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NOTES ON RIVERS AND NAVIGATION IN INTER

NATIONAL LAW

NATIONAL STREAMS

When the entire course of a river passes through the territory of but a single state, it is generally agreed that a right of exclusive control is possessed by the territorial sovereign which may, therefore, bar the navigation of the stream by foreign nations. Any privileges of transit enjoyed by their vessels are always understood to be subject to the consent of the local state.1 Thus, with respect to such rivers as the Mississippi and the Hudson, foreign countries enjoy no right of navigation.2

INTERNATIONAL STREAMS

IN NORTH AMERICA

The Mississippi

When a river is navigable within two or more countries, questions arise as to the nature and extent of the duty of a riparian state to permit the navigation of the waters within its own territory by foreign vessels. It is to be ascertained whether the duty towards states not bordering on the river is identical with that towards other riparian countries; also whether there is a distinction between the obligation with respect to a riparian neighbor up stream, and that towards another down stream.3 The United States has long been

confronted with these problems.

1 See, for example, Westlake, I. 144; Oppenheim, I. 226. But see contra, Bluntschli, Droit International Codifié, 5th ed., § 314.

2 Declares Professor Moore: "It is not doubted that rivers such as the Hudson and the Mississippi, which are navigable only within the territory of one country, are subject to that country's exclusive control." (American Diplomacy, pp. 82-83.) See also, Mr. Foster, Secretary of State, to Sir Julian Pauncefote. British Minister, Dec. 31, 1892, U. S. For. Rel., 1892, 335, 337; Moore, Int. L. Dig., I, 626-627.

3 Concerning the navigation of rivers generally, see E. Englehardt, "Historie du

According to Article VIII of the treaty of peace between the United States and Great Britain of 1782-1783, it was agreed that the navigation of the Mississippi from its source to the ocean should remain forever open to the respective citizens and subjects of those countries.+

As the consequence of its treaty with Great Britain of September 3, 1783, Spain acquired East and West Florida, thereby securing sovereignty over the territory on both sides of the Mississippi at its mouth. The United States thereupon sought Spanish recognition of a right of navigation through the lower waters to the sea. After droit fluvial conventionnel," Paris: 1889; Communication to the Institute of International Law, Annuaire, IX, 156; A Bergès, “Du regime de navigation des fleures internationaux," Toulouse: 1902; Bibliography in Clunet, Tábles Génerale, I, 462– 465, 882-883; Schuyler, American Diplomacy, 265–305, 319-366; J. B. Moore, American Diplomacy, 82-86; E. Nys, Les fleuves internationaux traversant plusieurs territoires; " Rev. D. I. L. C., 2 ser., V, 517; Woolsey, 6th ed., 79-83; Oppenheim, I, 226-229; Westlake, I, 142-159; Dana's Wheaton, 274-288; Lawrence, 186-189; Calvo, I, 433-465; Bonfils-Fauchille, 4th ed., 288-296; Martens, II, 345–355; Rivier, I, 221-229; Liszt, 3d ed., 216–228; Hall, 5th ed., 131–140. 4 U. S. Treaties in Force, 1904, 290.

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5 See letter from the Minister of Spain to Mr. Pickering, Sec. of State, May 6, 1797. Am. State Pap., For. Rel., II, 15.

6 Mr. Jefferson, Secretary of State, in support of the claim of his government, relied first upon Article V of the treaty between Great Britain and France of February 10, 1763, providing for free navigation of the Mississippi by the subjects of those countries; secondly, upon the treaty of peace between the United States and Great Britain of 1782-1783; and finally, upon the "law of nature and nations." He asserted that the sentiment was written in deep characters on the heart of man that "the ocean is free to all men, and their rivers to all their inhabitants." Accordingly, he declared that: "When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind.” He said that the writers on the subject were agreed that an innocent passage along a river was the natural right of those inhabiting its borders above; that although this right was regarded as an inherited one, inasmuch as the modification of its exercise depended to a large degree on the convenience of the nation through whose territory foreign vessels passed, it was nevertheless: "still a right as real as any other right, however well defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shores below, and founded in the same

protracted negotiations a treaty was concluded, October 27, 1795. With respect to the Mississippi it was declared in Article IV that:

His Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth, from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other Powers by special convention.

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According to Article III of the Jay treaty, concluded with Great Britain the previous year, the United States had agreed that the Mississippi should, according to the treaty of peace of 1782-1783, be entirely open to both parties." In 1796 the United States and Great Britain annexed to the Jay treaty an explanatory article with reference to the navigation of the rivers and waters of the contracting parties, to the effect that no stipulations in any convention subsequently concluded should be understood to derogate in any manner from the rights of commerce and navigation of their respective citizens and subjects for which provision had been made in their agreement of 1794.9

Spain protested, contending that this article was in derogation of the Spanish treaty of 1795, which, it was asserted, was the basis of the American right of navigation.10 It is to be observed that the treaties concluded by the United States with both Great Britain and Spain purported to secure rights of navigation for the contracting

natural relations with the soil and water." He said also: "We might add, as a fifth sine qua nor, that no phrase should be admitted in the treaty which could express or imply that we take the navigation of the Mississippi as a grant from Spain. But, however disagreeable it would be to subscribe to such a sentiment, yet, were the conclusion of a treaty to hang on that single objection, it would be expedient to waive it, and to meet, at a future day, the consequences of any resumption they may pretend to make, rather than at present, those of a separation without coming to any agreement." (Instructions to Messrs. Carmichael and Short, Commissioners to negotiate a treaty with Spain, March 18, 1792. Am. State Pap., For. Rel., I, 252–257.)

7 Id., I. 547 ; U. S. Treaty Vol. (1776-1887), 1007.

8 U. S. Treaty Vol. (1776-1887), 380–381.

9 U. S. Treaty Vol. (1776-1887), 395.

10 See correspondence in May, 1797, between Mr. Pickering, Sec. of State, and the Spanish Minister. Am. State Pap., For. Rel., II, 14-15, 16–17.

parties exclusively. No general principle as to the freedom of navi gation of international rivers was expressed. The language of the convention with Spain gave some foundation for the contention that the right of the United States to navigate the Mississippi was a grant from his Catholic Majesty.

By the acquisition of Louisiana and the Floridas the United States, by virtue of the treaties respectively with France of April 30, 1803, and with Spain of February 22, 1819, acquired ownership over the lower banks of the Mississippi and its tributaries. That river thereupon became a national stream.11

The St. Lawrence

In view of the principles previously asserted by Secretaries Adams and Clay, as well as by Messrs. Rush and Gallatin, the adjustment of the issue between the United States and Great Britain concerning the St. Lawrence is significant.12 In consideration of sacrifices regarded as equivalent in value, the United States, according to Article IV of the reciprocity treaty of June 5, 1854, secured temporarily the right of free navigation; and that, by virtue of a convention terminable on one year's notice.13

11 It had been supposed by the negotiators of the treaty of 1782-1783 with Great Britain, that the source of the Mississippi was in Canada, and that the boundary line should run from the most northwestern point of the Lake in the Woods on a due west course to the Mississippi. As a matter of fact such a line did not intersect that river. (See Moore, Int. L. Dig., I, 625; also Moore, Int. Arbitrations, I, 705–707.)

12 See Am. State Pap., For. Rel., VI, 757-777. An excellent summary of the several arguments in support of the claims advanced by the United States is contained in Moore, Int. L. Dig., I, 631-635.

13 U. S. Treaty Vol. (1776–1887), 448, 451–452. The provisions of Article IV for the navigation of the St. Lawrence and Canadian canals used as a means of communication between the Great Lakes and the Atlantic by citizens and inhabitants of the United States on the same basis as British subjects, contained also the declaration that the British Government retained the right to suspend the privilege on giving due notice thereof, and that in case of such suspension the United States might suspend also the operation of Article III (providing for the free admission of certain articles specified into the British Colonies and into the United States), for such period as the rights of navigation were suspended. Article IV also gave to British subjects the right to navigate Lake Michigan for

According to Article XXVI of the treaty of Washington of May 8, 1871, the navigation of the St. Lawrence ascending and descending to and from the sea, from the point where the river ceased to be the international boundary

Shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the Dominion of Canada, not inconsistent with such privilege of free navigation.14

14

The Yukon, Porcupine and Stikine. The St. John. The Columbia

Article XXVI of the treaty with Great Britain of May 8, 1871, provided for the free navigation forever of the rivers Yukon, Porcupine, and Stikine, ascending and descending to the sea, to the citizens and subjects of the two countries, subject to any regulations of either country within its own territory not inconsistent with free navigation. Thus, the United States, the lower riparian proprietor of those Alaskan rivers, secured a right of navigation through the upper waters wholly within British territory.15

a term of years. The United States engaged also to urge the State governments to give British subjects the use of the State canals on terms of equality with the inhabitants of the United States. It was further agreed that duties should not be levied by Great Britain on Maine lumber floated down the river St. John and its tributaries, when shipped to the United States from New Brunswick. Concerning this article see comment of Hall, 5th ed., 138.

14 U. S. Treaties in Force, 1904, 344.

15 U. S. Treaties in Force, 1904, 344. "This stipulation is understood to secure 'the right of access and passage,' but not the right to share in the local traffic' between American and British ports, as the case may be.” (Moore, Int. L. Dig., 1, 635, citing Mr. Adee, Second Assistant Sec. of State, to Mr. Woodbury, Jan. 6, 1898, 224 MS. Dom. Let. 229.) See also, id., I, 635-636.

Concerning the whole article, see also Schuyler, American Diplomacy, 290–291. Article XXVII contains an engagement by the British Government to urge upon that of the Dominion to secure for the inhabitants of the United States on terms of equality with those of the Dominion, the use of the Welland, St. Lawrence, and other canals; the United States, on the other hand, engaging that British subjects may on similar terms enjoy the use of the St. Clair Flats; and also to urge the State governments to secure for such subjects, on like terms, the use of the several State canals connected with the navigation of the lakes or rivers traversed by or contiguous to the international boundary. (U. S. Treaties in Force, 1904, 344-345.)

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