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The regime of navigation on international waterways: Part III: Substantive rights and duties

Published online by Cambridge University Press:  07 July 2009

B.K.J. Vitányi
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Extract

The term “navigation” in the purely technical sense means no more than the movement of vessels; in this sense the term is used in regulations bearing on the technical conditions for the movement of ships. “Navigation”, the freedom of which is established in international treaties, has a quite different meaning. Freedom of communications (including freedom of navigation on rivers) and freedom of commerce had already been conceived as correlative and complementary notions in natural law. Both the earliest and most recent treaties on inland navigation give conclusive evidence that dissociation of these two notions was never contemplated. It is true that freedom of navigation and freedom of commerce are, in principle, concerned with different matters. Navigation understood as the mere movement of vessels, may be exercised for scientific, philanthropic or recreational purposes. However, such movement of vessels for non-commercial purposes was never of such importance as to justify international regulation. Every international agreement in this field has envisaged granting freedom of navigation as an economic activity. Never, in international treaties, has navigation been treated exclusively as movement of vessels in the technical sense, viz. as an activity with an end in itself. On the contrary, for the purpose of international regulation, navigation has constantly been regarded as an economic activity, viz. as the operation of transport services for passengers and, in particular, goods. In other words, the international regulations have always regarded navigation as the exercise of the shipping trade.

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Articles
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Netherlands Yearbook of International Law , Volume 7 , December 1976 , pp. 3 - 90
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Copyright © T.M.C. Asser Press 1976

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References

1. 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

2. In respect of international river law, which, in addition to regulations relating to the navigation regime, includes rules on the use of international waterways for industrial and agricultural purposes, Professor Colliard states: “River law, perhaps more than other branches of international law, is in fact called upon to provide the legal framework for economic activities.” Evolution et aspects actuels du régime juridique des fleuves internationaux. 124, Hague Recueil (1968-III) p. 356.Google Scholar

3. Dissenting opinion in the Oscar Chinn case, P.C.I.J. Series A/B No. 63 p. 140.

4. European Commission of the Danube, P.C.I.J. Series B No. 14 pp. 65–66.

5. See Art. 17 of the Statute of Barcelona on the Regime of Navigable Waterways of International Concern, of 20 April 1921, Martens, N.R.G. 3rd series, vol. 18 p. 717 et seq. 7 L.N.T.S. 35 et seq. As an exception to the general rule, Art. 30 of the Belgrade Convention regarding the Regime of Navigation on the Danube of 18 August 1948 (33 U.N.T.S. p. 197 et seq.) prohibits navigation on the Danube only to vessels of war of non-Danubian countries. Vessels of war of Danubian countries may navigate outside the frontiers of the country of the flag they are flying, after previous consultation between the Danubian States involved.

6. Martens, N.R.G. 3rd series, vol. 18 p. 701 et seq.

7. 597 U.N.T.S. p. 3 et seq.

8. League of Nations Barcelona Conference. Verbatim Records and Texts relating to the Convention on the Regime of Navigable Waterways of International Concern and to the Declaration recognising the Right to a Flag of States having no Sea-Coast (Geneva, 1921) (hereafter: Conference on Navigable Waterways) p. 129.Google Scholar

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11. Rheinurkunden-Rijndocumenten (hereafter: Rhine documents), vol. 1 (1918) pp. 61–63Google Scholar. Eichhoff, former Director-General of the Central Office of Navigation Dues on the Rhine, who attended the session of the Committee as an expert, expresses the same view. Pragmatisch-Geschiehtliche Darstellung der Verhandlungen und Beschlüsse der Congress-Comitté für die Freiheit der Flüsse (1819) pp. 13–14.Google Scholar

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13. European Commission of the Danube, P.C.I.J. Series B No. 14 p. 49.

14. “De huidige stand van het internationale Rijnrégime” (1937), Verzamelde geschriften, vol. 4 (1947) p. 21.Google Scholar

15. Address to the Chamber of Commerce at Rotterdam, 16 October 1948, p. 9.

16. Völkerrecht, vol. 2 (1964) pp. 1119–1120.Google Scholar

17. Le régime international du Rhin (1952) p. 7.Google Scholar

18. I.L.A. Report of the 52nd Conference (1966) p. 484Google Scholar. It will be noted that the International Law Association has not conceived freedom of navigation in its European formulation in favour of all flags, but only in the mutual relations between riparians of the same pluriterritorial river.

19. European Commission of the Danube, P.C.I.J. Series B No. 14 pp. 64–65.

20. Rhine documents, vol. 1 p. 57.

21. Ibid. p. 70.

22. Martens, Supp., vol. 4 p. 36 et seq. English text in 2 B.F.S.P. p. 164 et seq.

23. Rhine documents, vol. I p. 86.

24. Op.cit. p. 103.

25. Martens N.R.vol. 5 p. 714 et seq. English text in 8 B.F.S.P. p. 953 et seq.

26. Martens N.R. vol. 6 part 1 p. 301 et seq. English text in Hertslet, , The Map of Europe by Treaty, vol. 1 p. 707 et seqGoogle Scholar. (not complete text).

27. Martens N.R. vol. 9 p. 252 et seq.

28. The Octroi Convention of 1804 still distinguished different categories of navigation on the basis of their territorial extent. The navigation exercised throughout the whole extent of the Rhine's navigable course, passing through the “ports of call” Mainz and Cologne, was the privilege of the boatmen's companies established in these towns. Boatmen belonging to an intermediate port between Mainz and Cologne could freely carry on their trade on the sector of the Rhine between the two towns. The same freedom was granted to boatmen belonging to a port situated above Mainz and to those belonging to a port below Cologne on the respective Rhine sections. The “lesser navigation” which maintained the mutual relations of ports and countries of both banks without passing the “ports of call” was declared to be free for all boatmen. The territorial scope of the Convention originally ended at the Dutch frontier, but was extended to the Dutch section of the Rhine after the total annexation of the Netherlands by France, by virtue of the Imperial Decree of 21 October 1811, as from 1 January 1812.

29. Du regime conventionnel des fleuves internationaux (1879) pp. 79–80.Google Scholar

30. See Art. 16 of the Boundary Treaty between Belgium and the Netherlands, of 5 November 1842 (Martens N.R.G., vol. 3 p. 643 et seq. English text in Hertslet, , The Map of Europe by Treaty, vol. 2, p. 1029 et seqGoogle Scholar. (not complete text) reading: “Vessels proceeding from the open sea to Belgium and vice versa shall not be subject to any Dutch customs formalities on the course of the Western Scheldt and its mouths or while they are staying there.” Another example was provided by the Convention on the navigation of the Pruth, a tributary of the Lower Danube, concluded 3/15 December 1866 between Austria, Russia and the United Principalities of Moldavia and Walachia (Martens, N.R.G., vol. 20 p. 296 et seq). Under Art. 4 of this Convention, the customs lines on the Pruth are always to follow the banks, and vessels shall not be subject to any customs control unless they moor on either of the banks.

31. As regards the term “customs formalities”, the delegates of the German States established, during the preparation of the Act of Mannheim on the navigation of the Rhine, that the term is to be understood as “the whole of customs handling of merchandise from its declaration to the moment of entry in consumption or leaving the customs frontier.” Revision de l'Acte de navigation du Rhin de 1831 (Publication of the Central Commission, for the Navigation of the Rhine, 1928) p. 107. The term is still used in current speech although, at the Barcelona Conference, the Brazilian delegate observed that it involved no formal, but real operations. Hostie then replied that the word “formalities” is consecrated by usage in navigation acts. To abandon the word might give rise to doubt. Conference on Navigable Waterways, p. 115.

32. Martens, N.R., vol. 11 p. 525 et seq.

33. Martens, N.R.G., vol. 2 p. 413 et seq.

34. Para. 2 makes an exception to this rule in cases of force majeure.

35. Rhine documents, vol. 1 pp. 474–477.

36. Martens, N.R.G., vol 16 part 2 p. 75 et seq.

37. Austria reluctantly agreed to the application of the regime of free navigation on the Austrian part of the Danube. Cf. Wurm, , Fünf Briefe über die Freiheit der Flussschiffahrt (1858) p. 6Google Scholar. Its resistance resulted from the monopoly granted to the “K.k.priv. Erste Donau Dampfschiffahrt Gesellschaft” for the transport of persons and goods on the Austrian section of the Danube, which would not have expired until 1880. In 1857, the privilege was replaced by a contract in which the Austrian Government granted to the Company an annual net profit of 8 per cent of its capital stock. See: Hajnal, , Le droit du Danube international (1929) p. 43.Google Scholar

38. Since the Lower Danube, below Belgrade and the Iron Gates, was under the sovereignty of Turkey at that time, the sanitary police played an important role there.

39. Martens, N.R.G., vol. 20 p. 355 et seq., Hertslet, , The Map of Europe by Treaty, vol. 2 pp. 848 et seq.Google Scholar

40. According to the interpretation of the Supreme Court of the Netherlands –set out in two judgments of 17 December 1934– “navigation” in Art. 1 of the Act of Mannheim must not only be understood as the movement of vessels so that “the free navigation granted would be limited to the right of free carriage of goods and persons; but this notion also implies the right to load or accept for loading subject to restrictions following from the Convention itself.” In the Court's opinion the right of navigation would have little significance if it were not also allowed to load goods, or accept them for loading, with a view to transport. This conclusion also results from other provisions of the Act of Mannheim, e.g. Articles 5, 7 and 11 in which there is question of loading and transhipment of merchandise, while Art. 27 imposes an obligation on riparians to take such measures in the ports situated on the Rhine as are necessary to facilitate these operations, N.J. 1935 p. 5 et seq.

41. When the text was being drafted, different delegates insisted on an exception for sanitary measures, for “in the event of cattle disease, transit of supect cattle should not be allowed …” Revision de l'Acte de navigation du Rhin de 1831 p. 106.Google Scholar

42. Under Art. 31, para. 1 of the Convention of 27 October 1956 between Germany, France and Luxembourg relating to works to enhance the navigability of the Moselle, these provisions are applicable to the navigation of this river. Verträge der Bundesrepublik Deutschland, vol. 11 (1959) p. 34 et seq.Google Scholar

43. Martens, N.R.G. 2nd series, vol. 10 p. 414 et seq.

44. 9 Annuaire 1887/88 p. 166 et seq.

45. Treaty of Versailles, Martens, N.R.G., 3rd series, vol. 11 p. 323 et seq; 112 B.F.S.P. p. 1 et seq; 13 A.J.I.L. (1919) Supp. p. 151 et seq; Treaty of St. Germain, Martens, ibid., p. 691 et seq; 112 B.F.S.P. p. 514 et seq.; Treaty of Neuilly, Martens; N.R.G. 3rd series, vol. 12 p. 325 et seq.; Treaty of Trianon, Martens, ibid., p. 423 et seq.; 113 B.F.S.P. p. 486 et seq.

46. The limitation of the operation of the provisions of the two Statutes of Barcelona to Contracting States is a retrograde step as compared with certain 19th century Navigation Acts and with the Peace Treaties of 1919/1920, which granted freedom and facilities of navigation to all members of the international community.

47. Conference on Navigable Waterways pp. 331–332.Google Scholar

48. Ibid. pp. 121–124, 169 and 332.

49. Ibid. p. 117.

50. The addition “nevertheless … vessels in transit may be made responsible for the board and lodging of any customs officers who are strictly required for supervision” was inserted on the proposal of the Yugoslav delegation. Ibid. pp. 124 and 168.

51. Ibid. p. 424.

52. Ibid. p. 128.

53. Ibid. p. 131.

54. Ibid. p. 131.

55. Ibid. p. 135.

56. Martens, N.K.G. 3rd series, vol. 12 p. 606 et seq. 26 L.N.T.S. p. 173 et seq.

57. Ibid. p. 632 et seq, 26 L.N.T.S. p. 219 et seq.

58. Nevertheless, according to the Final Protocol, the State where transit takes place has no right to prohibit the transit of these goods.

59. Martens, N.R.G. 3rd series, vol. 36 part 3 p. 769 et seq.

60. For events determining the fate of the Modus Vivendi, see the present author's article “The Regime of Navigation on International Waterways, Part. I: The beneficiaries of the right of navigation”, 5 N.Y.I.L. (1974) at p. 152.Google Scholar

61. 38 Annuaire 1934, pp. 713–719.

62. The use of Danube port installations is subject to contracts concluded to that effect between the river transport companies concerned. It implies, in fact, the condition of reciprocity which non-riparians are unable to fulfil. Cf. Zemanek, K., “Die Schiffahrtsfreiheit auf der Donau und das künftige Regime der Rhein-Main-Donau Groszschiffahrtsstrasze”, Oesterreichische Zeitschrift für öffentliches Recht. Supplementum 4, (1976) p. 2.Google Scholar

63. European Commission of the Danube, P.C.I.J. Series B No. 14 p. 64.

64. Oscar Chinn case, P.C.I.J. Series A/B No. 63 p. 83.

65. Ibid. p. 83.

66. European Commission of the Danube, P.C.I.J. Series B No. 14 p. 65.

67. Ibid. p. 66.

68. Oscar Chinn case, P.C.I.J. Series A/B No. 63 p. 83.

69. Op.cit. p. 28.

70. “Examen de quelques règies du droit international dans le domaine des communications et du transit” 40 Hague Recueil (1932-II) p. 427.Google Scholar

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72. European Commission of the Danube, P.C.I.J. Series B No. 14 p. 64.

73. See supra n. 28.

74. Cf. Gothein, , Die Schiffahrt der deutschen Ströme, vol. 2 (1903) pp. 85–86.Google Scholar

75. Rhine documents, vol. 1 pp. 474–476.

76. Revision de l'Acte de navigation du Rhin de 1831 p. 92.Google Scholar

77. “Nevertheless, German (Austrian, Bulgarian, Hungarian) vessels shall not be entitled to carry passengers or goods by regular services between the ports of any Allied or Associated Power, without special authority from such Power.”

78. See Vitanyi, op.cit. at n. 60 pp. 114 and 126.

79. Ibid. pp. 119 and 126–129.

80. Ibid. pp. 145–146 and 166.

81. Das Recht der internationalen Gewässer (1920) p. 101.Google Scholar

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85. See Vitanyi, op.cit. at n. 60, pp. 131 and 140–141.

86. Individual opinion in the Oscar Chinn case, P.C.I.J. Series A/B No. 63 p. 145.

87. Traité de droit international public, vol. 1 (1953) p. 415.Google Scholar

88. Martens, N.R.G. 3rd series, vol. 14 p. 12 et seq.

89. Oscar Chinn case, P.C.I.J. Series A/B No. 63 p. 82.

90. Ibid. p. 83.

91. Ibid. p. 84.

92. Ibid. p. 86.

93. These operations are described in Articles 11, 12, 19, 23, and 24 of the Draft Revised Convention on the Navigation of the Rhine, annexed to the Modus Vivendi of 1936.

94. P.C.I.J. Series A/B No. 63 p. 84.

95. Ibid. p. 85.

96. Ibid. p. 85.

97. Ibid. p. 88.

98. Ibid. p. 110.

99. Sir Cecil Hurst, President of the Court, and the judges Altamira, Anzilotti, Schücking and Van Eysinga appended to the judgment their separate opinions, Ibid. pp. 91–150.

100. Ibid. p. 125.

101. Ibid. p. 127.

102. Ibid. p. 95.

103. Ibid. p. 100.

104. Ibid. p. 112.

105. Ibid. p. 140.

106. Ibid. p. 141–142.

107. Ibid. p. 148.

108. Note on the Oscar Chinn case. Recueil général périodique et critique des décisions, conventions et lois relatives au droit international public et privé (1935) p. 15 et seq.Google Scholar

109. De vrijheid der scheepvaart op internationale rivieren (1935), op.cit. vol. 4 p. 37.

110. Op.cit. p. 155.

111. For the unfavourable competition position of the Austrian navigation company DDSG, as compared with the national navigation companies of the Oanubian countries with a collectivist economic system, in respect of the transport commissions on the Danube, see K. Zemanek, op.cit. pp. 17–20.

112. Rhine documents, vol. 1 pp. 98–99.

113. Ibid. p. 136.

114. Cf Telders, B.M., Evenredige vrachtverdeling op het Weensch Congres (1937) op.cit. vol. 4 p. 38 et seq.Google Scholar

115. The final abolition of the rights of forced call and transhipment of Mainz and Cologne had caused violent competition between these towns to obtain the greater part of Rhine traffic by establishing regular services for the transport of goods. For that purpose, Mainz concluded contracts with Dutch ports, Cologne with Frankfurt and Mannheim. Cf. Gothein, op. cit., pp. 202–203.

116. Martens, N.R.G., vol. 6 p. 386 et seq.

117. Proeve eener geschiedenis van de scheepvaartwetgeving op den Rijn(1854) p. 86.Google Scholar

118. Revision de l'Act de navigation du Rhin de 1831 p. 91.Google Scholar

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120. “Die Rechtsstellung der Schweiz in Bezug auf die revidierte Rheinschifffahrts-Akte vom 17 Oktober 1868”, 14 Annuaire Suisse de Droit International (1958) p. 153.Google Scholar

121. La Commission centrale pour la navigation du Rhin (1935) p. 134.Google Scholar

122. Reichsgesetzblatt 1933 Part I p. 317 et seq.

123. Journal officiel of 3 November 1945.

124. Cf. Gérand, , “L'affrètement fluvial”, in Etudes de droit fluvial (Rodière, ed., 1957) p. 121 et seq.Google Scholar

125. Stb. 1933 No. 251.

126. This view of the Supreme Court has made the act inoperable in practice.

127. Verordeningsblad 1940 p. 624 et seq.

128. Stc. 1948 No. 93.

129. Stc. 1950 No. 66.

130. In addition to the Dutch provisions, the Resolution referred to Circular No. 22 of 15 October 1949 of the Government of the German Federal Republic (Bundesanzeiger, 1949 No. 11) according to which foreign tonnage could only be used for the transport of goods between two river ports situated within German territory with special authority of the Federal Ministry of Communications.

131. La navigation du Rhin (periodical publication of the Central Commission) 1950 p. 532.

132. N.J. 1952 No. 125.

133. Note on the Judgment of the Supreme Court. Ibid.

134. Bundesgesetzblatt, 1953 Part 1 p. 1453 et seq.

135. Jaarboek van het Ministerie van Buitenlandse Zaken, 1953/1954 p. 260 et seq.Google Scholar

136. Ibid. p. 265.

137. See Articles 332–337 and 340–362 of the Treaty of Versailles, 292–298 and 301–308 of the Treaty of Saint-Germain, 220–226 and 229–235 of the Treaty of Neuilly, 276–282 and 285–291 of the Treaty of Trianon, as well as Articles 5 first paragraph, 13 and 20 of the Barcelona Statute on the Regime of Navigable Waterways of International Concern.

138. 298 U.N.T.S. p. 3 et seq.

139. Doc. VII/COM/62/88 of 23 May 1962.

140. Cf. Ed. Engelhardt, , “Histoire du droit fluvial conventionnel”, Nouvelle revue historique de droit français et étranger 1889 pp. 82–83Google Scholar; Orban, , Etude de droit fluvial international (1895) pp. 78–79Google Scholar; Chamberlain, , The regime of the international rivers: Danube and Rhine (1923), p. 160 et seq.Google Scholar

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142. Rhine documents, vol. 1 p. 125.

143. See: B. Vitányi, op. cit., at n. 58, pp. 130–131 and 139.

144. Martens, N.R., vol. 16 part 2 pp. 773 et seq., Hertslet, , The Map of Europe by Treaty, vol. 2, p. 979 et seq.Google Scholar

145. Martens, N.R., vol. 14 pp. 250 et seq.

146. Under the most-favoured-nation clause stipulated in Article 10 para. 1 of the Treaty of Commerce and Navigation between the Netherlands and France of 25 July 1840 (Martens, N.R.G., vol. 1 p. 216 et seq.) French vessels navigating on the Dutch Rhine enjoyed the same facilities.

147. de Ranitz, H., De Rijnvaartakte (1889) p. 29.Google Scholar

148. Stb. 1850 No. 48.

149. Martens, N.R.G., vol. 2 part 2 p. 216 et seq.

150. Revision de l'Acte de navigation du Rhin de 1831 p. 92.Google Scholar

151. In the opinion of Lederle, the retained navigation duties were, by this stipulation, given the character of taxes payable for services rendered. Op.cit. p. 119.

152. See Böhme, H., Die völkerrechtliche Stellung der Elbe under besonderer Berücksichtigung der Situation nach dem zweiten Weltkrieg (1959) p. 8.Google Scholar

153. Martens, N.R.G., vol. 17 part 1 p. 419 et seq.

154. Martens, N.R.G., vol. 20 p. 345 et seq.

155. Martens, N.R.G., vol. 17 part 2 p. 230 et seq.

156. Martens, N.R.G., vol. 15 p. 770 et seq. English text in Major Peace Treaties of Modern History 1648–1967 (Israel, F.Z. ed.) vol. 3 (1967) p. 947 et seq.Google Scholar

157. Martens, N.R.G., vol. 17 p. 144 et seq.

158. Ibid. p. 303 et seq.

159. Martens, N.R.G. 2nd series, Vol. 3 p. 464 et seq. Later, Romanian authors blamed the Hungarian Government for unjustified tax collection on vessels passing the Iron Gates, since the works of regularisation had not been completed. See Sturdza, , Recueil des documents relatifs à la liberté de navigation du Danube (1904) p. 556Google Scholar; Radu, , Die Donauschiffahrt in ihrer völkerrechtliche Entwicklung (1909) p. 83Google Scholar; Bacoianu, , Le Danube (1917) p. 143Google Scholar. Contrary to these opinions, the late Professor Strisower of Vienna University recalled that the question here is whether the results obtained by the State which undertakes the removal of obstacles to navigation, correspond, at least provisionally, to the purposes of the executed works. With the regularisation of the Cataracts of the Danube and the Iron Gates, the obstacles previously barring navigation were essentially removed. See the article “Donau” in the Oesterreichisches Staatswörterbuch (1907). The British Government declared in 1899: “… it is not found that the tariff of dues violates any treaty rights.” Hajnal, op.cit. p. 199.

160. Op.cit. at n. 29.

161. See Chapter “Das Stromgebietsrecht und die internationalen Flussschiffahrt”, in Handbuch des Völkerrechts (Holtzendorff, , ed.), vol. 2 (1887) p. 330.Google Scholar

162. Conference on Navigable Waterways p. 422.

163. 20 A.J.I.L. (1926) Suppl. p. 339.

164. 9 A.F.D.I. (1963) p. 866 et seq.

165. 10 A.F.D.I. (1964) p. 815 et seq.

166. André, I.C., “L'évolution du Statut des fleuves intenationaux d'Afrique noire”, 19 Revue juridique et politique, indépendance et coopération (1965) pp. 285–310.Google Scholar

167. International Commission of the Oder, P.C.I.J. Series A No. 23 p. 27.

168. See: B. Vitányi, op.cit. at n. 50, pp. 123–126.

169. Ibid. pp. 132–140.

170. Revision de l'Acte de navigation du Rhine de 1831 p. 92.Google Scholar

171. See: B. Vitányi, op.cit. at n. 60 pp. 143–144.

172. However, at the Berlin Conference the French representative observed, in respect of Article 3, that the absence of any differential treatment was “only the normal regime of free navigation in favour of merchant vessels.” Martens, N.R.G. 2nd series, vol. 10 p. 264.

173. The U.S.-Mexican Mixed Claims Commission established in its Decision on the Hopkins case in 1926: “There is no ground to object that this amounts to a discrimination by a nation against its own citizens in favor of aliens. It is not a question of discrimination but a question of difference in their respective rights and remedies. The citizens of a nation may enjoy many rights which are withheld from aliens, and, conversely, under international law aliens may enjoy rights and remedies which the nation does not accord to its own citizens.” U.N. Reports of International Arbitral Awards, vol. 4 p. 47.Google Scholar

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175. League of Nations, Barcelona Conference, Verbatim Reports and Texts relating to the Convention on Freedom of Transit (1921) p. 284.Google Scholar

176. Conference on Navigable Waterways p. 107.

177. Ibid. p. 107.

178. Ibid. p. 106.

179. Ibid. p. 128.

180. Ibid. p. 129.

181. This exception was inserted in the Statute on the proposal of the delegate of Uruguay who considered that countries must always have the right to impose on any company or ship-owner measures directed against a campaign which would be detrimental to his own interest. Ibid. pp. 136–137. The Belgian representative vainly recalled that no distinction could possibly be drawn between a flag and the various shipping companies under that flag. If discrimination is made as regards a shipping company, it may be done also as regards all the shipping companies belonging to one flag. Ibid. p. 137.

182. Ibid. p. 107.

183. 37 Annuaire 1932 p. 68.

184. See B. Vitányi, op.cit. at n. 60, pp. 141–145.

185. “Absence de toute discrimination ou traitement différentiel au détriment de celui qui en bénéficie et de tout traitement préférentiel au profit d'autrui dans les matières auxquelles cette notion est applicable”, Dictionnaire de la terminologie du droit international (edited by Basdevant, , 1960) p. 248.Google Scholar

186. “Diskriminierung”, in: Wörterbuch des Völkerrechts (edited by Schlochauer, ), vol. 1 (1959) p. 390.Google Scholar

187. Le système préférentiel et les Etats tiers (1959) p. 271.Google Scholar

188. Treatment of Polish nationals in the territory of Danzig P.C.I.J. Series A/B No. 44 p. 28.

189. Minority Schools in Albania, P.C.I.J. Series A/B No 64 p. 19.

190. The same idea was expressed with remarkable conciseness by Vierdag: “…the non-discrimination principle is regarded as a safeguard not only against unequal treatment of equals, but also against equal treatment of unequals.” Vierdag, E.W., The Concept of Discrimination in International Law (1973) p. 166.Google Scholar

191. P.C.I.J. Series A/B No. 63 p. 87.

192. Ibid. pp. 128–129.

193. Ibid. pp. 92–93.

194. De, Leener, “Règles générales du droit des communications internationales”, 55 Hague Recueil (1936-I) at p. 28.Google Scholar

195. Conference on Navigable Waterways p. 128.

196. Ibid. p. 130.

197. Ibid. p. 131.

198. “Ait Praetor: In flumine publico inve ripa eius facere, aut in id flumen ripamve eius immittere, quo aliter aqua fluat, quam priore aestate fluxit, veto.” Dig., lib. 43, tit. 13, para. 1.

199. “Et generaliter dicendum est, ita demum interdicto quem teneri, si mutetur cursus aquae per hoc quod factum est, dum vel depressior, vel altior fiat aqua, ac per hoc rapidior fit.” Dig., lib. 43, tit. 13, para. 3.

200. “Deinde ait Praetor: Quod in flumine publico ripave eius factum, sive quid in flumen ripamve eius immissum habes, si ob id alter fluit atque uti priore aestate fluxit, restitnas.” lib. 43, tit. 13, para. 9.

201. Ed. Engelhardt, op.cit. at n. 140, p. 82.

202. Op.cit. at n. 29, p. 118.

203. According to Van Eysinga, the common accord between riparian States, required by Art. 18 for the rectification of the course of the Rhine, remained a dead letter. The rectifications in question were not executed until 1870–1880. Op. cit. at n. 121 pp. 75–76.

204. See, Rolin-Jacquemyns, , “L'entretien de l'Escaut suivant les traités”, Revue de droit international et de législation comparée (1928)pp, 377–399.Google Scholar

205. See, Van, Eysinga, “L'entretien de l'escaut suivant les traités”, Revue de droit international et de législation comparée (1928) pp. 732–752.Google Scholar

206. This provision does not warrant general conclusions. To prove its exceptional character, Van Eysinga refers to the Netherlands note, of 6 February 1851, to the Prussian Government relating to the Treaty, which included the following statement on the question of the improvement works: “The Netherlands Government, giving proof of its wish to meet the views of the German States (viz. members of the Customs Union) and going further than its obligations under Art. 67 of the Convention of 31 March 1831, dares to hope that a similar measure will be taken on the Rhine in order to obtain, as far as local circumstances permit, a normal gauge through the whole extent of the German and Dutch parts of the river.” Ibid. pp. 743–744.

206a. No formal obligation has been provided for in respect of the upkeep of the navigable waterways connecting the open sea with the Rhine through Dordrecht, Rotterdam, Hellevoetsluis and Brielle, though the interests of navigation are safeguarded by Article 2, para. 2. This provides that if one of these waterways becomes impassable through natural causes or as a result of artificial works, then the waterway which Dutch navigation is to use in replacement of the blocked passage will also be open to the navigation of the other States.

207. Rolin-Jacquemyns, op.cit. pp. 388–389.

208. Revision de l'Acte de navigation du Rhin de 1831 p. 112.Google Scholar

208a. Article 29 provides for closer co-operation between adjacent or opposite States. They are bound to inform one another of hydrotechnic works the execution of which might have a direct influence on the section of the river or its banks within another State's territory. Such works can be executed only with the previous consent of other interested State.

208b. It must be recalled that the territorial extent of the competence of the Central Commission for the Navigation of the Rhine ends at Gorcum and Krimpen [See the present author's article “The Regime of Navigation on International Waterways, Part II: The territorial scope of the regime of free navigation. 6 N.Y.J.L. (1975) p. 26, n, 75 Consequently, the Commission does not exercise any supervision concerning the execution of hydrotechnical works in the mouth of the Rhine below Gorcum and Krimpen.

209. Martens, N.R.G. 2nd series, vol. 10 p. 252 et seq.

210. Since Austria had ceded its part of the mandate to Hungary by the Agreement of 4 June 1883, it was the Hungarian Government which had the regularisation works executed on this sector of the Danube between 1890 and 1898. Cf. Blociszewski, , “Le régime danubien”, 11 Hague Recueil (1926-I) pp. 308–309Google Scholar; Hajnal, op. cit. pp. 185–187.

211. Under Art. 342 of the Treaty of Versailles, the Niemen shall be placed under the administration of an international commission only on a request being made to the League of Nations by any riparian State. No such request was ever made.

212. For documents relating to the section of the Rhine between Basle and Strasbouig, see: Les actes du Rhine (Publication of the Central Commission, 1957) pp. 34–35.Google Scholar

213. Martens, N.R.G. 3rd series, vol. 12 p. 605.

214. Conference on Navigable Waterways p. 425.

215. At the Conference, the Dutch delegation made an express reservation against a general obligation to carry out works of improvement, objecting that in a country such as the Netherlands where the effect of hydrotechnic works may in many respects be so far-reaching, that a question of this kind cannot possibly be regulated in a general fashion. Ibid. p. 145.

216. Considering that Romania had not signed the Treaty of London of 1883 which extended the jurisdiction of the European Commission over the sector of the Danube between Galatz and Braila, this State maintained subsequently that, between the mouths and Galatz, the Commission had all the powers it was granted under the treaties prior to 1883; on the sector from Braila to Galatz, however, it only possessed the functions which Romania described as “technical powers”, the power of keeping a river in a state suitable for navigation and of maintaining a pilotage service capable of navigating sea-going vessels, but not what she describes as the “juridical powers”, i.e. especially the power of enforcing regulation. In its Advisory Opinion, the Permanent Court of International Justice reached the conclusion that under international law the European Commission possessed the same power on the maritime sector of the Danube from Galatz to Braila as on the sector below Galatz. P.C.I.J. series B No. 14 p. 69.

217. For the text of the Treaty see: Documents diplomatiques relatifs à la revision des traités de 1839 (Publication of the Belgian Ministry of Foreign Affairs, Brussels, 1925) pp. 3–6.Google Scholar

218. “Aperçu des faits internationaux d'ordre juridique”, Annuaire Grotius 1934 p. 115.Google Scholar

219. Cf., Telders, B.M., “Der Kampf um die neue Rheinschiffahrtsakte” (1934), in Verzarnelde Geschriften, vol. 4 p. 1 et seqGoogle Scholar. It may be recalled that the Netherlands delegation to the Barcelona Conference made a reservation in this connection and that the Netherlands never ratified the 1921 Convention and Statute on the Regime of Navigable Waterways of International Concern.

220. The Netherlands did not, however, sign the Modus Vivendi, since no satisfactory solution had been found to the question of discrimination by the French Government between Antwerp and Rotterdam, in favour of the Belgian port, in respect of storage and origin surtaxes imposed on certain kinds of merchandise during their unloading at Strasbourg. Cf., Telders, B.M., “Aperçu des faits internationaux d'ordre juridique”, Annuaire Grotius 1937 p. 54.Google Scholar

221. The Romanian and Yugoslav Governments signed, on 30 November 1963, an Agreement relating to the establishment and operation of the Iron Gates Waterpower and Navigation System (512 U.N.T.S. p. 12 et seq.) which, in the opinion of the two Governments, would considerably improve navigation on this sector of the Danube. The two States wished the other riparian States of the Danube to participate in the financing of these works in proportion to the importance of their traffic on the Danube. A proposal to that effect was made in the Commission of the Danube in 1965. It was opposed, however, by the other riparians who considered that the hydraulic engineering works envisaged were essentially of interest to the two riparian countries of the Iron Gates. Austria, Hungary and Czechoslovakia recalled that they had proceeded to expensive works on their sections of the river which were profitable to all beneficiaries of navigation on the Danube, without asking the other riparians to participate in the cost. The Soviet Union considered the anticipated cost of the works too high. In international law, the position of Romania and Yugoslavia was confronted by the principle laid down in Art. 10 of the Barcelona Statute which provides that works of improvement of a navigable waterway are at the exclusive charge of the States which request and ensure their execution. The costs of the works were finally borne on a 50–50 basis by the two riparians, who each use half of the energy produced. Cf. 77 R.G.D.I.P. (1973) pp. 896–897.

222. Since the Lorraine steel industry has primary interests in the Moselle engineering works which make it navigable up to Thionville for vessels of 1500 ton, and leaving Luxembourg's participation, which may be regarded as symbolic, out of consideration, France undertook to bear a little more than two thirds of the cost and Germany a little less than a third, while only a tenth of the canalised section of the Moselle is situated within French territory. The annual cost of upkeep and maintenance of the works, however, were allocated among the riparian States in proportion to the number of kilometers of canalised Moselle within their territories, the upkeep and maintenance of which are their responsibility.

223. 540 U.N.T.S. p. 56 et seq. See Wildeman, , “Verleden en heden rond de Schelde-Rijnverbinding”, N.J.B. 1965 p. 621 et seqGoogle Scholar.; Baron de Gruben, op.cit.

224. Under Art. 6 the Contracting Parties have assumed responsibility, each in its own territory, for the execution of such works as may be necessary for the construction of the new waterway. These works however, were executed (with the exception of about 4 kilometers) within Dutch territory. The new waterway, which meets the requirements, both technical and economic, of present and foreseeable circumstances, was opened to traffic in September 1975. Since its construction benefits the Belgian economy almost exclusively, the cost of construction were allocated as follows: all expenses incurred on Belgian territory are for Belgium's account; the costs of construction between the Dutch frontier and the Eendracht are borne by Belgium (85 per cent) and the Netherlands (15 per cent), and those of construction of the section which is situated within the Eendracht are for Belgium's account.

225. “Praetor ait: Quo minus illi in flumine publico ripave eius opus facere, ripae agrive, qui circa ripam est, tuendi causa, ticeat, dum ne ob id navigatio deterioit fiat.” Dig., lib. 43, tit. 12, para. 1.

226. “…dum ne ob id navigatio deterioir fiat, ille enim sola refictio toleranda est, quae navigationi non est impedimento.” Dig., lib. 43, tit. 12, para. 2.

227. “Proinde sive derivetur aqua, aut exiguior facta minus sit navigabilis, vel si dilatentur, aut diffusa brevem aquam fiat, vel contra sic coangustetur et rapidior flumen fiat, vel si aliud fiat quod navigationem incommodet, difficiliorem faciat, vel prorsus impediat, interdicto locus erit.” Dig., lib. 43, tit. 12, para. 15.

228. “Deinde ait Praetor; Quod in flumine publico ripave eius factum, sive quod in id flumine ripave immissum habes quo statio iterve navigatio deterior sit, fiat, restituas.” Dig., lib. 43, tit. 12, para. 19.

229. Art. 30 is only applicable to the section of the Rhine which ends at Gorcum and Krimpen, But, according to the declaration of the Dutch plenipotentiary, inserted in the Final Protocol (in 7°), the Netherlands Government will ensure that, where bridges are constructed over waterways connecting the Rhine with the open sea through Dordrecht, Rotterdam, Hellevoetsluis and Brielle, vessels will be able to pass these bridges freely and without impediment by way of convenient passages. In a recent judgment the Supreme Court of the Netherlands defined the meaning of the prohibition on navigation being impeded by technical constructions. The facts were the following: in 1972 the Netherlands Government started the construction of a new bridge over the Waal (the main branch of the Rhine on Dutch territory). Two Dutch upstream shipbuilders were afraid that the bridge would prevent sea-going ships constructed at their yards from being transported to the sea in the usual way. In proceedings started before the Dutch courts they contended that the State of the Netherlands was acting in contravention of Article 30 of the Act of Mannheim and demanded that the construction be stopped until such alteration to the plans had been made as were necessary to allow free passage for sea-going ships. According to the judgment of the Supreme Court of the Netherlands of 21 June 1974, under Article 1 of the Act of Mannheim navigation on the Rhine is free for vessels of all nations for the transport of goods and persons. Therefore Article 30, where it speaks of “navigation on the Rhine”, must be deemed only to refer to river navigation for the transport of goods and persons. Consequently, Articles 1 and 30 do not concern the traffic referred to by the plaintiffs, viz. navigation to the sea by ocean steamers built at their ship-yard, which cannot be regarded as navigation for the transport of goods and persons. N.J. 1974 No. 439; 6 N.Y.I.L. (1975) pp. 367–369.

230. Martens, N.R.G. 2nd series, vol. 1, p. 117 et seq.

231. Op.cit. p. 307.

232. Martens, N.R.G. 3rd series, vol. 1 p. 44 et seq.

233. Martens, N.R.G. 3rd series, vol. 4 p. 208 et seq.

234. Annuaire 1911 pp. 347–367.

235. Conference on Navigable Waterways p. 415.

236. Etude de la Convention de Barcelone sur la régime des votes navigable d'intérêt international (1927) p. 124.Google Scholar

237. Martens, N.R.G. 3rd series, vol. 19 p. 290 et seq.

238. Martens, N.R.G. 3rd series, vol. 29 p. 487 et seq.; see also the Spanish-Portugese agreement of 16 July 1964 regulating the hydroelectric development of the international reaches of the river Duero and its tributaries. Boletin official del Estado, 19 August 1966.

239. 3 U.N.T.S. p. 343 et seq.

240. 453 U.N.T.S. p. 51 et seq.

241. 419 U.N.T.S. p. 125 et seq.

242. 8 A.F.D.I. (1962) p. 112 et seq. Quite probably this Convention is still inoperative as a result of the wars which have been raging in this area.

243. See Rivers in International Law (1959) p. 254Google Scholar. Sauser-Hall comes to the same conclusion: “A single principle seems to be generally accepted: there may be no diversion from a watercourse which is of nature likely to cause substantial injury to other owners or territorial units whose boundaries are bordered or traversed by the same watercourse.” “L'utilisation industrielle des fleuves internationaux” 83 Hague Recueil (1953-II) p. 517Google Scholar. Professor Florio provides a wider formulation on this proposition: “It is generally recognised that States do not enjoy absolute freedom within their territories and that they are held responsible for any serious injury caused to another State as a result of an act or omission contrary to the technical standards for a reasonable utilization of the respective natural resources”. “Sur l'utilisation des eaux non maritimes en droit international”, Festschrift für Friedrich Berber (1973) pp. 163–164.Google Scholar

244. Professor Bourne presumes the existence of a general obligation in this sense. In his opinion: “…it may be claimed that international law imposes an obligation on a basin State to refrain from undertaking a work or utilisation of waters that is objected to by co-basin States until a certain time has elapsed…” “The suspension of disputed works or utilisations of the waters of international drainage basins.” Ibid. p. 123.