THE CONGO. THE NIGER [§ 181 States; and the special application of this principle with respect to the Rhine and the Danube; 1 1 (e) The arrangement for a new régime under the General Convention to be drawn up by the Allied and Associated Powers and approved by the League of Nations, as well as the régime to be laid down for the Danube by the contemplated Conference of the Powers; (f) The scope of the hydrotechnical privileges with respect to the Rhine, yielded to France and Switzerland; (g) The obligation imposed upon Germany to make restitution and reparation to the European Commission of the Danube for damages inflicted upon it during the war. (e) International Streams of Africa § 181. The Congo. The Niger. The General Act of the Berlin Conference of February 26, 1885, made significant application of the fundamental principles of the Congress of Vienna to the rivers Congo and Niger.2 With respect to both, it was provided that navigation of the stream and the affluents thereof, as well as of roads, railways, or lateral canals that might be constructed with the special view of obviating unnavigability or of correcting imperfections of a river route, should be and remain "free for the merchant ships of all nations equally, whether carrying cargo or ballast, for the transportation of both merchandise and passengers." The subjects and flags of all nations were treated on a footing of perfect equality "not only for the direct navigation from the open sea to the inland ports", and vice versa, "but also for the great and small coasting trade, and for the boat traffic along the course of the river." It was declared that throughout the courses and in the mouths of both the Congo and the Niger, no distinction should be made between the subjects 1 It may be noted that the United States was not to be represented on any of these commissions. 2 For the text of the General Act, see Brit. and For. State Pap., LXXVI, 4; also Senate Ex. Doc. No. 196, 49 Cong., 1 Sess., 297. 3 Chapter IV, embracing Arts. XIII to XXV, embodied an Act for the navigation of the Congo, while Chapter V, embracing Arts. XXVI to XXXV, made provision for the navigation of the Niger. Attention should also be called to the preamble of the General Act and to Art. II thereof. See the illuminating report of Baron de Courcel in behalf of the commission which drafted the instruments for the regulation of the navigation of the Congo and the Niger, Senate Ex. Doc. No. 196, 49 Cong., 1st Sess., 93; also protocol of the session of Nov. 15, 1884, of the Berlin Conference, id., 23. of riparian States and those of non-riparian States, and that no exclusive privilege of navigation should be granted to any companies, corporations or private persons whatsoever. These provisions were, it was said, "recognized by the signatory powers as being henceforth a part of international law." With respect to both rivers it was declared that there should be levied no maritime or river toll based on the mere fact of navigation, nor any tax on goods aboard of ships, and that there should only be collected taxes or duties having the character of an equivalent for services rendered in navigation.1 Provision was also made for the neutralization of both streams in the event of war.2 With respect to the Congo an international commission was created and clothed with broad powers for the purpose of executing the provisions agreed upon.3 These liberal arrangements, and particularly those dealing with the Congo, were possible partly because the waters in question traversed territory of which the occupants were chiefly a native population unfamiliar with European civilization, and of which the sovereignty was not always lodged in an independent State recognized as such. Moreover, the commercial designs of the contracting Powers, as well as the welfare of the inhabitants concerned, were deemed to be enhanced rather than thwarted by the plan adopted. It was natural that under such circumstances broadest application of fundamental principles should have met with approval, and that they should have been supported by the 1 In certain other respects the provisions concerning the regulations for the navigation of the Congo were not identical with those relating to the Niger. 2 Arts. XXV and XXXIII. It is significant that Belgium at the outbreak of The World War in August, 1914, after its own territory had been invaded, was solicitous, for humanitarian reasons, that the field of hostilities should not extend to Central Africa, and that pursuant to Art. XI of the General Act of the Berlin Conference, European colonies within the basin of the Congo should be neutralized. Belgian Gray Book, Misc. No. 12 [1914], Cd. 7627, Nos. 57, 58, 59, 74, 75 and 76. 3 Arts. XVII-XXIV. The relation of Great Britain to Nigeria, traversed by the lower waters of the Niger, rendered inapplicable the establishment of an international commission for that river such as was designed for the Congo. The Persian River, Karun. In a note to the representatives of foreign Powers at Teheran, Oct. 30, 1888, the Persian Government announced that commercial steamers of all nations, without exception, besides sailing vessels which formerly navigated the Karun River, might undertake the transportation of merchandise in that river "from Muhammereh to the dyke at Ahvaz, but it is on the condition that they do not pass the dyke at Ahvaz upwards, as from the dyke upwards the river navigation is reserved to the Persian Government and its subjects, and the tolls which the Persian Government will organize shall be paid at Muhammereh. Such vessels are not to carry goods prohibited by the Persian Government, and vessels are not to stay longer than necessary for the unloading and loading of commercial loads." Brit. and For. State Pap., LXXIX, 781. CERTAIN GENERAL CONCLUSIONS [§ 182 creation of an international commission given large powers of control.1 It should be observed, however, that the Congo Commission "never had an effective life."2 This circumstance, while not necessarily weakening the value of the general principles enunciated by the Berlin Conference, served to emphasize the insufficiency and inapplicability to the Congo River of the administrative régime thus sought to be established. (f) § 182. Certain General Conclusions. The true basis of any right possessed by a State to navigate the waters of a river traversing foreign territory is believed to be the general interest of the family of nations that such a privilege be not withheld. That interest must vary according to geographical considerations. It is strongest where a riparian State upstream seeks access to the sea. The international community is truly solicitous that each State in attempting to realize its legitimate aspirations should utilize fully those natural channels of water 1 J. C. Carlomagno, El Derecho Fluvial Internacional, 56–72; E. Engelhardt, Histoire du Droit Fluvial Conventionnel, 98-102; A. Bergès, Du Régime de Navigation des Fleuves Internationaux, 96–109; G. Kaeckenbeeck, International Rivers, 137-171, and documents quoted; Pierre Orban, Etude de Droit Fluvial International, 275-317; Bonfils-Fauchille, 7 ed., §§ 530 and 531, and periodical literature there cited. See correspondence between Great Britain and Portugal respecting the navigation of the rivers Zambesi and Shiré, 1876–1877, Brit. and For. State Pap., LXVIII, 1345–1352; also correspondence between the same States, 1887-1888, in which the right of Portugal to close the Zambesi was not admitted by Great Britain, id., LXXIX, 1062-1152; Portuguese decree of Nov. 18, 1890, with respect to free navigation of the Zambesi "in accordance with the principles which the Governments of France and Great Britain agreed to establish on the Niger in virtue of the General Act of the Conference of Berlin in 1885", id., LXXXII, 338; Portuguese regulations for the navigation of the Zambesi and Shiré of May 18, 1892, id., LXXXVII, 1108. See agreement between Great Britain and Germany of March 11, 1913, respecting (in part) the regulation of navigation on the Cross River, a small independent stream flowing from the Cameroons through Nigeria to the sea. Brit. and For. State Pap., CVI, 782, 786. 2 Joseph P. Chamberlain, in Yale L. J., XXVIII, 519, 522; also Francis Bowes Sayre, Experiments in International Administration, New York, 1919, 84-87. 3 Compare the reasoning of Mr. Jefferson, Secy. of State, in 1792. Cf. The Mississippi, supra, § 161. Compare also theory of Mr. Adams, Secy. of State, in communication to Mr. Rush, Minister to Great Britain, June 23, 1823, Am. State Pap., For. Rel., VI, 757, 758. Hall, Higgins' 7 ed., p. 136, note 1, commenting on the opinions of various writers of the nineteenth century. 4 This circumstance, which has been a decisive factor in international practice, appears oftentimes to have been ignored by writers endeavoring to formulate plans for general adoption. communication which border or pass through its domain, and each may confidently invoke that solicitude in testing or proclaiming the reasonableness of its demands.1 The general interest of the family of nations acknowledges also the equities of the several riparian States with respect to the navigation of waters upstream or on the farther side of a boundary formed by the thalweg. It heeds also the claims of non-riparian and of oversea States, but its respect therefor is measured in part according to the navigability of the particular stream by vessels sailing from their ports. It may be doubted whether enlightened States as a whole are concerned with any claim not in fact capable of actual use by a claimant. The general international interest has given rise to numerous agreements among the States most deeply concerned. These compacts have developed what may be called a fluvial conventional law, measuring and portraying the extent to which States have in practice responded to the requirements of the international society. It is to be observed that treaties have generally not purported to provide for more than the requirements of the contracting parties with respect to the particular river concerned.2 Even Acts such as those of the Congress of Vienna or of the Berlin Conference must be regarded as having been designed primarily to apply the principles enunciated to the problems peculiar to special groups of rivers within specified areas.3 Inasmuch as fluvial conditions in Europe, in North America, in South America and in Africa are not the same, and differ sharply according to geographical and 1 This idea appears to have been reflected by Mr. Gallatin, American Minister to Great Britain, in his discussion with British plenipotentiaries touching the claim of the United States to navigate the St. Lawrence. He contended that "it was a right essential to the condition and wants of human society, and conformable to the voice of mankind in all ages and countries." He added that "the principle on which it rested challenged such universal assent that, wherever it had not been allowed, it might be imputed to the triumph of power or injustice over right." __See communication to Mr. Adams, Secy. of State, Aug. 12, 1824, Am. State Pap., For. Rel., VI, 758, 760. Also memorandum on the American claim to the navigation of the St. Lawrence prepared by Mr. Rush, id., 769. It is not without significance that formal proposal in 1918, that free and secure access to the sea be assured the population of a newly erected Polish State was made by the Chief Executive of an American country, who thereby voiced the actual concern of the family of nations that each new member thereof should enjoy the full benefit of its natural water communications with the ocean. President Wilson, address to the Congress, Jan. 8, 1918, H. Doc. 765, 65 Cong., 2 Sess. This has been conspicuously true in the case of treaties regulating the navigation of rivers traversing or bounding the United States. It is not intimated that these Acts did not give expression to a broader design. It is merely suggested that the object of chief concern to the negotiators was the regulation of navigation within particular groups of rivers. THE PRINCIPLES INVOLVED [§ 183 other conditions distinctive of each continent, the attempt still remains futile to lay down rules applicable alike to all international waterways. Riparian States have not sought to do so. The treaty of peace with Germany of June 28, 1919, gave heed to every possible claim of non-riparian States of every continent to enjoy privileges of navigation in the particular rivers recognized as having an international character. It was not, however, deemed necessary to enunciate in that document a principle of law, and still less, to intimate to what extent it should be applied to streams outside of Europe.) The acquisition by certain non-riparian European Powers of a right to participate in the administrative control of rivers named in the treaty was merely an incident in the attempt of the Principal Allied and Associated Powers in terminating the war, to establish a new order of things of their own devising with respect to navigation in streams passing through or bounding the territories of their enemies. The contemplated submission to the League of Nations of the fresh régime to be laid down in the General Convention as drawn up by those Powers, gave hope that no rules of navigation injurious to a stream as a whole, or to any riparian proprietor, would be promulgated. From the ultimate treatment of the Rhine or the Danube (as the result of the Conference relative to the latter), there is not, however, necessarily to be derived the régime which should be applied to the St. Lawrence or the Amazon. (5) Diversion of Waters § 183. The Principles Involved. The diversion of the waters of an international stream for any purposes, such as those of sanitation, navigation, power or irrigation, tends to interfere with the fullest use of the river by all riparian proprietors. There may be said to be an essential conflict between the interest of the stream as a whole, and that of the particular State diverting its waters. Where a river traverses or serves as the boundary of the territories of several States, the existence of the river interest, as such, becomes the more apparent, because of the common concern of all in its welfare. In the case of a non-navigable river, the upstream proprietor of the territory on both sides of the stream may in fact claim the |