.

164. Op. cit. p. 477.

165. Cf. Hyde, , International Law chiefly as interpreted and applied by the United States, Vol. 1 (2nd ed., 1951), p. 527.Google Scholar

166. Op. cit., p. 560.

167. Conference on Navigable Waterways, p. 76.Google Scholar

168. Op. cit., p. 145–147.