THE DANISH SOUND DUES

[$ 156

cent to it. It is the relation which the channel of communication bears to navigation generally as a means of access to the seas thus connected which, rather than any other circumstance, is decisive of the equities of foreign maritime States. That a territorial sovereign ought to be permitted to protect itself as against hostile acts in times of peace or war, and regardless of its status as a belligerent or neutral, should be clear. The mode of protection should, however, be one designed to oppose, the least possible obstacle in the way of navigation. The neutralization of a strait offers an appropriate means of achieving this two-fold object.

A channel of water, whether or not described as a strait, lying wholly within the territory of a single State, may afford a convenient means of access to, or connection between, different parts of the same sea where it is contiguous to the coasts of the same State, and without also becoming a necessary channel of communication for international commerce. Long Island Sound is an instance. It is useful chiefly for coastwise traffic. There would seem to be no obligation on the part of the United States to permit foreign ships generally to pass through it save on such terms as American authority may prescribe. That both termini of a territorial strait, as well as the entire waterway, lie within the domain of a single State would not, however, appear to create a right to bar the navigation of foreign ships, if two different seas are thus connected and the use of the waterway a matter of vital concern to commerce generally.2 The Kiel Canal, were it a natural waterway, would be illustrative.3

(b)

156. The Danish Sound Dues.

Since 1857 the navigation of the sound and belts connecting the Baltic with the North Sea has been free from the duties previously levied by Denmark under a claim of right based upon "immemorial prescription, sanctioned by a long succession of treaties with foreign powers." This freedom was established, in so far as concerned the maritime powers of Europe, by the Treaty

1 Extent of the National Domain, Straits, supra, § 150.

2 See Naval War College, Int. Law Topics, 1913, 46.

3 See clauses relating to the Kiel Canal in Arts. 380-386, of treaty of peace with Germany, June 28, 1919.

4 Mr. Buchanan, Secy. of State, to Mr. Flenniken, Minister to Denmark, No. 7, Oct. 14, 1848, House Ex. Doc. No. 108, 33 Cong., 38, 39, Moore, Dig., I, 659, 661. Dana's Wheaton, 262–264; Woolsey, 6 ed., 77-79; BonfilsFauchille, 7 ed., § 509; T. E. Holland, Studies in International Law, 277–279; Rivier, I, 158-159.

of Copenhagen of March 14, 1857, providing for the capitalization of the Sound dues; and with respect to the United States, by its treaty with Denmark of April 11, 1857, providing for the payment by the former of $393,011, and for the proper lighting and buoying of the passages and other necessary improvements thereof by Denmark without charge.2

(c)

§ 157. The Bosphorus and the Dardanelles.

When Turkey in the eighteenth century ceased to retain control over all of the territory surrounding the Black Sea, and the waters thereof were no longer regarded as territorial, the Straits of the Bosphorus and the Dardanelles, although remaining within the Turkish domain, formed a passage between two open seas. Turkey necessarily yielded the right of navigation through those waterways to foreign merchant vessels. According, however, to a series of treaties, of which the first was concluded with Great Britain, January 5, 1809, the European Powers agreed that Turkish authority might bar the passage of foreign vessels of war.3 By the terms of the Treaty of London of July 13, 1841, as well as of the Treaty of Paris of March 30, 1856, and that of London of March 13, 1871, the Sultan reserved the right to permit the passage of light vessels of war employed in the service of foreign legations; and by the terms of the treaty of 1871, it was declared that he might open the Straits in times of peace to the vessels of war of friendly and allied powers, should he deem it necessary for the execution of the treaty of March 30, 1856.4

1 Brit. and For. State Pap., XLVII, 32.

2 Malloy's Treaties, I, 380; statement in Moore, Dig., I, 659-664, and documents there cited; Dana's Wheaton, 264-267; correspondence between the United States and Denmark, 1841-1854, contained in British and Foreign State Papers, XLV, 807-863; Eugene Schuyler, American Diplomacy, 306–316. The right of navigation of Fuca's Straits contained in the treaty between the United States and Great Britain of June 15, 1846, was not, in the opinion of Mr. Wharton, Acting Secy. of State, May 22, 1891, in a communication to the Secretary of the Treasury, regarded as violated by the prohibition to engage in the coasting trade. 182 MS. Dom. Let. 79; Moore, Dig., I, 664.

3 Nouv. Rec., I, 160; Coleman Phillipson and Noel Buxton, The Question of the Bosphorus and Dardanelles, London, 1917.

4 See protocol of London, July 10, 1841, signed by plenipotentiaries of Great Britain, Austria, Russia, Prussia and Turkey, Nouv. Rec. Gén., II, 126; Art. I, Treaty of London, July 13, 1841, concluded by Great Britain, Austria, Prussia and Russia, with Turkey, Nouv. Rec. Gén., II, 128; Art. X, Treaty of Paris, March 30, 1856, and Art. I of convention annexed thereto, Nouv. Rec. Gén., XV, 770 and 785; Art. II, Treaty of London, March 13, 1871, Nouv. Rec. Gén., XVIII, 303, 305; T. E. Holland, The European Concert in the Eastern Question, 224-226; Eugene Schuyler, American Diplomacy, 317-328; Moore, Dig., I, 664-666; Maurice Lozé, La question des détroits, Paris, 1908.

POSITION OF THE UNITED STATES

[§ 158 The position of the United States, in the years preceding The World War, appears to have been one of reluctant acquiescence.1 Secretaries Cass and Fish were unwilling to admit the right of Turkey, in conjunction with a group of European Powers, by means of conventions to which the United States was not a party, to bar the passage of American vessels of war through the Straits.2 Moreover, certain requests made by American naval commanders and addressed to Turkish authorities, for permission to pass through the Dardanelles, were said to have been unauthorized.3 On two occasions, however, in 1895, permission was requested by the American Minister at Constantinople, without the apparent disapproval of the Department of State. In both instances consent was refused.4

President Wilson, in his address to the Congress on conditions of peace, January 8, 1918, declared that "the Dardanelles should be permanently opened as a free passage to the ships and commerce of all nations under international guarantees.'

§ 158. The Same.

According to the Turkish treaty of peace signed at Sèvres, August 10, 1920, the navigation of the Straits, including the Dardanelles, the Sea of Marmora, and the Bosphorus, were to be opened in time of peace and war, to every vessel of commerce or of war, and to military and commercial aircraft without distinction. These waters were not to be blockaded; nor was any belligerent right or act of hostility to be committed therein, “unless in pursu

1 Mr. Fish, in the course of a communication to Mr. Boker, Minister to Turkey, Jan. 3, 1873, declared: "The right [of Turkey], however, has for a long time been claimed and has been sanctioned by treaties between Turkey and certain European States. A proper occasion may arise to dispute the applicability of the claim to United States men-of-war. Meanwhile it is deemed expedient to acquiesce in the exclusion." MS. Inst. Turkey, II, 452, Moore, Dig., I, 667.

2 Mr. Cass, Secy. of State, to Mr. Pickens, Minister to Russia, Jan. 14, 1859, MS. Inst. Russia, XIV, 159, Moore, Dig., I, 665; Mr. Fish, Secy. of State, to Mr. McVeagh, Minister to Turkey, No. 29, May 5, 1871, For. Rel. 1871, 902, Moore, Dig., I, 666; Mr. Fish, Secy. of State, to Mr. Boker, Minister to Turkey, Jan. 25, 1873, MS. Inst. Turkey, II, 456, Moore, Dig., I, 668. Compare Mr. McVeagh, Minister to Turkey, to Mr. Fish, Secy. of State, Jan. 24, 1871, and March 27, 1871, For. Rel. 1871, 892 and 897, Moore, Dig., I, 667, note.

Mr. Fish, Secy. of State, to Mr. Boker, Minister to Turkey, Jan. 3, 1873, MS. Inst. Turkey, II, 452, Moore, Dig., I, 667; Same to Same, Jan. 25, 1873, MS. Inst. Turkey, II, 456, Moore, Dig., I, 668.

4 Mr. Terrell, Minister to Turkey, to Mr. Olney, Secy. of State, Nov. 21, and Dec. 6, 1895, concerning the U. S. S. Marblehead, For. Rel. 1895, II, 1344 and 1383, Moore, Dig., I, 668; Mavroyeni Bey, Turkish Minister, to Mr. Olney, Secy. of State, Jan. 16, 1896, concerning the U. S. S. Bancroft, For. Rel. 1895, II, 1461, Moore, Dig., I, 668, note.

'Official Bulletin, Jan. 8, 1918.

ance of a decision of the Council of the League of Nations."1 A so-called "Commission of the Straits" was to exercise control in the name of the Turkish and Greek Governments, and with authority over all waters between the Mediterranean mouth of the Dardanelles and the Black Sea mouth of the Bosphorus, embracing waters within three miles of the mouths.2 The Commission was accorded complete independence of local authority in the exercise of its powers, and concerning its own flag, budget and organization.3 The Commission was to inform the representatives of the Allied Powers in case of interference with the right of passage through the Straits, as a means of invoking their forcible aid. In matters of navigation all ships were to be treated on terms of absolute equality; 5 and the levying of any dues or charges was to be without discrimination. The transit of vessels of war was to be in conformity with the regulations. The conditions established for the transit of belligerent vessels of war were specified in terms resembling those of the Suez Canal Convention of October 29, 1888, subject, however, to the reservation that they should not limit belligerent rights exercised in pursuance of a decision of the Council of the League of Nations.8

When the entire course of a river is within the territory of a single State, it is generally agreed that a right of exclusive control

1 Arts. 37-61. The treaty remains as yet unratified.

2 Arts. 38-39. The Commission was to be composed of representatives of the United States (if it should be willing), Great Britain, France, Italy, Japan, Russia (when belonging to the League of Nations), Greece, Roumania, Bulgaria and Turkey (when the last two should belong to the League of Nations). Art. 49. Each Power was to appoint one representative; but representatives of the United States, Great Britain, France, Italy, Japan and Russia were to have two votes each, while representatives of the other three Powers were to have one vote each. Large rights of administrative control were conferred upon the Commission. Art. 43.

3 Art. 42.

Art. 44. The Commission was clothed with power to acquire property or permanent works, raise loans, and levy dues. Art. 45. Functions formerly exercised by certain specified sanitary organizations were to be discharged under the control of the Commission which was to cooperate with the League of Nations in measures for the combating of diseases. Art. 46. Provision was made with respect to the exercise of jurisdiction. Arts. 49–50.

is possessed by the territorial sovereign, which may, therefore, lawfully close the navigation of the stream to foreign ships. Any privilege of transit enjoyed by them must be regarded as due to the consent of that sovereign.1

(b)

International Streams of North America

§ 160. Preliminary.

(i)

When a navigable river flows through the territory of two or more States, or forms an international boundary, the broad question arises as to the nature and extent of the right of one of them to exercise privileges of navigation within waters outside of the national domain, whether downstream or upstream, or on the opposite side of a line of demarcation. The inquiry also arises respecting the claims of non-riparian States.2

1 "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." J. B. Moore, Principles of American Diplomacy, 1918, 130. Mr. Foster, Secy. of State, to Sir Julian Pauncefote, British Minister, at Washington, Dec. 31, 1892, For. Rel. 1892, 335, 337; Moore, Dig., I, 626-627; Oppenheim, 2 ed., I, § 176.

Compare instructions of Mr. Clay, Secy. of State, to Mr. Gallatin, Minister to Great Britain, June 19, 1826, American State Pap., For. Rel., VI, 762, 763. 2 Concerning the navigation of international rivers generally, see Alphonse Bergès, Du Régime de Navigation des Fleuves Internationaux, Toulouse, 1902; J. C. Carlomagno, El Derecho Fluvial Internacional, with bibliography, Buenos Aires, 1913; Etienne Carathéodory, Du Droit International Concernant les Grands Cours d'Eau, Leipzig, 1861; Ed. Engelhardt, Du Régime Conventionnel des Fleuves Internationaux, Paris, 1879; Histoire du Droit Fluvial Conventionnel, Paris, 1889; G. Kaeckenbeeck, International Rivers, Grotius Society Publications, No. 1, London, 1918 (subjected to a notable review by Joseph P. Chamberlain, in Yale L. J., XXVIII, 519); Ismael López, Régimen Internacional de los Ríos Navegables, Bogotá, 1905; P. M. Ogilvie, International Waterways, New York, 1920; Pierre Orban, Etude de Droit Fluvial International, with bibliography, Paris, 1896; J. Vallotton, “Du Régime Juridique des Cours d'Eau Internationaux de l'Europe", Rev. Droit Int., 2 ser., XV, 271.

See, also, Bonfils-Fauchille, 7 ed., 1914, §§ 520-531, with bibliography; Calvo, 5 ed., I, 433-465; Clunet, Tables Générales, I, 462-465, 882-883; Hall, Higgins' 7 ed., §§ 38, 39; Martens, II, 345-355; J. B. Moore, Principles of American Diplomacy, New York, 1918, 130-134; Dig. of Int. Law, I, §§ 128132; E. Nys, "Les fleuves internationaux traversant plusieurs territoires", Rev. Droit Int., 2 ser., V, 517; Le Droit International, I, 423-437; Oppenheim, 2 ed., I, §§ 176-181, with bibliography; Rivier, I, 221-229; Eugene Schuyler, American Diplomacy, New York, 1886, 265-305, 319-366; Dana's Wheaton, 274-288; Woolsey, 6 ed., 79-83. Also Draft of International Regulations for the Navigation of Rivers, adopted by the Institute of International Law at Heidelberg in 1887, Annuaire, IX, 182, J. B. Scott, Resolutions, 78; Resolutions adopted by the Institute at Madrid in 1911, on the subject of International Regulation of the Use of International Streams, Annuaire, XXIV, 365, J. B. Scott, Resolutions, 168.