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[1] On December 9th, 1926, the
Council of the League of Nations adopted the following Resolution:
"The Council, having considered the letter dated September 25th, 1926, from
the Chairman of the Advisory and Technical Committee for Communications and
Transit, forwarding to the Secretary-General for submission to the Council
the text of an Agreement made on September 18th, 1926, between the
Governments of France, Great Britain, Italy and Roumania, whereby the said
Governments request the Council to submit certain questions to the Permanent
Court of International Justice for an opinion, [p7] and having approved the
said request, has the honour to ask the Permanent Court of International
Justice to give an advisory opinion on the questions formulated in the said
Agreement which are as follows:
(1) Under the law at present in force, has the European Commission of the
Danube the same powers on the maritime sector of the Danube from Galatz to
Braila as on the sector, below Galatz? If it has not the same powers, does
it possess powers of any kind? If so, what are these powers? How far
upstream do they extend?
(2) Should the European Commission of the Danube possess either the same
powers on the Galatz-Braila sector as on the sector below Galatz, or certain
powers, do these powers extend over one or more zones, territorially denned
and corresponding to all or part of the navigable channel to the exclusion
of other zones territorially defined, and corresponding to harbour zones
subject to the exclusive competence of the Roumanian authorities? If so,
according to what criteria shall the line of demarcation be fixed as between
territorial zones placed under the competence of the European Commission and
zones placed under the competence of the Roumanian authorities? If the
contrary is the case, on what non-territorial basis is the exact dividing
line between the respective competence of the European Commission of the
Danube and of the Roumanian authorities to be fixed?
(3) Should the reply given in (1) be to the effect that the European
Commission either has no powers in the Galatz-Braila sector, or has not in
that sector the same powers as in the sector below Galatz, at what exact
point shall the line of demarcation between the two regimes be fixed?
The aforementioned Governments are invited to afford the Court all the
assistance which it may require in the consideration of the questions hereby
submitted.
The Council authorizes the Secretary-General to present the present Request
to the Court, together with the letter from the Chairman of the Advisory and
Technical Committee for Communications and Transit, the text of the
Agreement between the Governments and all other relevant documents, to give
any assistance required in the examination of the questions and, if
necessary, to take steps to be represented before the Court." [p8]
[2] In pursuance of this Resolution, the Secretary-General of the League of
Nations, on December 18th, 1926, submitted to the Court a Request for an
advisory opinion in the following terms:
"The Secretary-General of the League of Nations, in pursuance of the Council
Resolution of December 9th, 1926, and in virtue of the authorization given
by the Council, has the honour to submit to the Permanent Court of
International Justice an application requesting the Court, in accordance
with Article 14 of the Covenant, to give an advisory opinion to the Council
on the questions which are referred to the Court by the Resolution of
December 9th, 1926.
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of this matter, and will, if necessary,
arrange to be represented before the Court.�
[3] The Agreement mentioned in the Council Resolution as transmitted to the
Registrar of the Court, is given below:
[Translation.]
"The undersigned M. Charles-Roux, Mr. Baldwin, M. Rossetti and M. Contzesco,
representatives of France, Great Britain, Italy and Roumania, duly
authorized by their Governments, have noted that difficulties have arisen
between France, Great Britain and Italy on the one hand, and Roumania on the
other, in connection with the competence of the European Commission of the
Danube, and that the British Government has been of opinion that these
difficulties constitute a dispute bearing upon the application of Articles
346, 348 and 349 of the Treaty of Versailles, and has laid the matter before
the Advisory and Technical Committee for Communications and Transit of the
League of Nations by a letter dated September 6th, 1924, according to the
procedure provided for in Article 7 of the Rules for Organization adopted at
Barcelona on April 6th, 1921, and basing its action on Article 376 of the
Treaty of Versailles, and on the Resolution of the Assembly of the League of
Nations dated December 19th, 1920, and that the Governments of France and
Italy have associated themselves with Great Britain in this procedure. They
have noted, on the other hand, that the Roumanian Government has disputed
the fact that these difficulties constitute a dispute which could bring into
operation the said procedure and has denied the competence of the Advisory
and Technical Committee as laid down in the above-mentioned texts, but has
made no objection to an examination of the difficulties which have [p9]
arisen or to any attempt at conciliation through the Advisory Committee.
The report of the Special Committee which was instructed by the Advisory and
Technical Committee to examine the question has been laid before the
undersigned Representatives in accordance with a Resolution of the Advisory
and Technical Committee, dated July 28th, 1925.
They are desirous of removing the difficulties which have arisen between
their Governments.
Accordingly, in view of Part X of the said Report,
and without prejudice to the negotiations at present proceeding between them
for that purpose,
the undersigned Representatives agree to the following:
Single Article.
The Governments of France, Great Britain, Italy and Roumania request the
Council of the League of Nations to submit the following three questions to
the Permanent Court of International Justice for an opinion:
(1) Under the law at present in force, has the European Commission of the
Danube the same powers on the maritime sector of the Danube from Galatz to
Braila as on the sector below Galatz? If it has not the same powers, does it
possess powers of any kind? If so, what are these powers? How far upstream
do they extend?
(2) Should the European Commission of the Danube possess either the same
powers on the Galatz-Braila sector as on the sector below Galatz, or certain
powers, do those powers extend over one or more zones, territorially defined
and corresponding to all or part of the navigable channel to the exclusion
of other zones territorially denned, and corresponding to harbour zones
subject to the exclusive competence of the Roumanian authorities? If so,
according to what criteria shall the line of demarcation be fixed as between
territorial zones placed under the competence of the European Commission and
zones placed under the competence of the Roumanian authorities? If the
contrary is the case, on what non-territorial basis is the exact dividing
line between the respective competences of the European Commission of the
Danube and of the Roumanian authorities to be fixed?
(3) Should the reply given to (1) be to the effect that the European
Commission either has no powers in the Galatz-Braila sector, or has not in
that sector the same powers as in the sector below Galatz, at what exact
point shall the line of demarcation between the two regimes be fixed?" [p10]
[4] In conformity with Article 73, paragraph 1, of the Rules of Court, the
Request was communicated to Members of the League of Nations and to States
entitled to appear before the Court. At the same time, the Registrar sent to
the British, French, Italian and Roumanian Governments, being regarded as
the Governments of States likely � in accordance with the terms of Article
73, paragraph 2, of the Rules � to be able to furnish information on the
questions upon which the Court's opinion was asked, a special and direct
communication to the effect that the Court was prepared to receive from them
written statements and, if necessary, to hear oral statements made on their
behalf at a public hearing to be held for the purpose.
[5] The time for the submission of any written statements, which was first
fixed to expire on March 6th, 1927, was subsequently extended, at the
request of the interested Governments, until April 12th, 1927. On that date,
Memorials had been filed by the British, French and Roumanian Governments.
[6] The British Government having, on receipt of these documents, asked
permission to present a Reply to the Roumanian Government's Memorial, this
request was granted, and at the same time the other Governments were
informed that they also might submit replies. The time allowed for the
submission of replies was fixed to expire on May 31st, 1927. At the request
of the Roumanian Government, this time was, however, successively extended,
first until June 17th, then till August 1st, and lastly until September
15th, 1927, this latter date being regarded as final and absolute. Before
the expiration of the time allowed, Replies or Counter-Memorials had been
filed by the British, Italian and Roumanian Governments.
[7] The Court, in the course of public sittings held on October 6th, 7th,
8th and 10th, 11th, 12th and 13th, 1927, heard oral arguments by Sir Douglas
Hogg, Attorney-General, on behalf of Great Britain, Professor Basdevant, on
behalf of France, and M. Rossetti, Minister plenipotentiary, on behalf of
Italy; and by M. Contzesco, Minister plenipotentiary, Professor de Visscher,
M. Politis, former Minister for Foreign Affairs of Greece, and Me Millerand,
former President of the French Republic, on behalf of Roumania. [p11]
[8] In addition to the documents submitted by the interested Governments,
the Court has had before it documents communicated by the Secretary-General
of the League of Nations with the Council's Request for an opinion, and also
additional documents and information collected by the Registry (see list in
the Annex).
***
[9] Before undertaking the examination of the questions set out in the
Resolution of the Council of the League of Nations of December 9th, 1926,
the Court considers that it should recall the circumstances in which the
Council was led to ask for an advisory opinion on these questions.
*
[10] Under the Treaty of Paris of March 30th, 1856, by which the European
Commission of the Danube was established, the powers of the Commission
extended over the river from its mouths in the Black Sea up to Isaktcha,
and, in order to assure the work of the Commission, each of the contracting
Powers had the right to station two light vessels of war at the mouths of
the river. The powers of the European Commission, the mandate of which was,
under the Treaty of 1856, to last only for two years, were successively
extended by decisions of Conferences held in 1858 and 1866 at Paris and in
1871 in London, the last prolongation being for a period of twelve years. By
the Treaty of Berlin of July 13th, 1878, the powers of the Commission were
extended to Galatz, and it was expressly stipulated that the light
men-of-war might ascend the river to that point. On March 10th, 1883, the
Parties to the Treaty of Berlin signed at London a Treaty dealing with the
entire internationalized Danube, including the so-called maritime Danube,
and by Article 1 of this Treaty the jurisdiction of the European Commission
was extended from Galatz to Braila. Roumania did not sign this Treaty, or
take part in the Conference by which it was drawn up, the Conference having
refused to admit her delegates except in a consultative capacity. [p12]
[11] From that time dates the uncertain situation in regard to the powers of
the European Commission of the Danube on the sector of the Danube between
Galatz and Braila, which ultimately led to the request for the present
Opinion.
[12] Before the war of 1914-1918, nothing was done, once and for all, to
clear up this situation; one merely applied a sort of unwritten modus
vivendi which was based on the circumstances and which made it possible to
reduce within more or less narrow limits the disadvantages resulting
therefrom.
[13] After the war, in spite of efforts made at the time of the Peace
Conference to arrive at a definite and final solution of the question of the
territorial extent of the authority of the European Commission, all that was
done was to re-establish the situation which had developed before the war.
The Treaty of Versailles, in fact, indicates as the point where the
respective jurisdictions of the International Commission (of the upper or
fluvial Danube), set up under the terms of that Treaty, and the European
Commission (of the Lower or maritime Danube) meet, the point where the
authority of the latter ceases, thus referring to the status quo ante. And
the Statute of the Danube now in force, which was prepared in 1921 under the
provisions of the Treaty of Versailles and the corresponding provisions of
the other Peace Treaties, for its part fixes this point as the downstream
limit of the authority of the International Commission, which limit the
Statute places at Braila; but this provision is subject to a reserve in
favour of the status quo ante.
[14] The true meaning and effect of that reserve will be discussed by the
Court later on, but it may be mentioned already in this connection that,
during the Conference for the preparation of the said Statute, there was
drawn up by the delegates who were at the same time members of the European
Commission, a Protocol for the purpose of stating their interpretation of
the provision in question. But this Protocol, which was annexed to the
minutes of a meeting of the Conference, itself gave rise to differences of
opinion both in regard to its value in law and to the construction to be
placed upon it. [p13]
[15] It was during this Conference, held at Paris in 1920 and 1921, that the
question of the powers of the European Commission of the Danube between
Galatz and Braila first materialized. A newly appointed Inspector of
Navigation asked the European Commission, in November, 1920, for
instructions as to what powers he could exercise in this sector. His
request, however, seems to have received, as sole answer, a recommendation
for the time being to abstain from exercising jurisdictional powers there.
[16] A year later, the same question was once more raised before the
Commission, as the result of a collision in the port of Galatz, in
connection with which the Inspector of Navigation had exercised police and
jurisdictional powers. According to the Roumanian delegate on the
Commission, the action of the Inspector was unwarranted and contrary to the
international agreements. The British, French and Italian delegates, whilst
disputing this view, asked for the adjournment of the question in order that
it might be subjected in the meantime to careful consideration. And the
Commission only decided that, until the question of jurisdiction between
Galatz and Braila was decided, " . . . . the Inspector of Navigation should
take no action . . . but the Commission would reserve its rights by
protesting whenever the Roumanian authorities took action"; it was also
agreed "that by proceeding thus the final settlement of the matter would be
in no way prejudiced".
[17] The question was again adjourned in May, 1922, and was only taken up
afresh in October of that year. On that occasion, the Roumanian delegate
explained in detail his point of view. A discussion ensued, in the course of
which the British delegate observed that three problems arose, in regard to
(1) the situation of fact existing before the war between Galatz and Braila,
(2) the possibility of separating in practice compulsory pilotage and
jurisdiction, and (3) the downstream limit of the disputed Galatz-Braila
sector. The Roumanian delegate, at the conclusion of the discussion,
submitted a proposal for a provisional agreement to be concluded between the
Roumanian Government and the European Commission, which proposal was
subsequently to form the [p14] basis of an attempt to draw up a modus
vivendi, to be applied on the sector in question, pending a final
settlement. It was, in fact, found possible to draw up a text, in which
however the question of the point on the river where the full jurisdiction
of the European Commission would begin (the point below Braila where the
modus vivendi would cease to apply) was reserved; moreover, a difference of
opinion soon arose between the Roumanian delegate and his colleagues as to
the wording, in regard to an important point, of the text actually adopted.
A compromise was ultimately reached in regard to the upstream limit of the
jurisdiction of the European Commission; and the text thus completed was
submitted to the Roumanian Government as a proposed definitive arrangement.
[18] That Government gave its reply in October, 1923. Meanwhile the
Roumanian delegate had again raised the question of the limits of
jurisdiction, but the Commission had decided to maintain its offer of 1922
as it stood. The Roumanian reply, though in principle favourable,
nevertheless made Rou-mania's acceptance of the proposed arrangement
conditional upon the fixing of an upstream limit other than that
contemplated in the proposed arrangement. The attempt to reconcile the
opposing views was wrecked on this shoal; the delegates of the other Powers
reserved their reply, which was not even given at the session held by the
Commission in October, 1924. On that occasion, on the contrary, they
informed their Roumanian colleague that the question, which otherwise seemed
insoluble, would be referred to the League of Nations.
[19] In the course of the preceding month, in fact, the British Government �
with which the French and Italian Governments soon associated themselves �,
embarking on a new course, had presented to the Secretary-General of the
League of Nations, on September 6th, 1924, a request to the effect that the
following question should, in accordance with the relevant provisions of the
international agreements in force, be submitted to the Advisory and
Technical Committee for Communications and Transit of the League of Nations:
"The dispute which has arisen between Great Britain, France and Italy, on
the one hand, and Roumania on the other, with regard to the application of
Articles 346, 348 and 349 of the Treaty of Versailles as to the question of
the limits of the jurisdiction of the European Commission of the Danube."
[p15]
[20] The request, which relied on Article 376 of the Treaty of Versailles,
on the Resolution of the Assembly of the League of Nations of December 9th,
1920, and on Article 7 of the Rules for the organization of the said
Committee, was accompanied by an explanatory memorandum, which defined the
difference of opinion in question as follows:
"The Roumanian Government, denying the claim of the Commission to apply its
navigation regulations or to take cognizance of cases of their infraction in
the navigable channel between Galatz and Braila, further contends that the
jurisdiction of the Commission should cease at a point six and a half
nautical miles below Galatz where the river Pruth joins the Danube. It
declares that the authority of the Port Captain of Galatz extends to that
point, and it has produced a plan on which the eventual extension of the
port to the mouth of the Pruth is foreshadowed. It also lays down as a
general principle that, where a port exists, both banks of the river and the
intervening navigable channel must be considered to be within its limits.
Neither the British, French, nor Italian Commissioners have accepted this
point of view, and the Commission is unable to come to agreement on this
matter."
[21] Article 376 of the Treaty of Versailles provides that disputes are to
be settled "as provided by the League of Nations". The Assembly Resolution
of December 9th, 1920, entrusts the Advisory and Technical Committee with
the task of "adjusting such disputes by conciliation between the Parties"
before recourse is had to the Permanent Court of International Justice.
Finally, Article 7 of the Rules of Organization of the Committee contains,
amongst others, provisions to the following effect: Before proceeding with
any enquiry, the Committee is to communicate with the governments concerned,
forward to them the request and invite them to submit any observations which
they consider suitable. If no satisfactory reply is received within the time
fixed, the Advisory Committee may appoint a committee of enquiry with
instructions to investigate the question and submit a report. When this
report has been received and considered, the Advisory Committee, with a view
to arriving at a settlement, will give a reasoned opinion which it will
communicate to the Parties concerned.
[22] The question which the British Government had brought to the notice of
the Secretary-General of the League of Nations [p16] was placed on the
agenda of the session held by the Advisory and Technical Committee in
November, 1924. At the first meeting, the President announced that "the
Roumanian Government's definitive reply" � doubtless to a communication made
to it in accordance with the above-mentioned provisions of the Rules of
Organization � had not yet arrived, and that the Roumanian delegate was
unable for reasons of health to be present at the meetings of the Committee,
which in these circumstances decided to adjourn the question and to instruct
the Bureau to appoint a committee of enquiry to examine it.
[23] The Committee of Enquiry, which was in this case known as the "Special
Committee for the question of the Jurisdiction of the European Commission of
the Danube", was duly appointed. The Committee consisted of MM. Burckhardt,
Chairman (Switzerland), Hostie (Belgium), and Kr�ller (Netherlands).
[24] After having in the course of its first two sessions � held in February
and in March-April, 1925 � heard the question argued before it by the
representatives of the interested Governments, the Special Committee
proceeded in the early summer of 1925 to visit the locality, in order there
to investigate the question which it had been asked to elucidate. The
representatives of Roumania before the Committee always made their
statements for information only, the Roumanian Government denying the very
existence of a dispute between it and the other Governments represented on
the European Commission, and also the jurisdiction of the organizations of
the League to deal with the questions referred to.
[25] During its visit to Roumania, the Committee consulted the records of
the cases in which jurisdiction had been exercised upon the Lower Danube and
in the ports of the maritime Danube by the agents of the European Commission
and by the Roumanian authorities. It also visited the sector from Galatz to
Sulina and went by boat from Galatz to Braila. Meantime, it heard the
evidence of several officials and pilots of the European Commission, of the
Roumanian Inspector-General of ports, of the captains of the ports of Galatz
and Braila, of former captains of the port of Galatz, and of representatives
of Roumanian circles interested in shipping on the Danube. [p17]
[26] On the basis of all the data thus collected, the Committee, on July
2nd, 1925, submitted its report to the Advisory and Technical Committee.
This report, the main portions of which are devoted to an historical study
of the regime of the Lower Danube, and, above all, to a survey designed to
establish what the legal position was at the time of the enquiry in regard
to the questions forming the subject of the dispute referred to the Advisory
Committee, concluded with a series of conciliation proposals.
[27] The results of the historical and legal researches undertaken by the
Special Committee may be summarized as follows: The provisions of the
Definitive Statute of 1921 � supplemented if necessary by the provisions of
the Convention on the regime of navigable waterways of international concern
adopted at Barcelona in the same year � suffice as a source for ascertaining
the present legal position of the maritime Danube from the point of view of
the powers of the European Commission. An examination of the Definitive
Statute leads to the conclusion that the powers of the Commission are to be
exercised from Galatz to above Braila, under the same de facto conditions as
before the war. These conditions are not, in the opinion of the Committee,
determined by the clause of the Treaty of London of 1883 extending the
authority of the Commission to Braila, because that clause was not amongst
those in force before 1914, but by usage having juridical force simply
because it has grown up and been consistently applied with the unanimous
consent of all the States concerned. Now, in the view of the Committee, the
pre-war usage in the Galatz-Braila sector was that jurisdictional powers
were exercised there by the European Commission. In this usage the Roumanian
delegate tacitly but formally acquiesced, in the sense that a modus vivendi
was observed on both sides according to which the sphere of action of the
Commission in fact extended in all respects as far as above Braila. As
regards the ports, the Committee considers that the dividing lime between
the jurisdiction of the national authorities and that of the international
authority must be, not a definite territorial limit but a functional
division.
[28] In view of the conclusions at which the Committee had arrived [p18] on
the foregoing questions, it considered that the subsidiary-question of the
downstream limit of the port of Galatz did not arise.
[29] The Advisory and Technical Committee considered the report of its
Special Committee at the session held at Geneva in July, 1925. The report
was criticized by the Roumanian representatives, who at the same time took
objection to some of the "conciliation proposals" made by the Committee.
[30] The Advisory and Technical Committee on this occasion adopted the
following resolutions amongst others:
"II. � The Advisory and Technical Committee, having been apprised by a
letter from the British Government dated September 6th, 1924, of the dispute
concerning the jurisdiction of the European Commission of the Danube;
Having taken note of the report of the Special Committee appointed to
examine this question;
Is of opinion that, as regards the question of competence raised by the
Roumanian Government, it is neither necessary nor opportune, for the reasons
set out in the above-mentioned report, for the Committee to give a decision
on this point;
And, as regards the substantial issues involved, is of opinion:
(a) That, in conformity with the conclusions of the Committee's report, the
jurisdiction of the European Commission of the Danube extends from Galatz to
above Braila under the same conditions as from the sea to Galatz;
(b) That, consequently, the question of fixing a point below Galatz cannot
be taken into consideration;
(c) That the distinction between the competence of the European Commission
of the Danube and that of the Roumanian authority, which is exercised over
the ports, cannot be drawn on the basis of a geographical boundary, but that
it should be founded on the distinction which exists between questions of
navigation and port questions, in accordance with the principles laid down
in the Committee's report.
III. � The Advisory and Technical Committee for Communications and Transit;
Having taken note of the suggestions contained in the tenth part of the
report of the Special Committee;
And considering that these suggestions, which have been framed with a view
to conciliation, are in keeping with the conception which it has always
entertained of the nature of its duties, and are calculated to ensure the
fullest co-operation between the States concerned; [p19]
Invites the Governments Parties to the dispute to give their most favourable
consideration to these suggestions, in case the Statute of the Danube should
be partially revised; and, in order to assist them in this examination,
which it confidently expects will give satisfactory results, it authorizes
the Chairman of the Advisory and Technical Committee to take steps, later
on, if he thinks it desirable, for the convening of a meeting of the members
of the Special Committee and of the delegates on the European Commission of
the Danube."
[31] Before the adoption of these resolutions, the Roumanian delegates, on
behalf of their Government, had stated that in their opinion any resolutions
adopted would not be binding upon Roumania. It should be observed in regard
to this point that, according to the actual terms of the Special Committee's
report, in the event of the failure of conciliation, Roumania's right,
should she so desire, to bring the question of jurisdiction before the
Permanent Court of International Justice, would remain intact.
[32] In conformity with the last part of the resolution of the Advisory and
Technical Committee, M. Burckhardt called together in conference the members
of the Special Committee and those of the European Commission. Four
sessions, the records of which are not before the Court, seem to have been
held, the first in September, 1925, and the last in February, 1927. As a
result of the first session, a report dated September 17th, 1925, was made
to the Advisory and Technical Committee. This report provided for a further
conference in the first quarter of 1926, at which date � it was considered �
the result of certain direct negotiations between the Governments concerned
might be submitted to the Committee. The report went on as follows:
"In order that the complicated negotiations which will be necessary may be
carried on in an atmosphere of conciliation, it is, in the opinion of the
Committee, very desirable that the four Governments should, at the beginning
of the fresh exchange of views, in any case unanimously declare that, if
they cannot come to an agreement regarding the conditions of revision, or
if, for any reasons beyond their control, this revision does not take place
within a certain time-limit, they are prepared to submit the dispute
concerning which the Advisory and Technical Committee has pronounced its
decision to the Permanent Court of International Justice. It would be
understood that, if the Governments [p20] agreed ultimately to submit this
dispute to the Court, the present provisional regime would not be made a
subject of discussion, pending the decision of the Court."
[33] An account of the third conference between the Special Committee and
the delegates of the European Commission has also been communicated to the
Court in the form of a letter from the President of that Committee to the
President of the Advisory and Technical Committee; the Court also has before
it the text of certain statements made by the Roumanian delegate at this
conference. M. Burckhardt's letter, dated September 25th, 1926, states that
it was found impossible to agree on the texts prepared by the Committee,
because the Roumanian delegate said that he was unable to accept these texts
in their entirety. The letter continues as follows:
"After discussion, the representatives of France, Great Britain, Italy and
Roumania on the European Commission of the Danube signed an Agreement
requesting the Council to submit to the Permanent Court of International
Justice, for an advisory opinion, the questions enumerated in that Agreement
relative to the jurisdiction of the European Commission of the Danube."
[34] The Agreement in question is that reproduced at the beginning of this
Opinion.
[35] M. Burckhardt in his letter also says that
"the British, French and Italian representatives, on the one hand, and the
Roumanian representative on the other .... have signed a Protocol.... in
which they make a statement as to the period within which the conciliation
procedure, instituted in virtue of paragraph III of the resolution adopted
by the Advisory and Technical Committee on July 30th, 1925, may be
continued".
[36] The essential passage of this Protocol is as follows:
"If, within a period of six months as from the date on which the Permanent
Court of International Justice shall have given its opinion, the procedure
of conciliation adopted in virtue of paragraph III of the Resolution of the
Advisory and Technical Committee for Communications and Transit of the
League of Nations dated July 30th, 1925, has led to no result, the procedure
shall be considered as closed."
[37] On the other hand, it appears from the statements of M. Contzesco, to
which allusion has just been made, that the [p21] course of obtaining an
advisory opinion from the Court was only an alternative to a proposal for
the bringing of the case before the Court "for judgment"; this proposal was
rejected by the Roumanian delegate, whose Government had definitely refused
to acknowledge the Court's jurisdiction. That Government could only go
before that tribunal with the other Governments represented on the European
Commission of the Danube � who appeared to it to have made up their minds in
any case to bring the dispute before the Court � if the matter was submitted
merely "for an advisory opinion", since
"notwithstanding the great respect due to an opinion" given by the Permanent
Court, having regard to the special nature of the questions which would be
submitted to it.... an opinion of this kind could not, in so far as the
Roumanian Government was concerned, have any other significance or legal
effects".
[38] When signing the Agreement to have recourse to the Court for an
advisory opinion, the Roumanian delegate made certain conditions, one of
which was as follows:
"That a fixed period should be agreed upon during which the negotiations
should be regarded as in progress; that once that time has expired, the
Court's advisory opinion having been given and the negotiations having led
to no result, the latter should be regarded as to all intents and purposes
terminated, and the four Governments should reassume entire liberty of
action."
[39] The intention which, according to M. Contzesco's statement, had been
manifested by the French, British and Italian delegates "in any case to
bring the dispute before the Court" was subsequently confirmed by the
British and French Governments, both in the Memorials submitted to the Court
on their behalf and in the statements made before it orally by their
representatives.
[40] The President of the Advisory and Technical Committee transmitted, on
September 25th, 1926, to the Secretary-General of the League of Nations, the
Agreement signed by the delegates upon the European Commission on the
preceding September 18th; the Secretary-General, in due course, brought it
to the notice of the Council of the League; whereupon the Council adopted
the above-mentioned Resolution of December 9th, 1926. [p22]
***
A. Question No. 1
I. [Does the European Commission of the Danube Have the Same Powers on the
Maritime Sector of the Danube from Galatz to Braila as on the Sector Below
Galatz]
[41] The first question submitted to the Court reads as follows:
"Under the law at present in force, has the European Commission of the
Danube the same powers on the maritime sector of the Danube from Galatz to
Braila as on the sector below Galatz? If it has not the same powers, does it
possess powers of any kind? If so, what are these powers? How far upstream
do they extend?"
[42] By the very terms of the submission, the question must be answered
according to "the law at present in force".
[43] In ascertaining what the law is, the first source to be consulted is
the "Convention establishing the Definitive Statute of the Danube". This
Convention, which will hereafter be called the Definitive Statute, was made
in pursuance of Article 349 of the Treaty of Peace of Versailles (and of the
corresponding articles of the other Peace Treaties concluded in 1919 and
1920), which provided that the regime for the Danube should be laid down by
a conference of the Powers nominated by the Allied and Associated Powers,
that this conference should meet within a year after the Treaty came into
force, and that representatives of Germany (Austria, Bulgaria and Hungary)
might be present, these Powers having agreed to accept the regime which the
Conference should lay down. The Conference met at Paris in 1920, and the
Definitive Statute was signed on July 23rd, 1921. The signatories are
Belgium, France, Great Britain, Greece, Italy, Roumania, the
Serb-Croat-Slovene State, Czechoslovakia, Germany, Austria, Bulgaria and
Hungary, thus embracing all the Parties to the present proceeding. The
deposit of the ratifications of all the contracting Parties having been
completed on June 30th, [p23] 1922, the Statute by its terms became
effective on October 1st, 1922; and, as the latest and most comprehensive
statement of the law relating to the internationalized Danube, it
preeminently represents the law now in force on that subject.
[44] The Definitive Statute, however, is not complete in itself; on the
contrary, many of its articles refer to previous international engagements,
and Article 41 expressly provides that all treaties, conventions, acts and
agreements relative to international waterways generally, and particularly
to the Danube and its mouths, which were in force when the Statute was
signed, are maintained in all their stipulations not abrogated or modified
by the Statute itself.
[45] In the course of the present dispute, there has been much discussion as
to whether the Conference which framed the Definitive Statute had authority
to make any provisions modifying either the composition or the powers and
functions of the European Commission, as laid down in the Treaty of
Versailles, and as to whether the meaning and the scope of the relevant
provisions of both the Treaty of Versailles and the Definitive Statute are
the same or not. But in the opinion of the Court, as all the Governments
concerned in the present dispute have signed and ratified both the Treaty of
Versailles and the Definitive Statute, they cannot, as between themselves,
contend that some of its provisions are void as being outside the mandate
given to the Danube Conference under Article 349 of the Treaty of
Versailles.
[46] The Definitive Statute, after reciting (Article 1) that the navigation
of the Danube shall be free and open to all flags under conditions of
complete equality on the entire navigable course of the river between Ulm
and the Black Sea, expressly declares in Article 3 that the freedom of
navigation and the equality of flags shall be assured by two distinct
Commissions, namely, (1) the European Commission of the Danube, whose
jurisdiction (competence), as it is determined in Chapter II, extends over
the part of the river called the maritime Danube, and (2) the International
Commission of the Danube, whose jurisdiction (competence), as it is
determined in Chapter III, [p24] extends over the navigable fluvial Danube,
and certain other waterways.
[47] Chapter II of the Definitive Statute, which is entitled "Maritime
Danube" (Danube maritime), consists of four articles numbered 4 to 7,
inclusive.
[48] By Article 4, the European Commission is provisionally composed of
representatives of France, Great Britain, Italy and Roumania, each Power
having one delegate, but provision is made for the admission by unanimous
consent of a delegate of any European State which may in future show that it
has sufficient commercial, maritime and European interests at the mouths of
the Danube to justify such a step.
[49] By Article 7, the powers of the European Commission may come to an end
only by virtue of an international arrangement (arrangement international)
concluded by all the States represented on the Commission, and the legal
seat of the Commission remains at Galatz.
[50] The relevant articles for the purposes of the present submission are
Articles 5 and 6, which read as follows [FN1]:
Article 5.
"La Commission europ�enne exerce les pouvoirs qu'elle avait avant la guerre.
Il n'est rien chang� aux droits, attributions et immunit�s qu'elle tient des
trait�s, conventions, actes et arrangements internationaux relatifs au
Danube et � ses embouchures."
Article 6.
"La comp�tence de la Commission europ�enne s'�tend, dans les m�mes
conditions que par le pass� et sans aucune modification � ses limites
actuelles, sur le Danube maritime, c'est-�-dire depuis les embouchures du
fleuve jusqu'au point o� commence la comp�tence de la Commission
internationale." [p25]
---------------------------------------------------------------------------------------------------------------------
[FN1] [English translation from the Treaty Series, L. of N.]
Article 5 : "The European Commission retains the powers which it possessed
before the war. No alteration is made in the rights, prerogatives and
privi�leges which it possesses in virtue of the treaties, conventions,
international acts and agreements relative to the Danube and its mouths."
Article 6 : "The authority of the European Commission extends, under the
same conditions as before, and without any modification of its existing
limits, over the maritime Danube, that is to say, from the mouths of the
river to the point where the "authority of the International Commission
commences."
---------------------------------------------------------------------------------------------------------------------
[51] Article 6 thus specifically declares that the jurisdiction of the
European Commission extends to the point at which the jurisdiction of the
International Commission begins, and in Chapter III of the Definitive
Statute, entitled "Fluvial Danube" (Danube fluvial), Article 9 provides that
the jurisdiction (competence) of the International Commission extends over
the part of the Danube between Ulm and Braila (entre Ulm et Braila).
[52] The jurisdiction of the International Commission applies further to the
reseau fluvial mentioned in Article 2 of the Statute, but it cannot be
extended to any other waterway except by an unanimous resolution of the
International Commission. The jurisdiction of the International Commission
cannot, therefore, by implication be extended to cover alleged gaps which
would have been left in that of the European Commission.
[53] It is thus precisely determined, in connection with Article 6, that the
jurisdiction of the European Commission extends from the mouths of the river
to Braila. By the foregoing provisions, and particularly by Articles 3, 6
and 9, the Definitive Statute obviously assures the internationalization, by
means of the two Commissions, of the entire course of the river,
uninterruptedly from Ulm to the Black Sea.
[54] On the face of the provisions of Articles 5 and 6, whilst Article 6
deals with the territorial extent of the powers of the European Commission
(competence territoriale), Article 5 refers to the nature and scope of the
said powers (competence materielle).
[55] Article 5, however, does not define directly what the powers of the
European Commission are; it only says that the Commission retains the powers
which it possessed before the war, and that no alteration is made in the
rights, prerogatives and privileges which it has under the treaties,
conventions, international acts and agreements relative to the Danube and
its mouths.
[56] It is to be inferred from Article 5 that, unless there is some special
provision to the contrary, all the powers conferred upon the European
Commission by the treaties, conventions, international acts and agreements
referred to in the said [p26] article extend over the sector of the Danube
over which, by virtue of the combined effect of Articles 6 and 9, the
authority of the European Commission clearly extends.
[57] Such a special provision might be looked for in the intermediate clause
of Article 6, according to which the authority of the European Commission is
to extend over the above-mentioned area under the same conditions as before,
and without any modification of its existing limits (dans les mimes
conditions que par le passe et sans aucune modification a ses limites
actuelles).
[58] These words may be interpreted as leaving it open to show that the
jurisdiction of the European Commission, extending over the maritime Danube
from the mouths to the point where the jurisdiction of the International
Commission begins, was not exercised in the same way in all places; and as
it is admitted that the Commission possesses all its powers in the sector
from the sea up to Galatz, the words dans les mimes conditions que par le
passe et sans aucune modification a ses limites actuelles would only have
the effect of reserving the possibility that some of the powers of the
Commission do not extend from Galatz up to the point where the jurisdiction
of the International Commission commences.
[59] It is important to lay stress on the fact that the text not only does,
not say what are the powers of the European Commission which would not
extend over the sector Galatz-Braila, but that it does not even affirm that
there are powers so limited. The effect of ' the provision is simply this:
if there are powers of the European Commission the territorial extent of
which is more restricted than the territorial extent of other powers, the
existing limits shall be maintained.
[60] The question thus arises whether the "same conditions as before" and
the "existing limits" referred to in Article 6 are such conditions and
limits as may be inferred from rules of law or conditions and limits which
existed in fact before the war.
[61] In this connection, it should first of all be observed that if Article
6 should be construed as referring solely to legal arrangements, these would
include, among other things, Article 1 of the Treaty of London of 1883,
according to which [p27] the exercise of the powers of the Commission is
extended from Galatz to Braila. Roumania did not sign or ratify this Treaty.
But to assume that for this reason the European Commission possesses no
powers at all on the sector above Galatz is not consistent with the
Definitive Statute, which fixes the territorial extent of the powers of the
Commission from the mouths of the river to the point where the authority of
the International Commission commences, and therefore excludes the
possibility that no powers whatever exist between Galatz and Braila.
[62] It may also be observed that, according to the record before the Court,
it has been contended that the Definitive Statute was so framed as to
perpetuate the divergence of views which had arisen under Article 1 of the
Treaty of London between the States represented on the European Commission.
This contention cannot however be accepted, because it would amount to the
maintenance over the Danube system of an uncertain and precarious situation.
[63] On the other hand, it is quite reasonable to suppose that the
controversy was settled on the basis of the status quo ante helium. The
Treaty of London and the divergence of views concerning its validity had not
prevented the European Commission from accomplishing its task. In the long
period of time that has elapsed since the conclusion of the Treaty of
London, matters had continued in a more or less satisfactory way, and no one
denied that the European Commission had exercised some powers on the sector
from Galatz to Braila, no matter what the legal ground and nature of these
powers may have been. In these circumstances, the confirmation of the
jurisdiction of the European Commission, as it was exercised before the war
in the contested sector of the Danube, might easily have appeared to be the
best possible solution of the difficulty. It may be added that the
restoration of the status quo ante helium was one of the leading principles
of the provisions of the Treaty of Versailles concerning the Danube as well
as of those of the Definitive Statute.
[64] The Court therefore has arrived at the conclusion that the words "under
the same conditions as before and without any [p28] modification of its
existing limits" in Article 6 of the Definitive Statute, refer to the
conditions which existed in fact before the war in the contested sector, and
that their effect is to maintain and confirm these conditions, thus putting
an end to the questions which had arisen under Article 1 of the Treaty of
London.
[65] Before entering upon the analysis of the contentions of the Governments
concerned, the Court observes that the view which it has just developed as
to the purport of the Definitive Statute is based solely on the language
employed in the Statute and on the historical facts upon which it rests,
without any reference to preliminary discussions or drafts. The Court
adheres to the rule applied in its previous decisions that there is no
occasion to have regard to the protocols of the conference at which a
convention was negotiated in order to construe a text which is sufficiently
clear in itself. If, however, some doubt could still remain upon the true
meaning of the words dans les mimes conditions que par le passe et sans
aucune modification a ses limites actuelles, it will be shown later on that
the preparatory work fully confirms the conclusion at which the Court has
now arrived.
*
[66] France, Great Britain and Italy contend that all the powers of the
Commission apply in the same way on the Galatz-Braila sector of the river as
they do on the sector below Galatz.
[67] Roumania's contention is, broadly speaking, that, from the mouths of
the river to Galatz, the European Commission possesses all the rights
conferred upon it by treaties, conventions, international acts and
agreements, and that from Galatz to Braila the European Commission only
possesses what she describes as "technical powers" (competence technique),
i.e. the power of keeping the 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" (competence juridique),
i.e. especially the power of enforcing regulations. [p29]
[68] The chief arguments advanced by the Roumanian Government in support of
this contention may be grouped under the following heads:
(1) the genesis of Article 6 of the Definitive Statute;
(2) the so-called Protocole interpretatif and the draft modus vivendi of
1922;
(3) arguments based on the principle of sovereignty.
[69] The Roumanian Government maintains that the meaning of the words "dans
les memes conditions que par le passe et sans aucune modification a ses
limites actuelles" in Article 6 should be determined in the light of the
elaboration of the Definitive Statute. Thus it states that, according to the
preparatory work, Article 6 is only a new form of a draft, adopted by the
Conference at the first reading, from the terms of which it followed that
between Galatz and Braila the European Commission was to have technical
powers (competence technique) only, and not juridical powers. The facts may
be summarized as follows.
[70] In the draft Convention presented by the French delegation at the
opening of the Conference, the relevant provision, numbered as Article 6,
was to the following effect [FN1]:
"La juridiction de ladite Commission [pCommission europ�enne] s'�tend, comme
il est dit � l'article 4, sur toute la partie du fleuve accessible aux
navires de haute mer, c'est-�-dire de Bra�la � la mer Noire."
---------------------------------------------------------------------------------------------------------------------
[FN1] [ Translation by the Registry.]
"The jurisdiction of the said [European] Commission extends, as provided in
Article 4, over all that portion of the river that is accessible to
sea-going vessels, that is to say from Braila to the Black Sea."
---------------------------------------------------------------------------------------------------------------------
[71] Later on, after lengthy discussions concerning the maintenance of the
European Commission, its composition and powers, the French delegation
submitted a revised draft of Article 6 in the following terms [FN2]:
---------------------------------------------------------------------------------------------------------------------
[FN2] [Translation by the Registry.]
"The jurisdiction of the said Commission extends, as provided in Article 3,
over the maritime Danube, that is to say from the Black Sea to Galatz, the
ports on the river other than Sulina being excluded.
The technical competence of the Commission shall however extend, as
heretofore, over the navigable channel between Galatz and Braila, and shall
include the pilotage services."
---------------------------------------------------------------------------------------------------------------------
[p30]
"La juridiction de ladite Commission s'�tend, comme il est dit � l'article
3, sur le Danube maritime, c'est-�-dire de la mer Noire jusqu'� Galatz, �
l'exclusion des ports fluviaux autres que le port de Soulina.
Toutefois, la comp�tence technique de la Commission s'�tendra comme par le
pass� sur le chenal navigable entre Galatz et Bra�la. Le service du pilotage
reste compris dans cette comp�tence."
[72] Notwithstanding some objections raised by the German plenipotentiary to
this text, as being a modification of the pre-war powers of the Commission,
which were to be maintained under the Treaty of Versailles, the French draft
was adopted at the first reading.
[73] When Article 6 again came up for discussion, the President of the
Conference, who was the French plenipotentiary, called attention to the
objections which the German delegation had communicated in writing, to the
effect that the text, as adopted at the first reading, was inconsistent with
Article 347 of the Treaty of Versailles, because it left the Galatz-Braila
sector outside the authority of either the European or of the International
Commission. The President therefore proposed a new draft, which was, save
for a very slight modification, identical with the text now included in the
Definitive Statute as Article 6. On that occasion, the President, speaking
in his capacity as French plenipotentiary, expressly added that the
alteration introduced in the text was merely one of form and not of
substance. This declaration, however, is hardly consistent with the terms of
the text so proposed, if this text was intended to take into account the
observations made by the German delegation.
[74] It is to be observed that previously, at the second reading, the
following alternative text of Article 6 had been put forward by the
Roumanian delegation [FN1]:
"La comp�tence de ladite Commission s'�tend sur le Danube maritime,
c'est-�-dire depuis la mer Noire jusqu'au point o� [p31] commence la
comp�tence de la Commission internationale, � l'exclusion des ports fluviaux
autres que le port de Soulina.
Toutefois, entre Galatz et Bra�la, cette comp�tence doit �tre entendue comme
n'apportant, ni en fait ni en droit, la moindre modification � la situation
d'avant-guerre."
---------------------------------------------------------------------------------------------------------------------
[FN1] [ Translation by the Registry.']
The authority of the said Commission extends over the maritime Danube, that
is to say from the Black Sea to the point at which the authority of the
Internat�ional Commission commences, the ports on the river other than
Sulina being excluded.
However, between Galatz and Braila, this authority shall be understood as
involving no change whatever, in law or in fact, of the pre-war situation
---------------------------------------------------------------------------------------------------------------------
[75] This text does not mention any distinction between technical and
juridical powers, but refers generally to the situation which existed before
the war between Galatz and Braila. And when the Roumanian plenipotentiary
declared that he was prepared to accept the French text, he at the same time
made the proposal that the European Commission might be asked by the
President to define in a special protocol the exact extent of the powers
which it had exercised before the war, so as to avoid any misunderstanding
as to the true limits of its authority, which, though ending at the point
where the authority of the International Commission commenced, was not
exercised in the same manner between Galatz and the sea as between Galatz
and Braila.
[76] The Court must recall in this connection that preparatory work should
not be used for the purpose of changing the plain meaning of a text. The
Court in fact considers that, whatever may be the scope of the words "dans
les memes conditions que par le passe et sans aucune modification a ses
limites actuelles", it is impossible to construe this expression as meaning
that the European Commission possesses only technical powers between Galatz
and Braila. That expression might have this effect if, in fact, the European
Commission exercised only technical powers in the sector in question; but
the words in themselves clearly refer to the conditions which existed,
whatever they may have been, and not to a single and specific condition, as
Roumania contends.
[77] Moreover, the records of the preparation of the Definitive Statute do
not, in the opinion of the Court, furnish anything calculated to overrule
the construction indicated by the actual terms of Article 6.
[78] Obviously, the members of the Conference were not all well acquainted
with the situation which existed before the war between Galatz and Braila;
what they agreed upon was to maintain, in conformity with the Treaty of
Versailles, that [p32] situation whatever it may have been. It is also
important to remark that the Roumanian plenipotentiary himself referred to
the distinction between technical and juridical powers only because, in his
opinion, it coincided with the real situation in the sector Galatz-Braila
before the war.
[79] The history of the relevant articles of the Treaty of Peace of
Versailles has also been invoked on behalf of Roumania in this connection.
The record of the work preparatory to the adoption of these articles being
confidential and not having been placed before the Court by, or with the
consent of, the competent authority, the Court is not called upon to
consider to what extent it might have been possible for it to take this
preparatory work into account.
[80] (2) Roumania maintains that Article 6 of the Definitive Statute must be
read in connection with the so-called Protocole interpretatif and that, if
the article is so read, it clearly appears that the European Commission does
not possess juridical powers in the Galatz-Braila sector.
[81] This Protocol, which constitutes the "special protocol" referred to
above, forms Annex II to the minutes of the 68th meeting of the Danube
Conference, and runs as follows [FN1]:
"A la suite de l'adoption par la Conf�rence internationale du Danube de
l'article 6 du projet de Statut d�finitif qui d�termine la comp�tence de la
Commission europ�enne, les [p33] d�l�gu�s de France, de Grande-Bretagne,
d'Italie et de Roumanie ont convenu, sur la demande de la Conf�rence, de
r�diger le protocole suivant en vue de fixer l'interpr�tation qu'ils ont
entendu donner � la disposition susvis�e:
Les d�l�gu�s soussign�s d�clarent qu'en stipulant que "la comp�tence de la
Commission europ�enne s'�tend sur le Danube maritime, c'est-�-dire depuis
les embouchures du fleuve jusqu'au point o� commence la comp�tence de la
Commission internationale", l'article 6 du Statut n'apporte et ne doit
apporter � l'avenir aucune modification aux conditions ni aux limites dans
lesquelles ce r�gime administratif a �t� appliqu� jusqu'aujourd'hui. Il est
donc clairement entendu que les pouvoirs de la Commission ne sont, en vertu
de cette disposition, ni augment�s ni diminu�s, et qu'ils doivent continuer
� s'exercer sur le fleuve de la m�me mani�re que par le pass�, en conformit�
avec les trait�s, actes internationaux et r�glements de navigation auxquels
tous les �tats repr�sent�s ont adh�r�. Il est �galement entendu qu'entre
Galatz et Bra�la la Commission europ�enne continuera, comme par le pass�, �
entretenir le chenal navigable et son service de pilotage.
La pr�sente d�claration sera communiqu�e � la Conf�rence internationale �
toutes fins utiles et vers�e aux archives officielles de la Commission
europ�enne du Danube."
---------------------------------------------------------------------------------------------------------------------
[FN1] [Translation by the League of Nations.]
"INTERPRETATIVE PROTOCOL TO ARTICLE 6 OF THE STATUTE OF THE DANUBE.
"As a result of the adoption by the International Danube Conference of
Art�icle 6 of the Draft Definitive Statute determining the competence of the
European Commission, the delegates of France, Great Britain, Italy and
Roumania have agreed, at the request of the Conference, to draft the
following Protocol with a view to laying down their interpretation of the
above-mentioned provision.
The undersigned delegates declare that, in stipulating that the authority of
the European Commission extends to the maritime section of the Danube �
i.e., from the mouths of the river to the point where the authority of the
International Commission begins�Article 6 of the Statute does not, and shall
not hereafter, entail any modification of the conditions under which, or the
limits within which, this administrative regime has hitherto been applied.
It is clearly understood, there�fore, that the powers of the Commission are
not, in virtue of this provision, either increased or diminished, and that
they should continue to be exercised on the river in the same way as in the
past in conformity with the treaties, international acts, and rules of
navigation to which all the States represented have adhered. It is also
understood that between Galatz and Braila the European Commission will
continue as in the past to maintain the navigable channel and its pilotage
service.
The present declaration shall be communicated to the International
Conference arid placed in the official archives of the European Commission
of the Danube."
---------------------------------------------------------------------------------------------------------------------
[82] This Protocol was drawn up by the delegates to the European Commission,
who had been officially invited to attend the Danube Conference in an
advisory capacity. It purports to have been drawn up at the request of the
Conference, and to have been intended to state the interpretation which the
Commission placed upon Article 6 of the Statute, showing the exact extent of
the powers which it exercised before the war. It was understood that it
should be simply communicated to the Conference, as this was a domestic
matter which only affected the European Commission.
[83] But the States interested in the present dispute do not agree as to the
true meaning and the value of the Protocol, and it appears from the record
before the Court that the members of the Commission who had signed the
Protocol also disagreed as to its proper meaning. Whilst Roumania contends
that the Interpretative Protocol is decisive in her favour, (1) as evidence
of the meaning of the Statute, as accepted by the Conference, to the effect
that in the past the European Commission exercised between Galatz and Braila
only the [p34] powers of maintaining the channel and providing pilots, and
(2) as a decision of the European Commission, the other Powers at present
represented on the Commission maintain that the Protocol contains nothing
adverse to their contentions, as it only states that Article 6 in no way
modified the conditions under, or limits within which the powers of the
European Commission had been exercised in the past, and it is silent on the
point whether the Commission had possessed or exercised jurisdictional
powers.
[84] It is clear that if the Roumanian construction is sound, the Protocol
goes far beyond the scope of Article 6 of the Definitive Statute, as
interpreted by the Court. Such an extension of the bearing of this article
would, however, be binding on the Parties to the Definitive Statute only if,
as Roumania contends, the Protocol is to be considered as an authoritative
interpretation of the Statute, or if the European Commission as such were
authorized to determine, by its own decision, the limits of its
jurisdiction.
[85] But the Court is unable to agree with this contention.
[86] The so-called Interpretative Protocol is not an international agreement
between the Parties to the Definitive Statute; it is not annexed thereto,
whilst many interpretations of the articles of the Statute were inserted in
the Final Protocol, which has the same validity and duration as the
Convention to which it refers. The Interpretative Protocol is not even
mentioned in the Statute, which Roumania signed without any reservations,
and can in no sense be considered as a part of it.
[87] Neither is it possible to consider the Interpretative Protocol as a
decision of the European Commission by which the terms of the Definitive
Statute were modified. It has been already said that the Commission was
asked to attend the Danube Conference in an advisory or expert capacity. But
even if the document were to be regarded as a decision of the European
Commission, the Commission had no power to decide to abandon the functions
with which it was entrusted under existing international treaties.
[88] The Court, therefore, can only consider the Interpretative Protocol as
a part of the preparatory work. Whatever may [p35] be its importance from
this point of view � and in this respect the Court refers to what it has
already stated above � it is certain that it cannot prevail against the
Definitive Statute and therefore that it cannot be regarded as
authoritatively stating that the European Commission possessed only
technical and not juridical powers on the Galatz-Braila sector, even
assuming, for the sake of the argument, that this is the true meaning of the
Interpretative Protocol.
[89] With regard, finally, to the so-called modus vivendi of October 1922,
the Court does not think it necessary to consider at length this proposed
arrangement, the history and purport of which have been briefly set out in
the first part of the present Opinion. It will suffice to observe that,
though it is perfectly true that the three delegates of France, Great
Britain and Italy, with a view to arriving at an amicable solution of the
difficulties with which the Commission was faced, declared that they would
agree to leave to the Roumanian authorities the enforcement of the
regulations from a certain point below Galatz up to Braila, it is equally
true that this proposal was made dependent upon conditions which were not
accepted by the Roumanian Government. No agreement was therefore reached,
and the matter was left as it stood. The most that can be inferred from what
then happened is that the three delegates did not consider it impossible for
the European Commission to perform its duties even without the power of
making and enforcing regulations above Galatz. Evidently, however, they did
not think that this limitation of the powers of the Commission was made by
the Definitive Statute, as, otherwise, there would have been no
subject-matter for a compromise.
*
[90] The Court therefore arrives at the conclusion that the arguments
advanced by the Roumanian Government do not override the construction of the
Definitive Statute, which has been set out above.
[91] (3) Roumania recognizes that by Article 53 of the Treaty of Berlin the
European Commission was empowered to exercise its functions in complete
independence of the territorial authority [p36] as far as Galatz. She,
however, maintains that the exercise by the Commission of its powers as far
as Braila under the conditions laid down by the Treaty of Berlin could not
be based upon any other instrument than the Treaty of London, which Roumania
considers as not binding upon her. Any such extension would, therefore, in
her contention, constitute a violation of her sovereign rights.
[92] The Court is unable to share this opinion. According to the
construction placed by the Court upon Article 6 of the Definitive Statute,
this article confirms the pre-war situation of fact in the contested sector,
whatever this situation may have been. If, therefore, seeing that Roumania
has signed and ratified the Statute, it is found that this situation
included the exercise by the European Commission of the same powers between
Galatz and Braila as below Galatz, Roumania must be considered as having
accepted the exercise of these powers in the contested sector. But, as the
Court has had occasion to state in previous judgments and opinions,
restrictions on the exercise of sovereign rights accepted by treaty by the
State concerned cannot be considered as an infringement of sovereignty. It
may, moreover, be added that � and this point will be further developed
below � Roumania already had, before the war, participated in the
elaboration and promulgation of regulations having the force of
international treaties and conferring powers upon the European Commission
between Galatz and Braila as well as below Galatz.
[93] In this connection the Court wishes to record that, in the course of
arguments submitted on behalf of Roumania, it has been more than once
admitted that the European Commission may have exercised certain powers in
the contested sector; but that, at the same time, it has been contended that
such exercise was based on mere toleration by the territorial State and that
toleration could not serve as a basis for the creation of legal rights.
[94] In this respect it will suffice to observe that, under the construction
of Article 6 of the Definitive Statute adopted by the Court, even if, before
the war, an actual exercise of certain powers by the Commission above Galatz
was based on mere toleration, this practice has now been converted into
[p37] a legal right by Article 6 of the Definitive Statute. It is therefore
not necessary to examine whether, in international law, the continued
exercise of certain powers might not have converted into a legal right even
a situation considered by Roumania as a mere toleration.
[95] It cannot be maintained that Article 6 was intended to continue in a
state of mere toleration the situation which existed before the war; for
toleration implies a negation of right; and, as has already been shown, it
would be entirely at variance with the legal system established by the
Definitive Statute, if on one sector of the river neither Commission should
have any legal powers.
***
[96] According to the construction placed by the Court upon Article 6 of the
Definitive Statute, and considering the terms of the question upon which its
opinion has been asked, it is now incumbent on the Court to examine and
consider whether, in point of fact, the European Commission exercised,
before the war, the same powers between Galatz and Braila as below Galatz.
[97] Before entering upon this enquiry, the Court, however, thinks it
convenient to examine, as briefly as possible, what are the powers conferred
upon the European Commission by the treaties, conventions, acts and
international arrangements referred to in Article 5 of the Definitive
Statute and how the powers described by Roumania as technical powers are
connected with those referred to by her as juridical powers. Even if it is
true that under Article 6 the question under consideration is mainly a
question of fact, it is not unimportant, in order to appreciate to its full
extent the situation which existed before the war in the contested sector,
to see whether the distinction drawn by the Roumanian Government between
technical and juridical powers finds any support in the provisions upon
which the activity of the European Commission depends, or whether it is not
rather in contradiction with the spirit and the scope of those provisions.
*
[p38]
[98] Prior to 1815, the right to navigate rivers which separated or
traversed two or more States was not regulated by any general principle or
general act, and formed a subject of constant dispute. For the most part,
each State sought to monopolize the navigation of streams flowing through
its own territory, and even the right of an upper riparian State to access
to the sea was denied. As the existence of such conditions not only hampered
the development of commerce but also tended to prevent the growth of
international relations appropriate to a state of peace, the Parties to the
great international conflict which covered the concluding years of the
XVIIIth century and the earlier part of the XIXth, introduced into the
arrangements by which this long period of warfare was ended, provisions for
the freedom of navigation of international streams.
[99] In conformity with the provisions of the first Peace of Paris of May
30th, 1814, the Final Act of the Congress of Vienna of June 9th, 1815,
provided that the Powers whose territories were separated or traversed by
the same navigable river should regulate all that regarded its navigation by
common consent, and should for this purpose name commissioners who should
adopt as the basis of their proceedings certain principles laid down in the
Act itself. The first of these was the principle that the navigation of such
rivers along their whole course, from the point where each of them became
navigable to its mouth, should be entirely free, and should not, in respect
of commerce, be prohibited to any one, subject to uniform regulations of
police. The rest of the principles mainly related to uniformity of
navigation dues, and the establishment of a special service for the
collection of such dues, the exclusion of national customs houses from
interfering in the matter of navigation dues or from throwing obstacles in
the way of navigation, the maintenance of navigable channels, and the
keeping of towing paths in good repair, and the establishment of regulations
of police alike for all, and as favourable as possible to the commerce of
all nations. The arrangements, once settled, were not to be subject to
change, except with the consent of all riparian States. [p39]
[100] As a fixed basis for the regulations which commissioners were later to
draw up, certain "Particular Regulations", relating to the Rhine, the
Neckar, the Main, the Moselle, the Meuse, and the Scheldt, were annexed to
the Final Act and declared to form part of it. The Particular Regulation
relating to the Rhine, which was later on expressly referred to in the
clauses of the Treaty of 1856 relating to the Danube, provided, among other
things, for the establishment of special offices for the collection of
navigation dues, and for the appointment in each State of special judicial
officers to determine, in the first instance and in the name of their
sovereign, disputes relating to the regulations; but it was provided that
appeals from the decisions might be taken either to a superior tribunal of
the country or to the Central Commission which was to be set up in order to
establish a perfect control over the observance of the general regulations,
and to serve as an authoritative means of communication between the States
of the Rhine on all subjects relating to navigation. Provision was also made
for the appointment of a chief inspector of navigation and of
deputy-inspectors, who were respectively to attend to different sectors of
the river.
[101] Owing to a difference between the Netherlands and other riparian
States as to the limitation of rights of sovereignty over the sea adjacent
to the Dutch coasts, where it mingled with the waters of the Rhine, the
detailed definitive Regulation regarding the navigation of the Rhine was put
into effect only by the Convention of March 31st, 1831, to which Baden,
Bavaria, France, Hesse, Nassau, the Netherlands and Prussia were parties.
(Rheinurkunden: The Hague, Munich and Leipzig, 1918. I. 212 et seq.) This
Regulation, which incorporated and amplified the provisions of the
Particular Regulation of 1815, remained in force until October 17th, 1868,
when it was superseded by new regulations agreed upon at Mannheim; but in
the character of the regulations there was no essential change.
[102] The present Central Commission continues to perform its function as an
optional Court of Appeal in a normal manner. [p40] (La Navigation du Rhin.
Organe agr�� par la Commission centrale pour la Navigation du Rhin. Tome I,
No. 1, p. 4; Strasbourg, 1922-1923.)
[103] It was not until 1856 that definite provision was made for the
internationalization of the Danube. Turkey, under whose dominion the mouths
of the lower part of the stream lay, was not a party to the arrangements of
Vienna, and was not then admitted to the concert of the Powers. But by the
Treaty of Peace between Austria, France, Great Britain, Prussia, Russia,
Sardinia and Turkey, signed at Paris on March 30th, 1856, bringing to a
close the Crimean War, Turkey was (Article 7) admitted "to participate in
the advantages of the public law and concert of Europe", and the contracting
Powers, while engaging each to respect the independence and territorial
integrity of the Ottoman Empire, agreed to guarantee in common the strict
observance of that engagement. Coincidently with this elevation of the
position of Turkey in Europe, Article 15 of the Treaty expressly declared
that the Vienna principles relating to the internationalization of rivers
should in future be applied to the Danube and its mouths, that this
provision should henceforth form "a part of the Public Law of Europe", and
that the High Contracting Parties took it "under their guarantee". The
Vienna principles thus referred to were those which had found their
expression in the Rhine Regulations summarized above.
[104] In order to carry out this arrangement, Article 16 provided for the
creation of the Commission, called the European Commission of the Danube,
composed of representatives of Austria, France, Great Britain, Prussia,
Russia, Sardinia and Turkey, which was to plan and execute from Isaktcha
downward the works necessary to clear the mouths of the Danube, as well as
the neighbouring parts of the sea, from the sands and other impediments
which obstructed them; and in order to cover the cost of these works and of
the establishments connected with them, the European Commission was
empowered to fix; by a majority vote, duties of a suitable rate, the flags
of all nations to be treated on a footing of perfect equality. [p41]
[105] The Treaty further provided, by Article 17, for the establishment of
yet another international commission, called the River Commission. This
Commission, which was intended to be permanent, was (1) to prepare
regulations of navigation and river police; (2) to remove impediments, of
whatever nature they might be, to the application to the Danube of the
provisions of the Vienna Treaty; (3) to cause the necessary works to be
executed throughout the whole course of the river; and (4), after the
dissolution of the European Commission, to see to the maintenance of the
navigability of the mouths of the Danube and of the neighbouring parts of
the sea. It was understood (Article 18) that the European Commission would
complete its task in two years, and that the River Commission would complete
tasks (1) and (2) within the same period.
[106] On the strength of the provisions just recited, and particularly of
Article 17, it has been asserted that the European Commission not only
originally was, but has continued to be, legally invested only with
"technical" powers incident to the execution of works to clear the mouths of
the river and to put the channel in a navigable state.
[107] The Court does not take this view.
[108] Regulations for the River Commission were drawn up in 1857, but they
never came into force. Moreover, it was found that the physical task
committed to the European Commission could not be terminated within the
allotted two years. In these circumstances, the Parties to the Treaty of
Paris all concurred in prolonging the existence of the European Commission,
and in entrusting to it the power to make and enforce regulations of
navigation and police. From 1858 to 1863, inclusive, the Commission
promulgated regulations concerning the throwing overboard of ballast, the
police of the navigation, the pilot service, the police of the port and the
roadstead of Sulina, the lighter service, the police of the port of
Toultcha, the control of the operations of the Navigation Chest, and the
navigation of rafts and floats of timber. These separate regulations were
systematized in the "Provisional Regulations of Navigation and Police
applicable to the Lower Danube", promulgated by the [p42] European
Commission at Galatz on November 1st, 1864. This Instrument opened with the
express declaration that they were enacted, by common agreement, in
pursuance of the stipulations of the Treaty of Paris, and that as such they
had the "force of law". The Provisional Regulations were, however, soon
incorporated in the "Regulation of Navigation and Police applicable to the
Lower Danube", which was annexed to and formed part of the Public Act
concluded at Galatz, November 2nd, 1865, by the plenipotentiaries of all the
Parties to the Treaty of Paris. The Preamble to this Act, after reciting the
mandate committed to the European Commission by the Treaty of Paris,
expressly enumerates, among the tasks which the Commission, "acting in
virtue of this mandate", had performed, the regulation of the different
services connected with navigation.
[109] By the Public Act of Galatz, all the works and establishments
connected with navigation were declared to be "placed under the guarantee
and protection of international law"; and the European Commission was
charged with their administration, maintenance and development, "to the
exclusion of all interference whatever". The "Regulation of Navigation and
Police", enacted by the European Commission, was declared to be "binding as
law, not only in what concerns the river police, but also for the judgment
of civil processes arising from the exercise of the navigation". The
exercise of navigation was placed under the authority and superintendence of
an officer called the Inspector-General of the Lower Danube, and of the
Captain of the Port of Sulina; and merchant captains, of whatever
nationality they might be, were bound to obey the orders given to them in
virtue of the Regulation of Navigation and Police by those officials. The
carrying out of the Regulation was declared to be "ensured by the action of
the vessels of war stationed at the mouths of the Danube" under Article 19
of the Treaty of Paris; and in default of a vessel of war qualified to
interfere, the international authorities of the river might have recourse
"to the vessels of war of the territorial Power". The Regulation conferred
upon the Inspector-General, and upon the Captain of the Port of Sulina,
judicial power to impose, each within his jurisdiction, the penalties [p43]
specified in the Regulation for violations of its provisions. An appeal from
such sentences might be taken to the European Commission. It is also to be
observed that the Regulation expressly stated (Article 112) that the
Commission might modify it.
[110] These facts leave no room for doubt that, from the outset, the Parties
to the Treaty of Paris treated the making and enforcement, by means of an
International Commission, of regulations of navigation and police, involving
the exercise of juridical powers or comp�tence juridique, as an essential
incident of the internationalization of the Danube and of the exercise of
the technical powers or comp�tence technique to make the river navigable and
to keep it in a navigable state. In prolonging the life of the European
Commission, and entrusting to it the regulatory function, the Parties to the
Treaty of Paris merely assured the exercise by an existing international
body, which they had themselves created, of an essential power which had
been intended to be exercised by another and similar body.
[111] At a Conference held at Paris in 1866, between the plenipotentiaries
of the Parties to the Treaty of Paris of 1856, a protocol presented by the
plenipotentiary of France was unanimously adopted, on March 28th, by which
the Powers gave to the Public Act of Galatz, together with the annexed
Regulation of Navigation and Police, their formal sanction, thus giving to
both instruments the full force and effect of an international treaty.
[112] By the Treaty between Austria-Hungary, France, Germany, Great Britain,
Italy, Russia and Turkey, concluded at Berlin, July 13th, 1878, the
navigation of the Danube was (Article 52) again "recognized as being of
European interest"; and it was stipulated that the light war-vessels of the
Powers at the mouths of the Danube might ascend the river as far as Galatz.
This stipulation was in conformity with the further provision (Article 53)
that the European Commission, on which Roumania was in future to be
represented, was "maintained in its functions", and should "exercise them
henceforth as far as Galatz" in "complete independence of the territorial
[p44] authority". To this was added the declaration: "All the treaties,
arrangements, acts and decisions relating to these rights, privileges,
prerogatives and obligations are confirmed." That this declaration confirmed
the previous regulations in their full extent cannot be reasonably
controverted.
[113] On May 28th, 1881, there was signed at Galatz the "Additional Act to
the Public Act of November 2nd, 1865". The Parties to the Additional Act
were Great Britain, Germany, Austria-Hungary, France, Italy, Roumania,
Russia and Turkey. By Article 9 of the Additional Act, the avowed object of
which was to put the Public Act of 1865 in harmony with the Berlin Treaty,
all provisions of the Public Act not expressly modified by the Additional
Act retained all their force and effect. The rights, attributes and
immunities of the European Commission, as established by the Treaty of Paris
of 1856, of London of 1871, the Public Act of 1865, and the Acts and
Decisions prior to the Berlin Treaty, were expressly confirmed. But the
appointment, remuneration, control and dismissal of the Inspector of the
Lower Danube and his subordinates, and of the Captain of the Port of Sulina
and his subordinates, were in future committed to the European Commission,
and in deciding, as judges of first instance, upons contraventions committed
within the limits of their respective districts in matters of police and of
navigation, they were to give their decisions in the name of the European
Commission.
[114] By Article 54 of the Treaty of Berlin, the Powers undertook, one year
before the expiration of the term assigned for the duration of the European
Commission, to come to an understanding as to the prolongation of its powers
or the modifications which they might consider to be necessary.
[115] The Treaty signed at London, March 10th, 1883, between the Parties to
the Treaty of Berlin, prolonged (Article 2) the powers of the European
Commission for a period of 21 years, dating from April 24th, 1883, and
provided that, at the expiration of that period, the Commission's powers
should be tacitly prolonged for successive terms of three years, unless
[p45] one of the contracting Parties should, one year before the expiration
of such a term, give notice of its intention to propose modifications in the
Commission's constitution or powers. The Treaty further declared (Article 1)
that the jurisdiction (juridiction) of the Commission was extended from
Galatz to Braila; and (Article 8) that "all the treaties, conventions, acts
and arrangements relating to the Danube and its mouths" were maintained in
all their provisions, except as modified by the new Treaty.
[116] Finally, by the Treaty of Peace concluded at Versailles, June 28th,
1919, and the later treaties connected with it, the system of
internationalization of international waterways, begun at Vienna more than a
century before, was carried on, and broadly and comprehensively developed.
[117] Articles 331 to 339, inclusive, contain general clauses relating to
the Elbe, the Oder, the Niemen and the Danube. By Article 331 all these
rivers are from a certain point declared to be "international". This applies
to the Danube from Ulm. Article 332 declares that on these "international"
waterways the nationals, property and flags of all Powers shall be treated
on a footing of perfect equality, no distinction being made to the detriment
of the nationals, property or flag of any Power between them and the
nationals, property or flag of the riparian State itself or of the
most-favoured nation.
[118] Articles 346 to 353 contain special clauses relating to the Danube.
Article 346 provides:
"The European Commission of the Danube reassumes the powers it possessed
before the war. Nevertheless, as a provisional measure, only representatives
of Great Britain, France, Italy and Roumania shall constitute this
Commission."
[119] By Article 347, the Danube system, from the point where the competence
of the European Commission ceases, is to be placed under the administration
of an International Commission composed as prescribed in the article.
Article 376 provides that disputes which may arise between interested Powers
with regard to the interpretation and application of [p46] the preceding
articles shall be settled as provided by the League of Nations.
[120] It thus results from the examination of the international instruments
defining the powers of the European Commission which has just been made,
that, far from supporting the Roumanian contention that a distinction could
and should be drawn between so-called technical and so-called juridical
powers, these instruments would be fatal to any such view, unless a
situation of fact had developed superseding the legal situation denned by
the relevant international acts. No divergence of opinion existing as
concerns the exercise, by the European Commission, below Galatz of both
"technical" and "juridical" powers, the task of the Court therefore now is
to examine whether, in point of fact, the uncontested exercise by the
European Commission, before the war, in the Galatz-Braila sector, of certain
powers warrants the contention, advanced by the Roumanian Government, that
these latter powers were only those described by Roumania as technical
powers.
***
[121] The facts having been already investigated by the Special Committee
appointed by the League of Nations, and its report having been adopted by
the competent body of the League, the Court does not think it proper to make
new investigations and enquiries.
[122] The Court is fully aware that the Roumanian Government has refused to
accept the facts established by the Committee as conclusive evidence in the
matter; but the Court is of opinion that, for the purposes of the present
procedure, it must accept the findings of the Committee on issues of fact
unless in the records submitted to the Court there is evidence to refute
them.
[123] As regards the exercise before the war between Galatz and Braila of
jurisdictional powers by the authorities of the European Commission and of
Roumania respectively, the findings of the Special Committee are based on an
examination of the cases produced before it and of the appertaining
documents. These cases comprised the more than 400 cases on which the
representatives of Roumania based the allegation [p47] that jurisdiction in
the contested sector had been exercised by Roumania rather than by the
European Commission. The Special Committee found, on an examination of the
records, that these were cases the cognizance of which fell outside the
terms of the Regulations. It found, on the other hand, that from 1883 to
1899, and from 1904 to 1914, 63 cases had been adjudicated by the
authorities of the European Commission.
[124] In connection with the gap which the Special Committee had found for
some years in the list of cases relating to the exercise of the
jurisdictional functions by the European Commission and its authorities, it
may be mentioned that the Italian representative made before the Advisory
and Technical Committee for Communications and Transit, and repeated before
the Court in the course of the oral arguments, the statement that he had
found five more cases, one in each of the years 1899, 1901, 1902 and two in
1903. It does not appear that this statement has been contested by the
Roumanian representative either before the Commission or before the Court.
[125] On the basis of the facts as established by it, as a result of the
hearings of evidence and of the enquiries on the spot to which it proceeded,
the Special Committee arrived at the conclusion which it stated in its
report in the following terms [FN1]:
"Dans l'esprit du Comit�, il y a une chose qui domine toutes ces
consid�rations: c'est que, en fait, la pratique d'avant-guerre, dans le
secteur Galatz-Bra�la, a �t� l'exercice des pouvoirs de juridiction de la
Commission europ�enne."
---------------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"In the Committee's opinion, there is one fact of predominent importance
which emerges clearly from all these considerations, namely, that in actual
practice the European Commission exercised powers of jurisdiction in the
Galatz-Braila sector before the war."
---------------------------------------------------------------------------------------------------------------------
[126] In order to establish that such is in reality the position, the Court
will, without undertaking to make its enumeration complete, examine the
powers indisputably possessed by the Commission under various international
agreements, including the regulations in force immediately before the war,
below Galatz, and will ascertain, in relation to each point of jurisdiction,
if the particular power existed also over the Galatz-Braila [p48] sector.
The situation of fact results not only from decisions taken by the
Commission, but also from regulations and other prescriptions, made by the
European Commission � on which, since 1878, Roumania has been represented �
regulations which, at least in some of their clauses, refer expressly to the
Galatz-Braila sector. Even if the legal value of such clauses might be
contested because they were inconsistent with the territorial limits of the
powers of the Commission, as defined by the treaties which Roumania
recognizes as binding upon her, or inconsistent with the titles or other
clauses of such regulations and prescriptions, it cannot be denied that the
promulgation of an act containing one or more clauses relating to the
Galatz-Braila sector is an exercise of powers over that sector. If such
regulations and prescriptions were made immediately before the war, as is
the case with regard to two most important acts of this character, i.e. the
Regulation of 1911 and the Special Instructions of 1913, it is not possible
to presume that the powers given under these clauses were not exercised
before the war.
[127] The powers normally appertaining just before the war to the European
Commission below Galatz are mainly derived from the Public Act of 1865 and
its annexes, from the Additional Act of 1881 and from the Regulations of
1911, as well as from the Special Instructions of 1913.
[128] The powers of the European Commission of the Danube may be
functionally divided as follows:
[129] Technical works consist of the carrying out and maintenance of works
in the river and on the banks with a view to facilitating and ensuring
navigation over the navigable channel. On this essential point, there is no
difference of opinion as to the fact that such works have been carried out
by the Commission also in the Galatz-Braila sector and not only below
Galatz.
[130] Navigation dues. Under the Public Act of 1865, although the Treaty of
1856 designated Isaktcha as the upstream limit of the powers of the
Commission, the tariff of navigation dues (Annex B of the Public Act)
already fixed, under Article 12, the dues as regards ships which were making
the voyage [p49] from Galatz, or from a port above this point, to Sulina.
These dues, which varied according to distances, were levied not only for
compulsory pilotage but also and above all to cover the expenses of the
works carried out by the European Commission. The payment of these taxes was
ensured by penal sanctions (fines) to be imposed by the organs of the
Commission (Articles 17 and 18).
[131] The tariff and Regulations annexed to the Additional Act of May 19th,
1881, provide another system for the collection of the taxes (to be paid by
all ships which go from the Danube out to sea); but the Regulations in
question, in the elaboration of which Roumania participated, laid down in
Article 87 tariffs for compulsory pilotage in which Braila appears as a port
of the maritime Danube on the same footing as Galatz, Toultcha, Sulina,
etc., and that in spite of the fact that the Treaty of Berlin and the
Additional Act of 1881 had assured the exercise of the functions of the
European Commission only as far as Galatz.
[132] The river police, which is not denned either in the treaties or in the
regulations, essentially comprises � if one goes by the relevant passages,
and in particular Articles 31 to 98 of the Regulations of 1911 � the
regulation of navigation as far as the movement of ships on the river is
concerned.
[133] Under the second heading of the Regulations, there is an Article (No.
35) which refers to Braila on the same footing as Galatz and the lower ports
of the Danube. The rule was first adopted by the Commission in November,
1905. But already before that time there are on record three cases (in 1893,
1896 and 1897) in which sentence was given for passing through the port of
Galatz at full or too great speed. It would not be reasonable to suppose
that a system for policing the river applies in one of its provisions only
to a port, to the exclusion of the sector of the river in which this port is
situated. If the European Commission considered it had jurisdiction to issue
orders relating to the policing of the river with regard to the manner in
which vessels must traverse the Braila and Galatz port sectors, the
Commission had, it would seem, equally intended to regulate the [p50]
navigation between these two ports. This conclusion is corroborated by the
Special Instructions, drawn up in 1913 by the European Commission, which
provide, with a view to the policing of the river by an inspector and his
four subordinates (superintendents), for the division of the maritime Danube
into four sectors, the fourth of which goes as far as Braila (jusqu'�
Braila, � 14).
[134] The sentences of the European Commission mentioned in Annex B of the
Special Committee's Report which appear to relate to the policing of the
river on the Galatz-Braila sector, including cases which arose in the port
of Braila itself, are as follows (before the war): 1888: Nos. 1283, 2643;
1889: Nos. 1899, 2062; 1891: Nos. 370, 2356; 1892: Nos. 796, 1530; 1893: No.
2371; 1894: Nos. 1781, 2089; 1894: Nos. 465, 1720; 1896: Nos. 1183, 1250,
1502, 1729; 1897: No. 420; 1904: Nos. 637, 1201 A, 1292 A; 1907: Nos. 213,
895, 1074; 1908: Nos. 260, 40, 618; 1909: Nos. 247, 52; 1910: No. 166; 1911:
Nos. 96, 166.
[135] If the port of Galatz is, according to the contention of Roumania, to
be considered as lying within the sector to which the powers of the European
Commission would not normally apply, there remain no less than 24 sentences
to be mentioned, enumerated in the Annex to the Report of the Special
Committee, which concern cases relating to "Galatz" or "the port of Galatz".
[136] Pilotage is regulated under Heading IV of the Regulations of 1911
(Articles 101-124). Articles 101 and 102 lay down in specific terms that the
pilotage of the European Commission of the Danube extends up to Braila.
Pilotage up to Braila had already been the subject of provisions of the
Regulations of Navigation and Police of 1865 (Article 75) and, as was
pointed out above, of those of 1881 (Articles 84 et seq.). The
Interpretative Protocol notes that the European Commission of the Danube
"will continue" its pilotage services. Among the sentences of the European
Commission mentioned in Annex B of the Special Committee's Report relating
to the pre-war pilotage, there are only six cases which concern pilotage and
they all belong to the years before 1897. The absence of sentences of the
European Commission with regard to a certain subject matter is not
conclusive as regards the non-existence [p51] of undisputed jurisdictional
power in relation to such subject.
[137] Lighter services and superintendence of ballast. These functions of
the European Commission are provided for under Heading V of the Regulations
of 1911 and by Headings IV and III respectively of the Special Instructions
of 1913.
[138] The provisions relating to lighters do not expressly mention Braila;
but Section 40 of the Instructions provides that the superintendents of the
four river sectors must exercise control over empty lighters which are
proceeding up river; and Section 36 provides that ballast cannot be unloaded
(discharged) unless in the presence of an agent of the river police.
[139] The record before the Court does not mention instances dealing with
the exercise of these powers in the Galatz-Braila sector; it should be noted
that on this point this record is confined to the sector in question.
[140] Towage. The provisions of Articles 146 to 160 do not expressly refer
to the Galatz-Braila sector nor to any other sector or special locality
except the Sulina branch and the port of Sulina. On the other hand, it
should be stated that sentence No. 1017 of 1904 of the European Commission
relates to towage of a "barck" without a licence between Braila and Galatz
by the S.S. Loizos.
[141] Protection of works is dealt with under Heading VII of the Regulations
of 1911; the first two articles, which are almost exact reproductions of the
corresponding provisions of the Regulations of 1881, contain references to
the sector "below Galatz". But Article 163 (dredging operations) is capable
of being interpreted more extensively.
[142] Nevertheless, in the Annex to Protocol 388 of May 20th, 1913,
indications may be found which are of considerable importance and which
justify the conclusion to be arrived at, that the European Commission
considered it had jurisdiction to make and enforce sanctions for the
protection of works which it had carried out. The European Commission had
contemplated the setting up of a special jurisdiction for recovering damages
by civil process for injuries caused by third Parties. This proposal was
abandoned, Great Britain being of the opinion that it would be outside the
jurisdiction of the Commission. But by regulations issued in 1868, the [p52]
European Commission established a very high scale of fines for cases of
injuries, and these regulations were still in force in 1913. The report
annexed to Protocol No. 838 contains the following interesting passage on
this subject [FN1]:
"Mais si la cr�ation d'un tribunal sp�cial comp�tent pour r�gler la question
a pu �tre consid�r�e comme une mesure d�passant la sph�re des pouvoirs de la
Commission europ�enne du Danube, il n'en est pas moins vrai que la
Commission europ�enne tient de ses actes fondamentaux le droit de fixer des
r�gles pour la situation sp�ciale dont il s'agit, et que, notamment, elle a
tout pouvoir pour introduire dans son R�glement de navigation et de police
des dispositions relatives � cette question. C'est ce qui r�sulte de
l'alin�a 2 de l'article 7 de l'Acte public du 2 novembre 1865, ainsi con�u:
"Il est entendu que ce R�glement fait loi, non seulement en ce qui concerne
la police fluviale, mais encore pour le jugement des contestations civiles
naissant par suite de l'exercice de la navigation."
---------------------------------------------------------------------------------------------------------------------
[FN1] [Translation by the Registry.]
�But if the setting up of a special tribunal to deal with the matter may
have been Tegarded as a measure ultra vires of the European Commission of
the Danube, it is none the less true that that Commission draws from its
very constitution the right to make rules for the special situation in
question, and in particular has full powers to insert provisions dealing
with that question in its Navigation and Police Regulations. This appears
from Article 7, paragraph 2, of the Public Act of November 2nd, 1865, which
was as follows ; "These Regulations have force of law not only as regards
the river police but also for the judgment of civil disputes arising out of
navigation."
---------------------------------------------------------------------------------------------------------------------
[143] Moreover, it is a fact which is amply proved by the annual reports
made to the European Commission by its Consulting Engineer, that the works
protected in this manner include also works carried out between Galatz and
Braila, and more particularly at the place known under the name of Ziglina.
[144] Jurisdictional powers are those which are dealt with in the
Regulations under Heading VIII (Contraventions). Chapter I (Assessment of
fines) refers in the first two paragraphs, which deal with contraventions of
the river police regulations (Article 168) and with pilotage (Article 174),
to articles which expressly relate to the Galatz-Braila sector (Articles 35
and 101). There is nothing to justify the view that the provisions relating
to the application of fines (Articles 186 to 193) do not apply as regards
Articles 168 and 174. Jurisdictional powers therefore exist, at all events
in some cases, in the Galatz-Braila sector. The tenor of Articles 168 and
174 would not justify the [p53] conclusion that the other parts of Heading
VIII do not apply, generally speaking, to all the material clauses of the
Regulations which may be recognized as applicable to the Galatz-Braila
sector.
[145] The report of the Special Committee as to the pre-war exercise of
jurisdiction by the European Commission in the Galatz-Braila sector states
that amongst the cases in question there are many which concern
contraventions of clauses not specially declared applicable to that sector.
This statement supports the conclusion that in practice these clauses have
been understood as applying to the sector. That this is really the case is
confirmed by a letter under date of June 18th, 1881, from the Roumanian
delegate to the Roumanian Minister for Foreign Affairs, This letter says
that, in fact, the Regulations of the Commission were, from the time of its
creation, in great part applied to Braila, this port being considered as the
terminal point of the course of sea-going navigation. It is further said
that, in fact, the ships extend their course as far as Braila because it is
there where they take in their cargo, and that it has not been possible to
elaborate a special regulation for this sector without prejudice to
navigation. This is, the letter continues, the reason why, when drawing up
the regulations for navigation between Galatz and the Iron Gates, the
proposal was made and accepted by all to confirm a situation of fact
considered as necessary.
[146] Lastly, it should be observed that in the heading of the list of
convictions made by the authorities responsible for enforcement of the
navigation regulations and regularly annexed to the annual statistics
presented to the Commission by its Secretariat, the phrase "between Braila
and Sulina" has been substituted since 1904 for "between Galatz and Sulina".
*
[147] It results from the above comparison of the powers which the European
Commission undoubtedly possesses below Galatz with those which it exercised
on the Galatz-Braila sector, that the latter cover practically the same
ground. This coincidence is easily explained if one considers it in the
light of the legal [p54] situation which has been stated above and which
shows that, from the beginning, the different powers of the European
Commission have been treated as forming a necessary unity, and that, more
especially, the jurisdictional powers were considered as a corollary to the
technical powers, which were, in fact, to be protected by sanctions. If such
was the state of things on the Danube below Galatz, it seems quite natural
that the European Commission should also act along the same lines in the
Galatz-Braila sector, although both the Commission and Roumania avoided
defining once and for all the legal situation there applicable. Under these
conditions, an identical state of things on the whole maritime Danube
ensued, as found by the Special Committee and as also appears from the
comparison which the Court has just made.
[148] It may be added in this connection that already under the Public Act
of 1865, which was ratified by Turkey, the territorial sovereign, the
European Commission had enacted different regulations, relating to
navigation dues and to pilotage, and applying to the navigation up to
Braila, or Ibraila (as this place was formerly called). This was done in
spite of the fact that, in the Public Act of 1865, Isaktcha was mentioned as
the upstream limit of the jurisdiction of the European Commission.
[149] It was never contended that this state of things was not binding upon
Roumania when she became, in 1878, an independent Power and was admitted, as
the territorial sovereign of a great part of the Lower Danube, to the
European Commission. Moreover, the Additional Act of 1881, to which Roumania
was a Party, confirmed, by its Article 9, those provisions of the Public Act
which were not expressly modified. The Regulations, made with the
collaboration and consent of Roumania, in pursuance of the Additional Act,
also contain clauses relating to Braila, though the Treaty of Berlin and the
Additional Act mention Galatz as the upstream limit of the Commission's
jurisdiction. It is, therefore, evident that the situation on which the
Court relied in the above comparison is in no way exceptional or new, but
is, in its essential features, the outcome of the situation created by the
Acts of 1865 and 1881. [p55]
[150] Under these conditions, no decisive weight can be attached to the fact
that the Regulations of 1911, in particular its Articles 1 and 3, and the
Instructions of 1913, contain several clauses which seem to indicate that
the powers of the Commission are to be exercised only below Galatz. These
manifest and regrettable inconsistencies cannot suffice to overrule the
conclusions at which the Court has arrived, both on the ground of the
findings of fact of the Special Committee and in consideration of the whole
system of the international acts applicable before the war to the maritime
Danube.
[151] This conclusion is that before the war the European Commission
exercised the same powers between Galatz and Braila as below Galatz, and
therefore � in view of the construction placed by the Court upon Article 6
of the Definitive Statute � that under the law at present in force the
Commission has the same powers on these two sectors of the maritime Danube.
***
II. [How Far Upstream Do These Powers Extend]
[152] The first question includes as a final subdivision the following
point: "How far upstream do they [these powers] extend?" According to the
context, the word "they" may refer, either solely to the sentence
immediately before, which speaks of "powers of any kind" which may be
possessed by the European Commission of the Danube in the Galatz-Braila
sector, or also to the first sentence of question No. 1, which envisages the
possibility that the European Commission of the Danube has "the same powers"
on the whole of the maritime Danube. In the first alternative, the question
of the upstream limit would no longer arise, since the Court has arrived at
the conclusion that the European Commission , of the Danube possesses the
same powers everywhere. [p56]
[153] Nevertheless, the Court considers that the question of the upstream
limit must be dealt with in any case. What is required is to fix the point
where the powers of the European Commission, whatever they may be, terminate
and are replaced by those of the International Commission. A difference of
opinion has indeed arisen between Roumania and the other three Powers in
regard to this point. Moreover, it is hardly conceivable that the
Galatz-Braila sector, in regard to which there have been disputes as to the
powers of the European Commission, does not coincide as regards its upstream
limit with the maritime Danube, over which the European Commission's
authority extends under Articles 6 and 9 of the Definitive Statute. This
being so, the Court considers that it must deal with the upstream limit of
the powers of the European Commission.
[154] The point of demarcation between the regime of the maritime Danube and
that of the fluvial Danube being indisputably Braila, the only question to
be treated is whether or not Braila is included in the maritime Danube and
consequently comes within the jurisdiction of the European Commission in so
far as a port such as Braila is under the control of the European Commission
and not under that of the territorial authorities. The latter point is not
dealt with as this stage; it is considered under question No. 2.
[155] Since at Braila two parts of the river subject to two different
regimes and the jurisdiction of two different Commissions meet, it might be
thought that in the sector of the river enclosed within the limits of the
port, the two regimes would overlap, that is to say, that there would be an
arrangement whereby every vessel would, until it had terminated its voyage
in the port of Braila, remain subject to that regime under which it began
its voyage. But this seems to be precluded by the terms of Article 6 which,
like the Treaty' of Versailles (Article 347), speaks of "the point where the
authority of the International Commission commences". Now, "point" can only
mean a topographical point or rather a topographical line, and not a more or
less extensive zone of concurrent jurisdiction.
[156] If the upstream limit is formed by a line across the river, this line
must be placed immediately above the port of Braila. The reasons for this
are as follows: [p57]
[157] It is certain that Braila is a port of the maritime Danube in the
technical and commercial sense, because sea-going vessels use this port.
[158] It is also certain, as has been shown above, that the European
Commission of the Danube possesses and has possessed since 1865, at all
events some powers upon the Galatz-Braila sector, that is to say powers
exercised in favour of sea-going shipping. Indeed, commercial shipping loses
its whole object if it cannot reach economic centres; so that sea-going
shipping on the Danube must be able to reach the terminal port of such
shipping. This view is especially indicated because, before 1921, the
fluvial Danube Was not effectively internationalized, so that the regime, of
freedom of navigation, as far as the (jusque dans le) port of Braila, could
before the war only be assumed by the European Commission of the Danube, in
so far as that duty rested with an international organization.
[159] The principle that freedom of navigation upon a river must include
navigation as far as (jusque dans) the zone to be reached, was made clear by
the Act of the Rhine (1831) which lays down that freedom of navigation
jusqu'� la mer (as far as the sea), as enunciated by the Treaty of Peace of
Paris of May 30th, 1814, and the articles concerning the navigation of the
Rhine annexed to the Final Act of the Congress of Vienna (1815), means
jusque dans la pleine mer (as far as the sea and into the high sea) et vice
versa. Accordingly, the Danube Navigation Act of 1857 lays down (Article 5)
that the right of navigation from the high seas to each one of the ports of
the Danube and from each of these ports to the high seas is free for the
ships of all nations, and that, consequently, these ships may touch at all
ports (en cons�quence, lesdits b�timents pourront toucher � tous les ports .
. .).
[160] The Regulations of Navigation and Police for the sector from Braila to
the Iron Gates attached to the Treaty of London of 1883 � Regulations which,
it is true, have not been put into force � are nevertheless of some
interest, quite apart from the weight which may be attached to this Treaty,
as showing the intention of the signatories of the Treaty of London, and
more especially the point of view held at that [p58] time by the majority of
the European Commission (the Roumanian representative voting against) by
whom the regulations were drawn up. Article 103 of these Regulations
provides, for the purpose of river supervision on the Danube between the
Iron Gates and Braila, for four sectors, the fourth of which extends from
Calarash-Silistria down to but excluding Braila. The alterations suggested
by Roumania did not refer to this point. It is thus clear that Article 1 of
the Treaty of London was construed by its authors as extending the
jurisdiction of the European Commission to Braila inclusively. It seems
therefore plain that the situation of fact which, in spite of the disputes
in respect of the situation at law, had arisen on the sector in question,
could not fail to take into account this precise locality, the port of which
had already before 1883 been the terminal point for the compulsory pilotage
organization of the European Commission. This point of view seems to be
distinctly corroborated by the fact that Article 35 of the Regulations of
1911 deals with ships which cross the sector of the port of Braila.
Moreover, several decisions of the European Commission included in Annex B
of the Report of the Special Committee, refer clearly to the port of Braila
itself (1888: No. 2643; 1889: Nos. 1899 and 2062; 1891: No. 370; 1892: Nos.
796, 1530; 1894: No. 2089; 1895: No. 1720; 1896: Nos. 1183, 1250; 1904: No.
637; 1907: No. 213; 1908: Nos. 260,: 40; 1909: No. 247).
[161] The fixing of an upstream limit to the powers of the European
Commission in such a way as to include the port of Braila within the
maritime Danube was also confirmed by the terms of Article 9 of the
Definitive Statute, which provides that the powers of the International
Commission extend over the Danube between Ulm and Braila. This wording is
more in keeping with a construction which excludes Braila from the fluvial
Danube than with one which includes this port in the fluvial regime.
[162] This construction of Article 9 is confirmed by the discussions which
took place in 1922 in the International Commission regarding the "Draft
Navigation and Police Regulations applicable to the part of the Danube
between Ulm and Braila" and to its internationalized system. [p59]
[163] It appears indeed from these discussions that in the opinion of the
International Commission its authority does not extend beyond the upstream
side of Braila. And the Roumanian delegate, far from disputing this view,
was most insistent that the downstream limit of its authority should be
fixed at a point very considerably above that which the Commission regarded
as the upper limit of the port of Braila. In accepting the Commission's
decision, moreover, he declared that his Government could never agree to the
extension of the Commission's authority as far as the port of Braila
inclusive. It is true that the Roumanian delegate, in making this
declaration, started from the point of view that the ports and the
corresponding sectors of the rivers were outside the jurisdiction of either
Commission, but it can be inferred at any rate from the foregoing
observation that the International Commission as well as Roumania herself
did not consider the port of Braila as coming within the competence of the
International Commission.
***
B. Question No. 2
[164] The second question put to the Court under the Resolution of the
Council of the League of Nations of December 9th, 1926, runs as follows:
"Should the European Commission of the Danube possess either the same powers
on the Galatz-Braila sector as on the sector below Galatz, or certain
powers, do these powers extend over one or more zones, territorially defined
and corresponding to all or part of the navigable channel, to the exclusion
of other zones territorially defined and corresponding to harbour zones
subject to the exclusive competence of the Roumanian authorities? If so,
according to what criteria shall the line of demarcation be fixed as between
territorial zones placed under the competence of the European Commission and
zones placed under the competence of the Roumanian authorities? If the
contrary is the case, on what non-territorial basis is the exact dividing
line between the respective competence of the European Commission of the
Danube and of the Roumanian authorities to be fixed?" [p60]
[165] The Court, having arrived at the conclusion that the European
Commission has the same powers between Galatz and Braila as between Galatz
and Sulina, obviously now has to deal with this question.
[166] In the first place it is necessary to elucidate the exact scope of the
question. Owing to the close inter-relation between questions 1 and 2, the
conclusion must be drawn that the line of demarcation between the different
zones which correspond either to the whole or a part of the navigable
channel, or to harbour zones which are subject to the exclusive jurisdiction
of the Roumanian authorities, and the criterion for the delimitation of
which has to be fixed by the Court, only applies to the sector of the
maritime Danube which extends from Galatz to Braila. It is not, therefore,
the jurisdiction of the European Commission of the Danube, in relation to
the ports in general, which is the subject of the pending question, although
the Court is bound to take note of considerations which might go beyond the
limits of the special conditions of the Galatz-Braila sector.
[167] This having been established, it should be remembered that, as results
both from the documents submitted to the Court and from the maps which were
put in, the only ports in the sector in question are Galatz and Braila. The
question of the line of demarcation of powers as between the European
Commission and the Roumanian authorities is therefore dealt with only in
relation to these two ports.
[168] It is also to be observed that neither in the question submitted to
the Court nor in the written or oral argument, have the four Governments
contended that these two ports came under different regimes: their arguments
differed only in so far as the nature and the conditions of the regime which
applied to these ports were concerned.
[169] Since the Definitive Statute, in so far as it applies to the maritime
Danube, does not contain any specific provisions relating to ports, the
question of the jurisdiction of the European Commission in relation to ports
can only be considered and dealt with as a special application of the
principles embodied in Articles 5 and 6 of the Statute.
[170] The terms in which the question has been put necessarily imply that
the Roumanian authorities possess some powers [p61] in relation to the ports
in question. The subject of the controversy is the criterion, territorial or
otherwise, for the line of separation between the two jurisdictions as
regards ports. This point of view is confirmed by the report of the Special
Committee as well as by the Memorials of the British and French Governments,
which acquiesce as far as concerns the ports of Galatz and Braila, in the
Roumanian authorities' exercising jurisdictional powers, which are not
necessarily deducible from international instruments governing the regime on
the maritime Danube. The British Government, it is true, has formulated a
reservation as to whether the exercise of those powers was in conformity
with the above-mentioned instruments; but it has declared that, without
prejudice to the question of principle, it did not desire to insist upon any
modifications being applied to a long established practice. That the pre-war
situation of fact must be considered as maintained, even in so far as
concerns the ports of Galatz and Braila, follows from the terms of Article 6
of the Definitive Statute as interpreted by the Court.
*
[171] The question submitted to the Court contemplates in the first place
the possibility that the powers of the European Commission are to be
considered as being limited to a territorial zone corresponding to the whole
or to a part of the navigable channel, to the exclusion of one or more
territorial zones corresponding to harbour zones and subject to the
exclusive competence of the Roumanian authorities. This does not mean that
these last zones must coincide with the territorial limits of the port,
whether such limits are fixed by administrative or legal dispositions or
simply result from the situation of fact. There may be considerations which
lead to adopting very extensive territorial limits for a port which could
not in any way serve as a limit for the powers of the Commission.
[172] The Roumanian Government upholds the view that the limit between the
competence of the European Commission and that of the Roumanian authorities
is of a territorial nature and is formed by transverse lines drawn across
the river with their points of departure at the upstream and downstream
limits of the port, thus creating sectors which would be wholly subject to
the territorial authorities alone. [p62]
[173] There is no text in force upon which this method can be founded, and
it has not even been contended that such a system has been recognized in
connection with other international rivers. It is true that this method was
embodied, although with an express reserve in favour of navigation in
transit, in Article 105 of the Draft Regulations for the Danube between the
Iron Gates and Braila annexed to the Treaty of London, but these Regulations
were never put into execution, and in the Definitive Statute it was not
adopted.
[174] Such a method of providing for sectors of the channel corresponding to
the ports not only cannot be founded on any relevant texts, but is even
contrary to at least one of the provisions of the Regulations of 1911.
Article 35, for example, contains in particular a provision relating to
ships "when they pass through the sectors of the ports of Braila, Galatz",
etc. As has already been indicated above, the European Commission is
entrusted with the task of ensuring free navigation, that is to say, the
free movement of vessels on the maritime Danube. From this point of view it
would be inconceivable that the territorial jurisdiction of the European
Commission should be interrupted by port sectors exclusively subject to the
territorial authorities. In order to permit of the river being so
dismembered, a special provision to that effect would have to exist. Now
Article 3 of the Definitive Statute on the contrary clearly lays down the
principle that the two parts of the Danube are wholly subject, that is to
say over the whole course of both sectors, to the authority of one or other
of the Commissions.
[175] The facts recorded in the report of the Special Committee afford no
support to the contention of the Roumanian Government. It is also to be
noted that, amongst the sentences of the European Commission mentioned in
the Annex to the Report of the Special Committee, there are no less than 36
cases which, judging from the terms used by the Committee, relate to
occurrences "in the port" (dans le port) or "in the roads" (en rade) of
Galatz or Braila. In five additional cases "Galatz" or "Braila" are referred
to, without further specification.
[176] Another alternative would be to distinguish between the river surface
and the land surface, the European Commission being solely competent on the
former, the territorial authorities [p63] only on the latter. But this
method cannot be accepted. Not only has it not been put forward by any of
the Governments concerned, but it would be incompatible on the one hand with
the undisputed exercise of certain jurisdictional powers by the Roumanian
authorities over ships whilst in port, and on the other hand with the fact
that the powers of the European Commission may extend to the banks
themselves, for example, for carrying out technical works as well as for
controlling towage and deposit of ballast.
[177] Nor is there any foundation, either in the instruments in force or in
the practice as shown by the Special Committee, for adopting any other
territorial delimitation as to the respective powers of the European
Commission and those of the territorial authorities in the ports. No such
line of demarcation has been suggested by any of the Governments concerned,
and the Court has not been furnished with information which could possibly
justify the adoption of such a line.
[178] Indeed all information with which the Court has been furnished as to
the practice, as well as the instruments defining the object and the powers
of the European Commission, lead to the conclusion that, as regards the
ports in question, the dividing line between the respective competences of
the European Commission and the Roumanian authorities is of a
non-territorial nature.
*
[179] The principle of territorially denned zones having been discarded, the
Court will have to ascertain what non-territorial criterion is to be applied
in distinguishing between the respective jurisdictions of the European
Commission and the Roumanian authorities. In this connection the following
should be observed: Although the European Commission exercises its functions
"in complete independence of the territorial authorities" and although it
has independent means of action and prerogatives and privileges which are
generally withheld from international organizations, it is not an
organization possessing exclusive territorial sovereignty. Roumania
exercises power as territorial sovereign over the maritime [p64] Danube in
all respects not incompatible with the powers possessed by the European
Commission under the Definitive Statute. When in one and the same area there
are two independent authorities, the only way in which it is possible to
differentiate between their respective jurisdictions is by defining the
functions allotted to them. As the European Commission is not a State, but
an international institution with a special purpose, it only has the
functions bestowed upon it by the Definitive Statute with a view to the
fulfilment of that purpose, but it has power to exercise these functions to
their full extent, in so far as the Statute does not impose restrictions
upon it.
[180] As has already been stated, the Statute, neither directly nor
indirectly, affords any criterion for differentiating between the respective
jurisdictions in the ports. The silence of these instruments in regard to
the ports � apart from the special provisions relating to the port of Sulina
and other special provisions � does not however constitute proof that the
ports are not also within the jurisdiction of the European Commission.
[181] The international instruments, from the Treaty of Paris onwards, do
not specially relate to the navigable channel or the ports; they deal with
the navigation of the Danube, of which both the channel and the ports are
essential features. That is why the Public Act of 1865 and the regulations
based thereon, as also subsequent treaties, have laid down certain rules for
individual ports, and for the same reasons also the Definitive Statute has,
as regards the fluvial Danube, laid down principles concerning the regime of
ports.
[182] The Definitive Statute, in conformity with the principles already
established by the Treaty of Paris of 1856, declares, in Article 3, that
navigation is to be free and that all flags are to receive equal treatment.
[183] The conception of navigation includes, primarily and essentially, the
conception of the movement of vessels with a view to the accomplishment of
voyages. It is obvious that the object of the Treaty of Paris, and of all
the instruments subsequent to it, has been to assure freedom of navigation
in this sense, and in the three following respects: (1) improvement of the
[p65] technical conditions of navigation by carrying out works in the river;
(2) upkeep of the navigable, channel and assurance of the safety of shipping
by policing the river; (3) prohibition of the collection of dues based
solely on the fact of navigation. Freedom of navigation, regarding
navigation as the movement of vessels, must be assured by the European
Commission on the whole river, including the portions of the river in the
neighbourhood of ports or which actually constitute a port. That this is so
appears both from the provisions of the Regulations of 1911 (Articles 35,
80, 99 and 100) which expressly refer to sectors of the river corresponding
to ports, and from the thirty-six sentences already mentioned which the
European Commission has pronounced in cases which have arisen in the ports
of Galatz and Braila. It should also be pointed out that the Navigation
Regulations of 1911 (Article 4), as also those which preceded them, dating
from 1881 (Article 86), adopt the point of view that the voyage of a vessel
only ends when it takes its moorings in a port.
[184] The freedom of navigation which it is the duty of the European
Commission to assure therefore covers not only shipping passing through a
sector of the river corresponding to a port, but also shipping arriving in
or leaving a port. This point of view, which is not contrary to any of the
facts ascertained by the Special Committee, is the only one in conformity
with the principle of freedom of navigation as understood in the instruments
relating to the maritime Danube. As has already been stated when considering
the upstream limit of the powers of the European Commission, freedom of
navigation is incomplete unless shipping can actually reach the ports under
the same conditions. The Commission's powers therefore extend to navigation
into and out of the port, as well as through the port.
[185] One criterion which emerges from the foregoing is the following: In
the ports of Galatz and Braila, the European Commission alone has
jurisdiction over navigation, that conception being taken to mean any
movement of vessels forming part of their voyage. [p66]
[186] The second idea which the conception of navigation comprises is that
of contact with the economic organization and with the means of
communication of the country reached by navigation. Ports are precisely the
means of establishing such contact. In this connection a distinction must be
drawn between, on the one hand, everything connected with (1) vessels
situated in ports, such as the conditions under which they must take or
shift their moorings, their position alongside quays, their admission to
inner docks, or the maneuvers necessary for this purpose, and (2), on the
other hand, the loading or unloading of ships, the warehousing of goods,
access to railways, etc.
[187] As regards the first category of conditions, examination of the
Navigation Regulations would rather lead to the conclusion that the
authority of the European Commission also includes the policing of the port,
that is to say, in so far as regulations concerning vessels in harbour are
concerned. As regards the ports of Sulina and Toultcha, and particularly the
former, the Regulations of 1911, as also the preceding Regulations and
certain of the notices to navigators issued from time to time by virtue of
the powers conferred upon the Commission, contain provisions to this effect.
But the investigations of the Special Committee show that the Roumanian
authorities have exercised control over the ports of Galatz and Braila as
regards vessels moored in these ports.
[188] As regards installations and the port services for loading and
unloading, etc., as such, it is to be observed that the international
instruments relating to the maritime Danube and the Regulations issued in
pursuance of them, contain ho provisions in this respect. Nor has the
Special Committee recorded the exercise of any powers in this sphere by the
European Commission; on the contrary, it appears that it is generally agreed
that the regulation of these services, and jurisdiction in relation to them,
belong to the Roumanian authorities.
[189] Nevertheless, this situation of fact cannot be wholly unconnected with
the international regime of the Danube and cannot leave open the possibility
of conditions establishing [p67] themselves which are at variance with the
principles laid down by the international instruments. Here the second
principle already established by the Treaty of Paris, and once more
enunciated by the Definitive Statute, namely the equal treatment of all
flags, comes into play.
[190] Roumania herself, in her Counter-Memorial, admits that the ports of
Galatz and Braila in actual fact enjoy in its entirety the regime applicable
to the ports of the fluvial Danube. Now this regime, which is denned by
Article 20 of the Statute, is simply the application of the principle of
freedom of navigation and of equal treatment of all flags, which has been
recognized for the Danube since 1856. Since, according to the terms of
Article 3 of the Statute, it rests with the European Commission to assure
this freedom and equality upon the maritime Danube, that organization must
necessarily have power to intervene, should the territorial authorities
adopt measures contrary to these principles. Since neither the Report of the
Special Committee nor any document or declaration before the Court mentions
facts relating to the exercise of this right of intervention, the Court is
unable to state what the situation on this point was in fact before the war.
The absence, however, of findings of pertinent facts of record in respect to
this specific point does not suffice to prove that such a right, which is a
necessary corollary to the duties of the European Commission, does not
exist. The criterion for the delimitation of the powers of the European
Commission and of the territorial authorities in the ports of Galatz and
Braila with regard to vessels moored or otherwise at rest in these ports,
and with regard to the use by vessels of the installations and services of
these ports, is therefore the following: the powers of regulation and
jurisdiction belong to the territorial authorities; the right of
supervision, with a view to ensuring freedom of navigation and equal
treatment of all flags, belongs to the European Commission.
[191] This situation is in no way affected by the fact that Roumania has
adhered to the Convention and Statute concerning the regime of navigable
waterways of international concern of April 20th, 1921. Article 9 of that
Statute is, broadly speaking, identical with the special regime for the
[p68] Danube. Furthermore, Roumania has only adhered to the Convention and
Statute in so far as the provisions of the Barcelona Statute are not in
conflict with the principles of the Definitive Statute.
[192] The Court must content itself with the establishment of these two
criteria, which are evolved on the one hand from the law which emerges from
international instruments, and, on the other hand, from the de facto
situation ascertained in regard to the ports of Galatz and Braila.
[193] It is impossible further to define and develop these criteria, in the
absence of texts specially relating to the ports in question, and on the
basis of somewhat scanty statements of fact which do not go into details. It
is moreover in the nature of things that a delimitation of powers, in a
matter such as that under consideration, can only be adequately effected on
the basis of special regulations taking into account the variety of special
conditions and special circumstances, which are not necessarily constant but
may from time to time require readjustment.
***
C. Question No. 3
[194] The Court having arrived, as regards the first question, at the
conclusion that the European Commission possesses in the Galatz-Braila
sector the same powers as on the other parts of the maritime Danube, there
is no need to consider the third question, which has only been submitted
subject to the answer given in regard to the first question. [p69]
***
[195] For these reasons,
The Court,
by nine votes to one, is of opinion
(1)
(a) that under the law at present in force the European Commission of the
Danube has the same powers on the maritime sector of the Danube from Galatz
to Braila as on the
sector below Galatz;
(b) that these powers extend up to the port of Braila, this port being
included;
(2)
(a) that the powers of the European Commission of the Danube extend over the
whole of the maritime Danube, and are not excluded from zones territorially
denned and corresponding to harbour zones;
(b) that the dividing line between the respective competences of the
European Commission of the Danube and of the Roumanian authorities in the
ports of Galatz and Braila is to be fixed according to the criteria
(i) of navigation, in the sense of the movement of ships as part of their
voyage, the European Commission of the Danube being also competent in regard
to navigation in ports, whether the ships are passing through or coming to
or leaving their moorings, as far as navigation so understood is concerned;
and
(ii) of the obligation to ensure freedom of navigation and equal treatment
of all flags, the European Commission of the Danube being competent, also as
concerns the ports, to exercise the supervision inherent in this obligation;
(3) that it is not necessary to give an answer to the question put under No.
3. [p70]
[196] Done in English and French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of December, nineteen hundred
and twenty-seven, in two copies, one of which is to be placed in the
archives of the Court, and the other to be forwarded to the Council of the
League of Nations.
(Signed) Max Huber,
President.
(Signed) �. Hammarskj�ld
Registrar.
[197] MM. Nyholm and Moore, Judges, while agreeing in the conclusions
arrived at by the Court, desired to add certain individual remarks, the text
of which follows hereafter.
[198] M. Negulesco, Deputy-Judge, declaring himself unable to concur in the
Court's opinion, and availing himself of the right conferred on him by
Article 71 of the Rules of Court, delivered the separate opinion hereafter
reproduced.
(Initialled) M. H.
(Initialled) A. H. [p71]
Observations by M. Nyholm
[Translation.]
[199] While accepting the result arrived at in the Advisory Opinion, it
seems possible or preferable to look differently at certain parts of the
reasoning and in particular the interpretation given to Articles 6 and 9 of
the Statute of 1921. This interpretation, which affects the various points
in the reasoning, appears not to be of a character that permits the
attainment of clear and definite results.
[200] The Council's question rightly puts in the forefront the following
problem: What is the law in force for the Danube? The river has in fact been
subject to successive regulations which leave some doubt as to the law
definitely established at the present time.
[201] Historically speaking, it is to be noted that in 1856, after the
Crimean War, the European Commission was set up, to operate from the mouths
to Isaktcha. That is the first stage.
[202] Then in 1878, after the Russo-Turkish War, the field of activities of
the Commission was, by the Treaty of Berlin, extended to Galatz.
[203] This second stage was followed by a third, denoted by the Treaty of
London of 1883 (continuation of the Treaty of Berlin). At London the
territorial jurisdiction was extended as far as Braila.
[204] The fourth and, so far, last decision is found in the Treaty of
Versailles of 1919. This Treaty fixed no exact point for the territorial
jurisdiction of the European Commission, � neither Galatz nor Braila. On the
contrary it provided that the jurisdiction should be established and
exercised as in the past.
[205] The Treaty in fact provided that the powers of the European Commission
should be the same as formerly, from both a territorial and material point
of view. As regards territorial jurisdiction, it is provided that from the
point where the jurisdiction of the European Commission ceases, the Danube
shall be placed under the administration of an international commission,
which was a new creation of the Treaty of Versailles. It is [p72] to be seen
from the text of the Treaty that the two Commissions completed one another
without any interval. As regards the nature of the jurisdiction, it is
provided that "the European Commission reassumes the powers it possessed
before the war". Finally the Treaty provided for the drawing up of a
Statute; this latter, which was signed on July 23rd, 1921, constitutes, up
to the present time, the last act relating to the Danube.
[206] From the facts above mentioned it results that the law in force at the
present time consists of the Treaty, as fundamental basis, and the Statute
which emanates therefrom.
[207] As regards treaties prior to the Treaty of Versailles, there seems to
be no doubt that they have been abolished. In fact, at the moment when the
Treaty of Versailles was drafted, the position was an entirely new one, all
the past having been cleared away. The Great War had interrupted the work of
the European Commission, the archives of which had been scattered in
different countries, and no regular working of that body had been in
existence. Secondly, the situation of the riparian States had to a great
extent changed. The new frontiers involved a modification of the rights of
riparians. Finally, the complete political alteration gave a new general
basis to the fluvial regime of Europe. Further, the legal situation was
changed: new mandate-givers, namely, all the Allied or Associated Powers,
had come on the scene to settle the question of the Danube. This latter,
being connected with the general regulation of international river transport
in Europe, had acquired an international character more extensive than in
the past. The decisions previously taken, between 1856 and 1883, by a more
limited circle of Powers, had no longer any place beside the new decisions
emanating from the group formed by almost the totality of nations, amongst
whom were included, moreover, to a great extent, the Powers having
participated in previous treaties. The consequence of this situation is that
the Treaties of Berlin and London no longer counted, and that only the
Treaty of Versailles could be invoked. It must however be pointed out that
if prior treaties � which in principle have disappeared � can recover any
importance, this is only from the fact that the Treaty of Versailles refers
to the situation existing in the past. It is [p73] thus indirectly that
reference might possibly be made to previous treaty provisions.
[208] If we look in particular to Article 1 of the Treaty of London of 1883,
which extended the jurisdiction of the European Commission as far as Braila,
and thus apparently solved the question at present in dispute, we note that
this Treaty, by itself, no longer exists. The sole basis is now the Treaty
of Versailles.
[209] Beside this latter Treaty there is its emanation, the Statute of 1921.
This Statute however, in relation to the Treaty, can only be regarded as a
regulation compared with a law. The mandate given by the Allied and
Associated Powers to a limited number of Powers, assembled in conference at
Paris, does not contain an authorization to depart from the principles and
rules contained in the Treaty. Although the Conference had the power to
amplify these rules, any decision taken by it in contradiction of the Treaty
would be null, and might so be regarded by each of the Powers signatory of
the Treaty of Versailles.
[210] It is therefore the Statute � and, in case of doubt, principally the
Treaty of Versailles � which is the basis when a reply is to be given to the
question in dispute, namely, whether the European Commission possesses any
jurisdiction on the Galatz-Braila sector.
[211] The rules governing jurisdiction are found in Articles 5 and 6 of the
Statute. These articles appear to reproduce faithfully the text of the
Treaty. But the Court's Opinion gives to Article 6 an interpretation which
does not seem admissible. This interpretation overturns, in fact, all the
principles of the Treaty, by declaring that Article 9, combined with Article
6, fixes Braila as terminus, whereas the Treaty, for the fixing of limits,
refers to the past without any precise determination.
[212] In interpreting the Statute, in order to avoid confusion, it is
particularly important to distinguish clearly between the territorial
competence (Article 6) and the nature of the competence (Article 5) of the
Commission.
[213] The first question put by the Council is whether the European
Commission has any jurisdiction in the Galatz-Braila sector. What is asked
is thus a fixing of the territorial jurisdiction (Article 6). The second
question is, what is that [p74] competence; it therefore involves a fixing
of the nature of the jurisdiction (Article 5).
[214] It may be well to quote these two articles, in order that they may be
kept in mind.
[215] Territorial jurisdiction: Article 6. "La comp�tence de la Commission
europ�enne s'�tend, dans les m�mes conditions que par le pass� et sans
aucune modification � ses limites actuelles, sur le Danube maritime,
c'est-�-dire depuis les embouchures du fleuve jusqu'au point o� commence la
comp�tence de la Commission internationale. [FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] [ Translation.] "The authority of the European Commission extends,
under the same conditions as before, and without any modification of its
existing limits, over the maritime Danube, that is to say, from the mouths
of the river to the point where the authority of the International
Commission commences."
---------------------------------------------------------------------------------------------------------------------
[216] Nature of the jurisdiction: Article 5.
"La Commission europ�enne exerce les pouvoirs qu'elle avait avant la guerre.
Il n'est rien chang� aux droits, attributions et immunit�s qu'elle tient des
trait�s, conventions, actes et arrangements internationaux relatifs au
Danube et � ses embouchures [FN2].
---------------------------------------------------------------------------------------------------------------------
[FN2] [ Translation.] "The European Commission retains the powers which it
pos�sessed before the war. No alteration is made in the rights, prerogatives
and privileges which it possesses in virtue of the treaties, conventions,
international acts and agreements relative to the Danube and its mouths."
---------------------------------------------------------------------------------------------------------------------
[217] As regards territorial jurisdiction, it is therefore to be noted that
no limit is fixed in Article 6. It may be recalled that there was no
question of fixing a limit at any precise kilometre-stone between Galatz and
Braila. There was never any question of other limits than either Galatz or
Braila. Article 6 therefore merely confirms that the Treaty (and the
Statute) did not wish to fix either Galatz or Braila, but that they left the
situation as it existed in practice theretofore. The limit of the European
Commission's jurisdiction was therefore an unknown point, and could only be
fixed after it had been determined by an enquiry into the effective exercise
of jurisdiction in the past. [p75]
[218] In order to understand this situation, which may appear curious,
account must be taken of historical development. In 1856, Isaktcha was fixed
as limit, in 1878 Galatz, in 1883 Braila.
[219] Taken literally, under the decision of 1883, the question appears
simple. But it must be remembered that beside these treaties there came into
play a series of acts of navigation elaborated successively, based on the
treaties and intended to ensure their execution by provisions of detail.
These regulations, so to speak, lived their own life, being sometimes not in
harmony with the text of the treaties.
[220] Thus the Navigation Regulations of March 19th, 1881, may be regarded
as a sequel to the Treaty of Berlin, which fixed Galatz as limit.
Nevertheless, the Regulations, in numerous articles on various subjects,
provide for a service of the European Commission that shall go as far as
Braila, thus including that sector. Similarly, after the Treaty of London
which had extended jurisdiction as far as Braila, the Navigation Regulations
which followed continued to indicate Galatz as limit, with a definite
service extending to Braila. The same is again the case in the last
Navigation Regulations of 1923, subsequent to the Treaty of Versailles and.
the Statute.
[221] Having regard to the above situation, it may be possible to understand
what happened at the Peace Conference before the drafting of the article of
the Versailles Treaty concerning the Danube, and also the situation at the
Paris Conference, at the time when paragraph 6 was to be drafted.
[222] The fixing of "Braila" in the Treaty of London in 1883 had produced no
effect. All had remained as hitherto. Since the system applied in fact had
worked well, it was most probably desired to make that situation permanent.
It was not, however, intended to produce a further change between Galatz and
Braila, by expressly coming back to the term "Galatz", and for that reason
the limit finally adopted was only "the past".
[223] The intention was therefore to perpetuate the system which had given
satisfaction for more than half a century, without fixing any definite
limit. Against this decision, which is quite clearly expressed both in the
Treaty of Versailles and in the Statute, it does not seem possible to admit
that [p76] Article 9 of the Statute definitely fixed Braila as terminus.
This interpretation is based on two facts: (1) the European Commission and
the International Commission complete one another and their spheres of
activity touch; (2) Article 9 of the Statute provides that "the authority of
the International Commission extends over the Danube between Ulm and
Braila".
[224] The conclusion arising from a cursory interpretation is that the
International Commission ends at Braila and that therefore the European
Commission goes as far as Braila.
[225] This interpretation is in conflict with Article 6 and with the
historical basis of that article.
[226] It is beyond dispute that that article fixes neither Braila nor
Galatz, but refers to a past which must be elucidated by an enquiry. Article
6 introduces a factor so far unknown, an x, and Article 9 of the same
Statute cannot therefore fix Braila. A law cannot set up a rule in one
article and, changing its mind, a contrary rule in the next article. Any
such interpretation must be ill-founded. Article 6 provides that the
jurisdiction shall extend "under the same conditions as before and without
any modification of its existing limits". It is possible that a
consideration of the previous situation may indicate Galatz as limit. In
such a case it is impossible that Article 6 should fix Galatz and Article 9
Braila.
[227] Further, the point of view developed in the Court's Opinion does not
seem to be in conformity with the historical development leading up to the
text of Article 6. When that article was framed, in accordance with the
Treaty of Versailles, the moment had come to decide whether or not it was
desired to maintain the fixing of the limit at Braila, as in the previous
Treaty. A text was adopted which was the expression of a de facto situation
which it was desired to prolong. The Statute, in Article 6, omitted to fix
Braila as limit, and it cannot therefore reasonably do the contrary in
Article 9.
[228] Further, it is to be seen that, if the territorial jurisdiction was
fixed at Braila by the Statute, there was no further need to deal with the
main question in dispute. All doubt had [p77] disappeared; but it is seen
that none the less the question remains unsolved, as is shown by the ever
growing mass of documents.
[229] Finally, any attempt to eliminate the words "under the same conditions
as before, and without any modification of its existing limits" remains
fruitless. The Court's Opinion appears to understand them as indicating
different degrees of jurisdiction; but it thereby enters into the other
subject, namely, the nature of the jurisdiction (Article 5). Article 6
relates to territorial jurisdiction, and provides that no modification shall
be made in the existing limits. A limit must be definitely fixed, and the
contention which the Opinion appears to uphold as regards partial
jurisdiction relates to the nature of the jurisdiction; it therefore has
nothing to do with the question of limits. There remain to be explained the
words "and Braila" in Article 9, which form the basis of the interpretation
in the Court's Opinion, which says that the jurisdiction of the
International Commission extends between Ulm and Braila. In this connection,
it is to be noted that Article 9 is placed under Heading III, entitled
"Fluvial Danube", and only relates to that Heading, whereas Article 6 is
under Heading II, "Maritime Danube". It is said in the Statute that the two
Commissions touch one another, but it is nowhere said that the jurisdiction
of the International Commission cannot go beyond Braila towards the mouth.
The argument of the Opinion that Braila is henceforth definitely fixed as
limit leads to results which are hardly acceptable.
[230] The past history of Article 6 must at a certain moment be elucidated.
If, for instance, investigations led to the conclusion that the European
Commission's jurisdiction definitely stopped in the past at Galatz, there
would be a gap between Galatz and Braila. The new situation involved by the
setting up of the International Commission has for result that, in the case
indicated, the jurisdiction of that latter Commission would automatically
extend to Galatz, and a partial jurisdiction over the maritime Danube
(Heading II) would be added to its jurisdiction over the fluvial Danube
(Heading III).
[231] It is also to be noted that Article 9 does not speak of jurisdiction
as far as Braila, but merely says that the jurisdiction [p78] extends over
the Danube between Ulm and Braila. The explanation of that clause is in
reality to be found in the fact that, under Heading III, which relates
solely to the fluvial Danube, it was desired to indicate the western,
upstream limit, which was fixed at Ulm.
[232] Finally, it is to be remarked that against the above interpretation of
Article 6 it is not possible to refer to Article 3 of the Statute: this
latter article provides that the European Commission and International
Commission shall extend respectively over the maritime and fluvial Danubes,
which, according to the admitted expression, touch at Braila. In such a case
the article would be contrary to the Treaty of Versailles; but it should
moreover be observed that in the article is found the express reservation:
jurisdiction "as defined" in Chapters II and III. The text of Article 6 and
its historical basis show therefore that it was conceived in the hope of
establishing a rule enabling the practice which had been peacefully followed
in the past to be continued, but that hope was doomed to disappointment. Two
insignificant incidents led to the raising of the question of limits, and
the time arrived when, inevitably, it became necessary to bring to an end
the situation of friendly cooperation which had hitherto obtained. But the
desire of a single one of the Parties made it imperative that a solution
should be arrived at. This could only be done by holding an enquiry. This
reason amongst others led to the appointment of the Special Committee and
characterized the work of that Committee. The investigations of the
Committee and in general contents of the dossier have shown that in the past
the activities of the European Commission did in fact extend as far as
Braila; the reply to the first question therefore is that � as concerns the
territorial extent of the powers � the European Commission also exercised
its functions in that sector.
[233] As regards the nature of its activities (second part of the Council's
principal question: nature of the powers, Article 5), the investigations of
the Committee have also made it possible to reach the general conclusion
that the European Commission exercised powers below Galatz which may be
divided into four categories: (1) maintenance of the navigable channel, (2)
pilotage, (3) regulation of navigation, (4) jurisdictional powers. [p79]
[234] That the European Commission exercised in the Galatz-Braila sector the
first three categories of powers is sufficiently proved by the documents
before the Court. As regards the fourth category, the Committee has
satisfactorily established that in fact the European Commission did exercise
jurisdiction in some cases in the sector. In regard to this point, of the
enquiries mentioned by the Committee the only ones which could be taken into
account are those carried out by the Committee itself. Again, the conclusion
of the Committee upon the decisions submitted to it may be accepted as proof
of the exercise of jurisdiction by the European Commission. It follows that,
throughout the disputed sector, the European Commission exercised the same
powers as below Galatz; the investigation of the records of the past
undertaken by the Committee and rendered necessary by Articles 6 and 5
therefore leads to the conclusion that the point where the jurisdictions of
the two Commissions meet is Braila.
[235] Roumania cannot regard this conclusion as a diminution of her
sovereign rights; for the basis of this conclusion is not a kind of
acquisitive prescription in favour of the European Commission, even
supposing that prescription of such a kind were recognized by international
law. On the contrary, the provisions of the Treaty of Versailles (and of the
Statute) which make it necessary to fix the limit by ascertaining the facts
of the past, are simply the outcome of the voluntary adherence of Roumania,
together with all the other Allied and Associated Powers, to the Treaty of
Versailles. And again, the interest which Roumania would have to maintain
its sovereign powers in the sector, if the European Commission's authority
stopped at Galatz, is no longer the same as would appear to have been
imagined at the beginning of the dispute. For, in consequence of the
creation of the International Commission, the sector would not come under
the full exercise of Roumanian sovereignty; that sovereignty would be
limited by the authority of the International Commission, which practically
speaking is not far short of that of the European Commission.
(Signed) D. G. Nyholm. [p80]
Observations by Mr. Moore
[236] While concurring in the conclusions and generally in the reasoning of
the Court's Opinion, which stands as a monument to the laborious care with
which all views and suggestions have been considered, I desire to say that,
in my opinion, the first and main question, whether "under the law at
present in force" the European Commission has the same powers from Galatz to
Braila as it has below Galatz, shrinks on legal analysis into a small
compass and is essentially simple.
[237] That the law at present in force is first of all the Definitive
Statute of July 23rd, 1921, a treaty signed and ratified by all the Parties
to the present controversy, is undisputed; and of this treaty, as the merest
reading of it will show, the manifest purpose is to assure, by means of two
international bodies, respectively called the European Commission and the
River Commission, the international control of the navigation of the entire
navigable course of the Danube down to and into the sea. While Article 6
states that the jurisdiction (competence) of the European Commission, which
administers the sector navigable for sea-going ships, extends up to the
point where the jurisdiction of the River Commission begins, and Article 9
states that this point is Braila, Article 39 stipulates for all practicable
uniformity and consistency of administrative conditions over the entire
internationalized stream, above Braila as well as below. It goes without
saying that these objects never can be attained if the physical continuity
of international control is interrupted, or if legal variety is to prevail
in each sector. There is no room in either aspect for an "excluded middle".
[238] It is also undisputed that, so far as concerns the European
Commission, the very foundation of the Definitive Statute is the retention
by the Commission of the powers it had before the war. The Treaty of
Versailles, in pursuance of which the [p81] Statute was made, expressly
provides that the European Commission "reassumes the powers it possessed
before the war". Article 5 of the Statute declares in identical terms that
the Commission retains the powers it had before the war, and Article 6, in
designating the upstream limit of the Commission's powers, speaks of its
jurisdiction (competence) as remaining in the same conditions as in the past
and without any modification of its actual limits. When, therefore, the
Statute designates Braila as the point to which the jurisdiction of the
European Commission extends, the Statute itself unequivocally and
conclusively fixes Braila as the place to which the jurisdiction of the
Commission extended before the war. The question whether this extension was
based on "tolerance", or on the Treaty of London of 1883, is now immaterial.
No matter what the pre-war basis of the extension may have been, the Statute
has supplied a basis of legal permanence.
[239] It is now contended, however, that the European Commission's
jurisdiction (competence) between Galatz and Braila is not the same as that
between Galatz and the sea, and that, while the Commission has full
jurisdiction below Galatz, it has, between Galatz and Braila, only technical
powers (competence technique) and not juridical powers (competence
juridique). But we look in vain in the Definitive Statute for any such
distinction; nor is it to be found in any of the treaties, conventions,
international acts or arrangements which the Statute confirms. It is not
mentioned in any legal instrument. It is indeed sought to be injected into
the case under cover of the clause in Article 6 of the Statute, which speaks
of the maintenance of past jurisdictional limits. But this clause neither
mentions nor even remotely hints at any local severance of juridical from
technical powers; and, when a definite legal basis for the distinction is
required, the concrete response is the so-called Interpretative Protocol, a
legally unclassified paper, which, in spite of its name, is neither
incorporated nor referred to in the Interpretative Clauses annexed to the
Statute and ratified as a part of it. [p82]
[240] But even the "Interpretative Protocol" does not speak of "technical"
powers and "juridical" powers. On the contrary, while saying that by Article
6 of the Statute no modification is made in the previous conditions or
limits of the administrative regime, it declares that the powers of the
European Commission must continue to be exercised, in the same manner as in
the past, in conformity with the treaties, international acts and the
regulations to which the present Parties to the Commission have adhered, and
that the Commission shall continue, as in the past, to take care of the
navigable channel between Galatz and Braila and its pilotage service. The
alleged distinction between juridical powers and technical powers is nowhere
mentioned and, when the argument is tested, the entire residuum is the claim
that the express mention of the power to take care of the navigable channel
and its pilotage service is to be interpreted as excluding the exercise of
any juridical powers.
[241] This claim, however, at once encounters two fundamental objections.
The first is, that the claim is completely at variance with the plan of
internationalization as it has existed on the Rhine and other rivers since
1815 and on the Danube since 1856. The adoption of this plan had no
connection whatever with any capitulatory or extraterritorial system, no
such system having existed among the States on the Rhine. The organization,
with the assent and co-operation of the territorial sovereign, of a special
service, international in character, with combined juridical and technical
powers, constituted a fundamental part of the original plan, solely because
it was conceived to be the appropriate means of assuring not only
consistently improved conditions of navigation, but also freedom of
navigation for all flags under a uniform law uniformly administered. The
second objection is that, by the very terms of the various international
instruments under which the Interpretative Protocol states that the European
Commission is to continue to exercise its powers, the Commission's juridical
powers are directly associated with the care of the navigable channel and
the pilotage service, no less than with its other activities. Nothing can be
plainer than this upon the face of all the international [p83] agreements
relating to the Danube, including the Public Act of Galatz of 1865, the
Additional Act of 1881, and all the Regulations of Navigation and Police
down to the present time. In order, therefore, to establish the suggested
distinction in the legal situation between Galatz and Braila and the sector
between Galatz and the sea, it would be necessary to show that the juridical
powers in terms conferred upon the Commission by international agreements of
undisputed validity have been renounced or abandoned, either expressly or by
implication. No such proof has been adduced, and to argue that, in its
absence, the European Commission now possesses above Galatz no juridical
powers, is in effect to maintain that the specific provisions of the
Definitive Statute, and of the previous international acts which it
confirms, have been impliedly revoked by what the Interpretative Protocol
failed to say.
[242] The law at present in force is, in my judgment, precisely set forth in
the brief statement just made. The theory that the words "actual limits", in
Article 6 of the Definitive Statute, may be held to mean that the force, the
effect, and even the survival of all other provisions, including those that
declare its fundamental purpose, and those of the prior international
agreements which Article 5 unreservedly confirms, must in future be
contingent on affirmative proof, especially in the form of penal sentences,
that each particular power conferred on the Commission not only was actually
exercised, but was exercised in this, that, or the other sense, is hardly
susceptible of legal discussion. On this theory, obedience to the law, or
indeed the absence of proofs of its violation, would have the effect of
annulling it. The supposition that the contracting Parties implanted in the
Statute, consciously or unconsciously, a disintegrant so subtle and
extraordinary, is, from the point of view of legal interpretation, hardly
conceivable.
(Signed) J. B. Moore. [p84]
Dissenting Opinion by M. Negulesco
[Translation.]
[243] I, the undersigned, am unable to concur with the opinion of the
majority, on the following grounds:
[244] By a Resolution of December 9th, 1926, the Council of the League of
Nations requests the Court to give an advisory opinion upon three questions
relating to the jurisdiction of the European Commission of the Danube in
accordance with the terms of an Agreement which was entered into on
September 18th, 1926, between France, Great Britain and Italy, on the one
hand, and Roumania on the other, without prejudice to the negotiations at
present proceeding between these Powers before the Technical and Advisory
Committee of the League of Nations.
[245] The questions submitted to the Court for advisory opinion are as
follows:
"(1) Under the law at present in force, has the European Commission of the
Danube the same powers on the maritime sector of the Danube from Galatz to
Braila as on the sector below Galatz? If it has not the same powers, does it
possess powers of any kind? If so, what are these powers? How far upstream
do they extend?
Should the European Commission of the Danube possess either the same powers
on the Galatz-Braila sector as on the sector below Galatz, or certain
powers, do these powers extend over one or more zones, territorially denned
and corresponding to all or part of the navigable channel to the exclusion
of other zones territorially denned, andcorresponding to harbour zones
subject to the exclusive competence of the Roumanian authorities? If so,
according to what criteria shall the line of demarcation be fixed as between
territorial zones placed under the competence of the European Commission and
zones placed under the competence of the Roumanian authorities? If the
contrary is thecase, on what non-territorial basis is the exact dividing
line between the respective competence of the European Commission of the
Danube and of the Roumanian authorities to be fixed?
Should the reply given in (I) be to the effect thatthe European Commission
either has no powers in the [p85] Galatz-Braila sector, or has not in that
sector the same powers as in the sector below Galatz, at what exact point
shall the line of demarcation between the two regimes be fixed?"
[246] The first question comprises the two following points:
(a) Has the European Commission of the Danube, under the "law at present in
force", the same powers on the Galatz-Braila sector as on the sector below
Galatz?
(b) If it has not the same powers, does it possess powers of any kind? If
so, what powers? How far upstream do they extend?
[247] The second and third questions are subsidiary in character; one
consists in an endeavour to find the dividing line between the powers of the
European Commission and those of the Roumanian territorial authorities if
the two jurisdictions do not apply to the same part of the river; the other,
in an endeavour to determine whether, if the two jurisdictions apply to the
same part, it is possible to find criteria for fixing a line of demarcation
between the two r�gimes.
[248] The "law in force" in conformity with which the Court must reply in
the first place to the questions submitted is the Statute of the Danube of
July 23rd, 1921.
[249] Articles 6 and 9 of the Statute, when taken together, lead to the
inference that the jurisdiction of the European Commission extends from
above Braila down to the mouths of the river. But Articles 5, 6 and 41 of
the Statute show that, in order to determine the limits of the jurisdiction
of the European Commission upon the sector in dispute, the de facto
situation before the war must be considered, as well as the international
treaties and instruments relating to the Danube and its mouths.
***
[250] The fundamental principles relating to freedom of navigation upon
rivers which form the boundaries between or cross several countries, and
which are called "international rivers", were: laid down in the provisions
of the Act of the Congress of Vienna, from Article 108 to 117 inclusive.
[251] In Article 109 it is stated that navigation "shall be entirely free,
and shall not, in respect to commerce, be prohibited [p86] to any one, it
being understood that the regulations established with regard to the police
of this navigation shall be respected, that they will be framed alike for
all, and as favourable as possible to the commerce of all nations".
[252] Article 116 is as follows:
"Everything expressed in the preceding articles shall be settled by a
general arrangement, in which there shall also be comprised whatever may
need an ulterior determination. The arrangement once settled shall not be
changed but by and with the consent of all the States bordering on rivers,
and they shall take care to provide for its execution with due regard to
circumstances and locality."
[253] In the Treaty of Paris of March 30th, 1856, the principles sanctioned
by the Act of the Congress of Vienna are applied to the Danube. Article 15
provides that:
"The Act of the Congress of Vienna, having established the principles
intended to regulate the navigation of rivers which separate or traverse
different States, the contracting Powers stipulate among themselves that
those principles shall in future be equally applied to the Danube and its
mouths. They declare that this arrangement henceforth forms a part of the
Public Law of Europe, and take it under their guarantee."
[254] The Treaty of Paris sets up two Commissions on the Danube, one being
the European Commission, down to the mouths of the Danube (Article 16), and
the other being the River Commission for the remaining part of the river
(Article 17).
[255] The European Commission, consisting of the seven Great Powers who
signed the Treaty of Paris, namely Great Britain, Austria, France, Prussia,
Russia, Sardinia and Turkey, was "charged to designate and to cause to be
executed the works necessary below Isaktcha, to clear the mouths of the
Danube, as well as the neighbouring parts of the sea, from the sands and
other impediments which obstruct them, in order to put that part of the
river and the said parts of the sea in the best possible state for
navigation".
[256] The River Commission charged with securing the navigation of the river
consisted of the riparian States, namely: Austria, [p87] Bavaria, the
Sublime-Porte and Wurtemberg, to whom were to be added Commissioners from
the three Danubian Principalities, whose nomination should have been
approved by the Porte.
[257] Under the Treaty of Paris, the powers of the European Commission are
of a purely technical character, and it has never been claimed that this
implied powers of a juridical character. The latter powers belonged to the
territorial authorities. Article 8 of the Public Act of Galatz of November
2nd, 1865, leaves no doubt on this point.
[258] The powers of the European Commission, which were to have come to an
end in 1858, were successively prolonged. The London Conference of 1871
prolonged these powers for a further period of twelve years up to April
24th, 1883.
[259] The Treaty of Berlin of July 13th, 1878, concluded between Germany,
Austria-Hungary, France, Great Britain, Italy, Russia and the Ottoman
Empire, extended the powers of the European Commission, on which Roumania
was represented, from Isaktcha as far as Galatz, and it laid down that these
powers should be exercised "in complete independence of the territorial
authority" (Article 53).
[260] It was further specified in Article 53 that treaties, arrangements,
acts and decisions relating to the European Commission's rights, privileges,
prerogatives and obligations were confirmed.
[261] In pursuance of Article 54, the Powers were to come to an
understanding, one year before the expiration of the term assigned for the
duration of the European Commission, as to the "prolongation of its powers
or the modifications which they may consider necessary to introduce".
[262] Article 55 provided that the regulations respecting fluvial
navigation, from the Iron Gates to Galatz, should be drawn up by the
European Commission, assisted by delegates of the Riverain States.
[263] In order to insure the execution of the powers of the European
Commission, it was specifically stated in Article 52 that the stationnaires
of the Powers at the mouths of the Danube might ascend the river as far as
Galatz.
[264] For the purpose of harmonizing the Pubhc Act of Galatz of 1865, which
regulated the powers of the European Commission [p88] with the new
provisions of the Treaty of Berlin, Germany, France, Great Britain, Italy,
Roumania, Russia and Turkey, on May 28th, 1881, signed at Galatz the
Additional Act to the Public Act of Galatz of 1865. In the first article of
this Act it is specifically laid down that "the rights such as they have
been established by the treaties as well as by the acts prior [pto the
Treaty of Berlin] shall continue to govern its relations with the new
Riverain States and their effect shall extend as far as Galatz".
[265] The signatory Powers of the Treaty of Berlin concluded the Treaty of
London of March 10th, 1883, without the co-operation of Roumania. By that
Treaty the jurisdiction of the European Commission was extended from Galatz
to Braila (Article 1) and its powers were prolonged for a period of
twenty-one years, dating from April 24th, 1883. At the expiration of this
period the powers of the Commission were to be continued in force by tacit
prolongation (tacite reconduction).
***
[266] It has been asserted that the extension of the European Commission's
powers as far as Braila was proclaimed by the Treaty of London of 1883 and
that if Roumania, which had been a sovereign State since 1878, was not
summoned to take part in the Conference, this was because the Treaty of
Berlin gave the Powers the right to act without the co-operation of
Roumania.
[267] It is beyond doubt that, at the time of the Treaty of Berlin, Roumania
was not a Turkish province, but a State under Turkish suzerainty. This
results from Articles 22 and 23 of the Treaty of Paris.
[268] By virtue of her rights of suzerainty, Turkey might represent Roumania
as regards foreign relations. By the Treaty of San Stefano, March 3rd, 1878,
Turkey, having been defeated by Russia and Roumania, agreed in Article 5 to
abandon her rights as suzerain. The Treaty of San Stefano was submitted for
ratification to the Powers assembled at the Conference of Berlin, in 1878.
[p89]
[269] If the Treaty of San Stefano changed Roumania's position, she should
have been invited to take her seat with the other Powers on a footing of
equality. If, on the contrary, in spite of that Treaty, Roumania was
considered to be under Turkish suzerainty, she was represented by the
Sublime-Porte at the Berlin Conference, as regards the Danube question which
relates to her territory, and, having become completely independent in
virtue of Article 43 of the Treaty of Berlin, she should have been invited
to the London Treaty.
[270] It is true that the Treaty of Berlin imposed on Roumania conditions
affecting her sovereignty; but these conditions were laid down in Articles
43, 44 and 45 of the Treaty.
[271] "Article 43: The High Contracting Parties recognize the independence
of Roumania, subject to the conditions set forth in the following articles."
[272] Article 44 proclaims the principle that difference of religious belief
shall not constitute a disqualification from enjoying civil and political
rights, and Article 45 obliges Roumania to cede to Russia the territory of
Bessarabia.
[273] It cannot be said that Roumania's sovereignty was further diminished
by the expression "modifications" (of its powers), in Article 54 of the
Treaty of Berlin, which expression leaves it to be supposed that the Powers
had received a mandate to extend the territorial jurisdiction of the
European Commission beyond the limits fixed at Galatz by the Treaty itself.
[274] But even if it be supposed that the signatory States received such
powers from Article 54 of the Treaty of Berlin, it will be easy to show that
their power to extend the jurisdiction of the European Commission over the
disputed sector Galatz-Braila could not be exercised without Roumania's
consent.
[275] Article 54 is as follows:
"One year before the expiration of the term assigned for the duration of the
European Commission, the Powers shall come to an understanding as to the
prolongation of its powers, or the modifications which they may consider
necessary to introduce."
[276] The words "prolongation of its powers" refer to a prolongation in
time. The word "modifications" (of its powers) relates [p90] to the whole of
the duties which the European Commission had to fulfil. This word does not
relate to a. territorial extension of the Commission's jurisdiction. But
even if it did, it would then have a double meaning and, in case of doubt,
the interpretation must be in favour of sovereignty. Article 54 of the
Treaty of Berlin therefore conferred a two-fold power on the Powers, that of
prolonging the duration of the European Commission and that of modifying the
whole of the Commission's duties. The word "modifications" (of its powers)
therefore does not relate to the territorial extension of jurisdiction.
[277] This is the interpretation to be given to Article 54 taken by itself.
But in order to determine the true meaning and scope of Article 54 of the
Treaty, of Berlin, that article must be considered, not alone, but with the
Treaty as a whole, having regard to the texts with which it is closely
connected and which form with it an indivisible whole. Article 54 is closely
connected with Articles 52, 53 and 55 of the Treaty of Berlin.
[278] Article 53 declares that the European Commission shall be maintained
henceforth as far as Galatz, and makes a place for Roumania on the
Commission. This provision is of a definitive character, for it relates to
Roumania's right to belong to the Commission, whose functions will be
extended "as far as Galatz", and also to the principle laid down in favour
of the European Commission that it shall act in complete independence of the
territorial authority.
[279] Article 52 moreover confirms this view. After laying down the
principle of free navigation on the Danube, the High Contracting Parties
declare that "no vessel of war shall navigate� below the Iron Gates with the
exception of vessels of light tonnage in the service of the river police"
reserved for the riparian States; and the article adds: "The stationnaires
of the Powers at the mouths of the Danube may, however, ascend the river as
far as Galatz." It is therefore "as far as Galatz" that the stationnaires
may ascend, in order to provide for the carrying out of the powers conferred
on the European Commission.
[280] The Powers signatory of the Treaty of London did not and could not
modify the provisions of Article 52 of the Treaty of Berlin; the expression
"as far as Galatz" must therefore be of a definitive character. [p91]
[281] Article 55 of the Treaty of Berlin further confirms the definitive
nature of the expression "as far as Galatz". The High Contracting Parties
desired to specify the future method of procedure as regards the drawing up
of regulations for navigation and police on the Danube. This article
distinguishes between two sectors: Iron Gates to Galatz, and below Galatz.
For the first sector it is provided that regulations shall be drawn up by
the European Commission with the assistance of delegates of the riparian
States; for the second sector it is the European Commission that is to issue
the regulations.
[282] If the Treaty of Berlin, which was inspired with the idea of respect
for the sovereignty of the riparian State, declared in Article 55 that the
assent of the territorial authority was necessary for the drafting of
regulations, it is impossible to interpret Article 54 in the sense that the
Treaty of Berlin authorizes the Powers to extend the territorial
jurisdiction of the European Commission over the waters subject to Roumanian
sovereignty without Roumania's consent.
[283] Not only the fact that Roumania was a riparian State prevented the
Powers, in view of Article 55 of the Berlin Treaty, from extending the
European Commission's jurisdiction as far as Braila, but also the fact of
membership of the European Commission granted to Roumania under Article 53
of the Treaty of Berlin, which prevented the Powers assembled at the London
Conference from proceeding without Roumania to extend the powers of the
European Commission in the disputed sector. In this sector Article 55 of the
Treaty of Berlin entrusts the drawing up of regulations to the European
Commission, with the assistance of the riparian Powers; the veto of Roumania
in the European Commission must entirely deprive the proposal inspired by
Austria-Hungary of the character of regulations.
[284] It follows that the Powers assembled in London could not, in Article
VII, adopt the Regulations for Navigation and River Police and Supervision
prepared on June 2nd, 1882, by the European Commission and applicable to
that part of the Danube between the Iron Gates and Braila. The Powers at the
London Conference therefore acted ultra vires and could not in any way
modify the provisions of Article 55 of the Treaty of Berlin, which had fixed
Galatz as the point of separation between the two Commissions. [p92]
[285] Even if it be assumed that, in interpreting Article 54 of the Treaty
of Berlin, the Powers had the right to modify the territorial jurisdiction
of the European Commission without Roumania, they themselves gave the
authoritative interpretation of the meaning and scope of Article 54 of the
Treaty of Berlin, in the Additional Act to the Public Act of Galatz, March.
28th, 1881, signed by Roumania and by the Powers signatory of the Treaty of
Berlin.
[286] Article 1 excludes any interpretation to the effect that the Treaty of
Berlin intended to reserve for the Great Powers, signatories of the Treaty,
alone the right to modify the powers of the European Commission; for that
article would not otherwise have expressly provided that "the rights,
attributes and immunities of the European Commission of the Danube, such as
they have been established by the Treaties of Paris of March 30th, 1856, and
of London of March 13th, 1871, by the Public Act of November 2nd, 1865, as
well as by the acts and decisions prior to the Treaty of Berlin of July
13th, 1878, shall continue to govern its relations with the new Riverain
States, and their effect shall extend as far as Galatz".
[287] Roumania, as a sovereign State signatory of this Act, has the right to
rely on the above provisions as being the authoritative interpretation of
the Treaty of Berlin, and thus fixing the territorial extent of the European
Commission as being "as far as Galatz"., As the result of this Act, no
further modification of the powers of the European Commission is possible
without Roumania's assent.
[288] There would, moreover, be a flagrant violation of the principles of
international law in the fact that Roumania who, under Article 53 of the
Treaty of Berlin, had the same right of veto as other Powers on the European
Commission, should have been excluded from the Conference of London, which
made good the lack of unanimity on the European Commission as regards the
drafting of the regulations for the Iron Gates-Braila sector, by the
unanimity of the Powers assembled in London, and that an endeavour should be
made to impose on Roumania the result of their decision.
[289] If the Treaty of London has no legal value as regards Roumania, the
three Powers are endeavouring to render it binding by maintaining that
Roumania adhered to that Treaty. [p93]
[290] They start from the idea that, if the Treaty of London cannot be
adduced against Roumania, it has, ever since 1883, been non-existent as
regards her, and that, since that date, Roumania has constantly taken her
seat in the European Commission and has therefore implicitly recognized the
existence of the Treaty.
[291] The starting-point of this argument is a false one. Roumania has never
maintained that the Treaty of London is inexistent. She has always
maintained that the Treaty exists between the other Powers, but cannot be
set up as against herself. The fact that Roumania has always been
represented on the European Commission only proves that she agreed as
regards the prolongation in time of the Commission's powers, but that she
never accepted the prolongation of its powers as far as Braila; for the
Powers had no right to take this step, which infringed the sovereignty of
the State.
[292] Moreover, Article I of the Treaty of London is closely connected with
Article VII of that Treaty:
Article I: "The jurisdiction of the European Commission of the Danube is
extended from Galatz to Braila."
Article VII: "The Regulations for Navigation, River Police and
Superintendence, drawn up on June 2nd, 1882, by the European Commission of
the Danube, assisted by the delegates of Servia and Bulgaria, are adopted in
the form annexed to the present Treaty, and declared applicable to that part
of the Danube which is situated between the Iron Gates and Braila."
[293] It is beyond dispute that Roumania never adhered to Article VII. It
must therefore be shown that Roumania adhered to Article I, without adhering
to Article VII, with the consent of all the Powers.
[294] It has been shown historically that Article VII was introduced in
favour of Austria-Hungary, which, in exchange for the advantages conferred
by that article, had consented to Article I which declared that the powers
of the European Commission were extended. Roumania could not adhere to
Article I without adhering to Article VII, for she would have [p94] met with
the opposition of Austria-Hungary. It being impossible to obtain the
agreement of all the Powers as to the existence of Article I independently
of Article VII, it cannot be concluded that Roumania adhered to that
article.
[295] The three Powers have further endeavoured to prove that Roumania
adhered to the Treaty of London, not directly but indirectly, in signing the
so-called Treaty of Bessarabia, by which that Roumanian province, detached
from Roumania by Russia under the Treaty of Berlin, again returned to
Roumania.
[296] By Article III of the Treaty of London of 1883, the Kilia or northern
branch of the Danube was removed from the jurisdiction of the European
Commission and placed under that of Russia. By Article 7 of the Treaty of
1920 relating to Bessarabia, the Kilia branch was given back to the European
Commission:
Article 7: "The High Contracting Parties agree that the arm of the Danube
called the Kilia arm shall pass under the jurisdiction of the European
Commission of the Danube."
[297] It has been argued that, by signing the so-called Treaty of
Bessarabia, Roumania recognized the validity of the Treaty of London. This
conclusion takes no account of the fact that Roumania, in signing the Treaty
of 1920, became the successor of Russia on the Roumanian territory of
Bessarabia; and, since the Treaty of London of 1883 was binding as regards
Russia, the Kilia arm came back to Roumania entirely free from the
jurisdiction of the European Commission. Roumania, not being willing to
benefit even indirectly by the provisions of the Treaty of London which she
had always repudiated, signed Article 7 of the Treaty of 1920 in order to
re-establish the jurisdiction of the European Commission over the mouths of
the Danube in conformity with the Treaty of Berlin. [p95]
***
[298] It has been sought to explain that independently of Roumania the
Treaty of London possesses legal force as being an application of the system
adopted by the Concert of Europe which left to the Great Powers alone the
task of deciding the principal affairs of Europe.
[299] The Concert of Europe has always been regarded as a political system
and has never been considered as a legal organization; in other words, the
decisions of the Great Powers, met together as the Concert of Europe, have
sometimes been able to command respect by reason of the power behind these
decisions, but they have never been held to be legally binding upon States
not represented in the Concert.
[300] The Protocol of November 15th, 1818, of the Congress of
Aix-la-Chapelle reserves to all States the right to take part in conferences
which concern their special interests. That is an application of the
principle of the Congress of Vienna, which has been reaffirmed successively
by the Treaties of Paris and Berlin.
[301] If the only object of the Conference of London had been to extend the
powers of the European Commission in point of time, it might be argued that
the Powers which were Parties to the Treaty of Berlin could alone take part
in the Conference of London, because Article 54 of that Treaty only alludes
to the signatory Powers.
[302] But since the Conference of London considered it necessary
territorially to extend the powers of the European Commission by making its
authority reach as far as Braila, it was necessary that Roumania, who was
entitled to sit upon this Commission under Article 53 of the Treaty of
Berlin, should be summoned to take part in the London Conference with the
right to vote.
[303] That such were the principles of the public law of Europe at the time
of the Treaty of London, is confirmed by the preliminary acts of the
Conference and by the preparatory work.
[304] The letter of December 11th, 1882, sent by Lord Granville, Secretary
of State for Foreign Affairs, to H.B.M.'s Embassies runs as follows: [p96]
"London, December 11th, 1882.
Roumania not having been a Party to the Treaty of Berlin cannot, as of
right, claim to have a seat in any conference convened for the consideration
of one of the articles of that Treaty. But by the 53rd Article she became a
member of the European Commission of the Danube, and it would therefore seem
just that she should be placed in the most favourable position for stating
her views at any conference which may meet, in compliance with the
invitation which Her Majesty's Government have made to the Powers, for the
consideration of certain questions connected with the navigation of the
Danube. When, therefore, you communicate to the Government to which you are
accredited my immediately preceding despatch, you will intimate
confidentially that, whilst not in any way wishing to anticipate the
decision of the Powers in Conference on any application from Roumania to be
represented at such an Assembly, Her Majesty's Government would be glad to
learn that the Government would be favourably inclined to Roumania being
invited by the Powers when assembled in Conference to send a representative
to attend its meetings on the same footing as those of the Powers
signatories of the Treaty of Berlin.
I am, etc.
(Signed) Granville."
[305] Earl Granville, therefore believed that Roumania, who was a member of
the European Commission, should be summoned to attend the Conference of
London on a footing of equality with the Great Powers, and this opinion was
shared by the other cabinets of Europe.
[306] The letter of M. Duclerc, French Foreign Minister, to Viscount Lyons,
British Ambassador in Paris, is as follows: [FN1] [p97]
"Paris, le 18 d�cembre 1882.
"Par sa lettre confidentielle du 13 de ce mois, Votre Excellence a bien
voulu appeler mon attention sur la situation particuli�re de la Roumanie,
qui, en vertu de l'article 53 du
Trait� de Berlin, a �t� admise � se faire repr�senter � la Commission
europ�enne du Danube et qui, cependant, n'�tant point au nombre des
Puissances signataires de ce Trait�, n'est
pas fond�e "en droit" � r�clamer un si�ge � la conf�rence dont le
Gouvernement de la Reine propose en ce moment la r�union.
Eu �gard � la nature m�me des questions qui seront examin�es, le
Gouvernement de Sa Majest� britannique estime que les repr�sentants des
Puissances, une fois r�unis, pourraient
inviter le Gouvernement roumain � envoyer � la conf�rence un d�l�gu� qui
prendrait part aux d�lib�rations, au m�me titre que ceux des Puissances
signataires du Trait� de Berlin.
Le Gouvernement de la R�publique acquiesce volontiers � cette proposition,
qui sera, le cas �ch�ant, appuy�e par son repr�sentant � la conf�rence ; je
vous serais oblig� de vouloir
bien en aviser votre Gouvernement.
Agr�ez, etc.
(Signed) E. Duclerc."
-----------------------------------------------------------------------------------------------------------------
[FN1]
[Translation.]
�Paris, December 18th, 1882.
In your confidential letter of the 13th of this month, Your Excellency was
good enough to call my attention to the special position of Roumania, who,
in virtue of Article 53 of the Treaty of Berlin, has been admitted to a seat
on the European Commission of the Danube, and who, not being among the
number of the signatory Powers of this Treaty, cannot "as of right" claim a
seat at the conference the meeting of which the Government of the Queen now
proposes.
Having regard to the nature of the questions which will be examined, the
Government of Her Britannic Majesty consider that the representatives of the
Powers, when assembled, might invite the Roumanian Government to send a
delegate to the conference who would take part in the discussions on the
same footing as those of the Powers signatory to the Treaty of Berlin.
The Government of the Republic willingly agrees to this proposal, which
will, when raised, be supported by their representative at the Conference; 3
shall be obliged if you will be good enough to acquaint your Government of
this.
Accept, etc.
(Signed) E. Duclerc."
-----------------------------------------------------------------------------------------------------------------
[307] The letter from Sir A. Paget, British Ambassador at Rome, to Earl
Granville, is as follows:
"December 15th, 1882.
My Lord,
With reference to my immediately preceding despatch, I have the honour to
inform your Lordship that as soon as I had read and given a copy to M.
Mancini of your Lordship's despatch of the nth instant with reference to a
Conference upon questions connected with the navigation of the Danube, I
read to His Excellency your Lordship's despatch of the nth instant relative
to the admission of Roumania to take part in such Conference.
[308] When I had concluded, His Excellency observed that, although be quite
admitted the soundness in principle of not deciding questions in which any
Power was immediately concerned [p98] without giving that Power the
opportunity of expressing its views upon the questions, it might, indeed, be
objected that, as the Treaty of Berlin embraced many subjects which
concerned the interests of several Powers, the admission of Roumania to the
Conference now proposed, on the same footing as the Powers signatories of
the Treaty, might create an inconvenient precedent for future deliberations.
But M. Mancini admitted that the fact of Roumania being already a member of
the European Commission placed her in an exceptional' and special position
\in regard to a claim to be represented on the present occasion, and that
therefore her admission to the Conference now proposed would not create the
inconvenient precedent to which he had referred.
His Excellency then said he would communicate with the other Cabinets on the
subject, and give me his reply as soon as possible. I understood that if the
other Powers made no objection none would be raised by the Italian
Government.
At M. Mancini's request I, left with him a copy of your Lordship's despatch
now referred to.
(Signed) A. Paget."
[309] At the Conference of London, at the meeting of February 10th, 1883
(Protocol No. 2), Earl Granville "exprime l'espoir que la Roumanie sera
admise � la conf�rence sur le m�me pied que les autres Puissances. Il serait
d'autant plus gracieux de lui faire cet accueil qu'elle se trouve d�j�
repr�sent�e dans la Commission europ�enne et &'elle aura �galement son
repr�sentant dans la Commission mixte, dont la formation est propos�e."
[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1]
[Translation.]
"expressed the hope that Roumania would be admitted to the Conference on the
same footing as the other Powers. To extend this invitation to her would be
especially becoming since she was already represented on the European
Commission and would also have a representative on the Mixed Commission
which it was proposed to establish."
-----------------------------------------------------------------------------------------------------------------
[310] Count Munster did not share the view expressed by Lord Granville. For,
if, �"tout en maintenant le principe de l'unanimit� dans la conf�rence, on
donnait une voix � la Roumanie, on lui cr�erait une position qui ne serait
nullement d�sirable, celle de pouvoir � sa volont� imposer son veto. La
Roumanie ne pourrait donc �tre admise qu'en qualit� d'invit�e et non comme
ma�tresse de maison." [FN2] [p99]
-----------------------------------------------------------------------------------------------------------------
[FN2] [Translation.]
"whilst maintaining the principle of unanimity in the Conference, a vote
were given to Roumania, that country would be placed in a position which was
most undesirable, since she would be able at will to impose her veto.
Roumania therefore could only be admitted to the Conference as a guest an
not as a host".
-----------------------------------------------------------------------------------------------------------------
[311] The Austro-Hungarian plenipotentiary took the same view as Count
Munster.
[312] The Conference, adopting the opinion of the majority, decided to
invite Roumania to attend in an advisory capacity.
[313] In Protocol No. 2 of the meeting of February 10th, 1883, it is stated
that the Roumanian plenipotentiary having been admitted to the Conference
"on being informed of this decision, stated that the instructions received
by him from his Government only applied in the event of the Roumanian
representative being admitted to the Conference with the right to vote. But
that was not the position now offered him. He therefore requested the
Conference to communicate its decision in writing. He would inform his
Government of it and he had no doubt that he would shortly be able to convey
its answer to the plenipotentiaries. Meanwhile he felt it his duty to
abstain from the proceedings."
[314] Roumania's right to take part in the Conference on a footing of
equality with the Great Powers had been formulated in the letter of the
Roumanian Minister in London, which forms Annex A to Protocol No. 2 of
February 10th, 1883:[FN1]
"My Lord,
Si la Roumanie, le pays le plus directement int�ress� dans la navigation du
Danube, n'a pas �t� appel�e par le Trait� de [p100] Paris � participer aux
travaux de la Commission europ�enne, c'est qu'en 1856 elle formait deux
Principaut�s distinctes sous la suzerainet� de la Porte, qui �tait tenue de
d�fendre les int�r�ts des deux pays.
Il n'en �tait plus de m�me en 1878. A l'�poque du Trait� de Berlin, la
Roumanie �tait un �tat ind�pendant, ses int�r�ts et ses droits ne pouvaient
plus comme par le pass� �tre repr�sent�s par le d�l�gu� ottoman, et le
Congr�s de Berlin ne pouvait faire moins que de l'appeler � se faire
repr�senter dans la Commission europ�enne du Danube.
Par l'article LIII du Trait� de Berlin, le d�l�gu� de la Roumanie est admis
� la Commission europ�enne au m�me titre que les d�l�gu�s des Puissances
signataires des Trait�s de Paris, de Londres et de Berlin. C'�tait un acte
de justice et d'�quit� que de reconna�tre la position exceptionnelle occup�e
par la Roumanie sur la partie du fleuve soumise � la juridiction [p101] de
la Commission europ�enne. On ne pouvait pas l'exclure de toute action sur
des eaux dont on venait de lui donner la possession.
La participation de la Roumanie aux travaux de la Conf�rence sur le pied de
la plus parfaite �galit� avec les autres Puissances est indiqu�e par la
nature m�me des choses. Ayant �t� admise au sein de la Commission
europ�enne, on ne peut l'exclure d'une conf�rence convoqu�e sp�cialement
pour l'existence et l'organisation de cette m�me institution.
Il est � consid�rer que le droit de participation de la Roumanie � la
Conf�rence est fond� aussi bien sur les prescriptions anciennes et
permanentes du droit international que sur la situation r�cemment consacr�e
par l'Europe.
En effet, d'une part, le Protocole du Congr�s d'Aix-la-Chapelle du 15
novembre 1818 statue que <<dans le cas o� des r�unions auraient pour objet
des affaires sp�cialement li�es aux int�r�ts des autres �tats de l'Europe,
elles n'auraient lieu que sous la r�serve expresse de leur droit d'y
participer>>.
D'autre part, la Roumanie a sign� avec les autres Puissances l'Acte
additionnel � l'Acte public du 2 novembre 1865, relatif � la navigation des
embouchures du Danube, en date du 28 mai 1881, ainsi que le R�glement de
navigation et de police applicable � la partie du Danube comprise entre
Galatz et les embouchures, arr�t� par la Commission europ�enne le 19 mai
1881.
La signature du pl�nipotentiaire roumain impliquait d�s lors que la Roumanie
serait �galement appel�e � se prononcer directement et de pair avec les
autres Puissances sur toutes les questions relatives � la Commission
europ�enne du Danube.
Du reste, le cabinet de Vienne, par sa note du II avril 1882, s'est montr�
favorable � la participation de la Roumanie, et le Gouvernement du Roi pense
que les vues des autres cabinets de l'Europe s'accorderont � reconna�tre �
la Roumanie le compl�ment logique de la situation qui lui a �t� faite par
leur propre d�cision consign�e � l'article LI11 du Trait� de Berlin.
(Sign�) Jon Ghica,
Envoy� extraordinaire et ministre pl�nipotentiaire de Sa Majest� le Roi de
Roumanie.
A Son Excellence le Comte Granville, Pr�sident de la Conf�rence."
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"London, February 1st, 1883.
My Lord,
The reason why Roumania, the country most directly interested in the
navigation of the Danube, was not called upon under the Treaty of Paris to
take part in the work of the European Commission, is that, in 1856, she
formed two distinct Principalities under the suzerainty of the Porte, which
was responsible for the protection of the interests of the two countries.
The situation was no longer the same in 1878. At the time of the Treaty of
Berlin, Roumania was an independent State, her interests and rights could no
longer as in the past be represented by the Ottoman delegate and the
Congress of Berlin could do no less than invite her to appoint a
representative on the European Commission of the Danube.
Under Article LIII of the Treaty of Berlin, the Roumanian delegate is
admitted to the European Commission on the same footing as the delegates of
the Powers which had signed the Treaties of Paris, London and Berlin. The
recognition of the exceptional position occupied by Roumania on the part of
the river placed under the jurisdiction of the European Commission was an
act of justice and equity. It was impossible to exclude her from exercising
any influence over waterways of which she had just been given possession.
The participation of Roumania in the work of the Conference on a footing of
absolute equality with the other Powers is indicated by the very nature of
things. Having been admitted to the European Commission, she cannot be
excluded from a Conference specially summoned to deal with the existence and
organization of that institution.
It must be considered that Roumania's right to take part in the Conference
is also justified by the ancient and established principles of International
Law, as well as by the situation which has recently been recognized by
Europe.
For, on the one hand, the Protocol of the Congress of Aix-la-Chapelle of
November 15th, 1818, lays down that "in the case of these meetings having
for their object affairs specially connected with the interests of the other
States of Europe, they shall only take place under the express reservation
of their right of direct participation therein".
And, on the other hand, Roumania, together with the other Powers, has signed
the Additional Act to the Public Act of November 2nd, 1865, concerning the
navigation of the mouths of the Danube, dated May 28th, 1881, and also the
Regulations of Navigation and Police, applicable to the part of the Danube
between Galatz and the mouths, drawn up by the European Commission on May
19th, 1881.
It was therefore to be inferred from the fact that the Roumanian
plenipotentiary had signed these instruments that Roumania would also be
called upon to state her views directly and on a footing of equality with
the other Powers upon all questions relating to the European Commission of
the Danube. Moreover, the Vienna Cabinet, in its Note of April nth, 1882,
showed itself favourable to the participation of Roumania and His Majesty's
Government believes that the views of the other Cabinets of Europe will
agree in recognizing the logical corollary of the situation in which
Roumania has been placed by their own decision as set out in Article LIII of
the Treaty of Berlin.
(Signed) Jon Chica,
Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of
Roumania.
To His Excellency Earl Granville, President of the Conference."
-----------------------------------------------------------------------------------------------------------------
[315] At the sitting of February 13th, 1883 (Protocol No. 3), the Italian
plenipotentiary, Count Nigra, proposed that the Conference should
communicate to the Roumanian Government the [p102] decision taken which was
based on �le fait que la Conf�rence a cru devoir se consid�rer en quelque
sorte comme la prolongation et la suite du Trait� de Berlin, auquel la
Roum�nie n'a pas particip� comme signataire.� [FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"the fact that the Conference had felt that it should regard itself as in a
sense a prolongation of and sequel to the Treaty of Berlin, in which
Roumania had not taken part as a signatory".
-----------------------------------------------------------------------------------------------------------------
[316] This proposal was unanimously adopted.
[317] By a letter addressed to Lord Granville, on February 12th, 1883, the
Roumanian Minister in London protested in the name of Roumania against the
Conference's decision. This letter, which refers to that of February 2nd,
forms Annex A to Protocol No. 3 of February 13th, 1883:[FN2]
� Monsieur le Comte,
Par ordre de mon Gouvernement, j'ai eu l'honneur d'adresser � Votre
Excellence, en date du z f�vrier, une note pour demander que la Roumanie f�t
admise � prendre part � la Conf�rence
relative � la question du Danube, sur le m�me pied que les autres �tats
repr�sent�s dans la Commission europ�enne du Danube.
Votre Excellence ayant bien voulu me communiquer la d�cision qui a �t� prise
� ce sujet par les repr�sentants des Puissances signataires du Trait� de
Berlin, j'ai l'honneur de [p103] porter � la connaissance de' Votre
Excellence que le Gouvernement du Roi ne saurait accepter une situation qui
ne lui accorderait qu'une voix consultative et qui ne lui permettrait pas de
prendre part aux d�cisions de la Conf�rence.
Par cons�quent, je me trouve, Monsieur le Comte, dans la n�cessit� de
d�cliner l'honneur d'assister aux s�ances de la Conf�rence, et, au nom du
Gouvernement du Roi, je fais les
r�serves les plus solennelles et je proteste contre les d�cisions qui
seraient prises sans la participation de la Roumanie, en les d�clarant non
obligatoires pour elle.
Veuillez, etc.
(Sign�) Jon Ghica.
-----------------------------------------------------------------------------------------------------------------
[FN2][Translation.]
"London, February 12th, 1883.
My Lord,
Under the instructions of my Government, I had the honour to transmit to
Your Excellency a note dated February 2nd, requesting that Roumania should
be allowed to take part in the Conference concerning the Danube question on
the same footing as the other States represented on the European Commission
of the Danube.
Your Excellency having been good enough to communicate to me the decision
taken on this subject by the representatives of the signatory Powers of the
Treaty of Berlin, I have the honour to inform you that His Majesty's
Government cannot accept a position which would only enable it to attend the
Conference in an advisory capacity and would not permit it to take part in
the Conference's decisions.
I therefore find myself compelled to decline the honour of assisting at the
meetings of the Conference and, on behalf of His Majesty's Government, I
hereby make full reservations and solemnly protest against any decisions
taken without the participation of Roumania and I declare that they will not
be binding upon her.
I have, etc.
(Signed) Jon Chica.
His Excellency Earl Granville, President of the Conference."
-----------------------------------------------------------------------------------------------------------------
[318] In a letter dated May 24th, 1883, sent by the Roumanian Foreign
Minister to the Roumanian Minister in London for transmission to Lord
Granville, after again protesting against the extension of the authority of
the European Commission from Galatz to Braila, and against the Regulations
of Navigation and Police from the Iron Gates to Braila, the Minister
concludes as follows:[FN1]
[319] "En examinant avec impartialit� et �quit� les dispositions du Trait�
de Londres du IO mars 1883, on arrive n�cessairement aux conclusions
suivantes :
1) La Roumanie a des droits incontestables � la participation effective aux
d�lib�rations d'une conf�rence ayant pour objet les affaires du bas Danube
en vertu de sa triple position de riveraine, de membre de la Commission
europ�enne du Danube et de co-signataire de l'Acte additionnel du 28 mai
1881. [p104]
2) N'ayant pu prendre part aux d�lib�rations de la Conf�rence de Londres,
les d�cisions prises par cette Conf�rence ne peuvent avoir force obligatoire
pour la Roumanie.
3) L'Acte additionnel du 27 mai 1881, �tant une convention r�guli�rement et
valablement conclue et ratifi�e, ne saurait �tre modifi� unilat�ralement.
4) Le R�glement de navigation et de police fluviale en aval des
Portes-de-Fer ne saurait avoir pour but de porter atteinte aux droits des
riverains, - mais d'assurer par eux la libert� de navigation et de
commerce."
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"An impartial and equitable examination of the terms of the Treaty of London
of March 10th, 1883, necessarily leads to the following conclusions:
(1) Roumania has indisputable rights effectively to participate in the
deliberations of a Conference dealing with the affairs of the Lower Danube,
in virtue of her threefold position as a riparian State, a member of the
European Commission of the Danube, and as a co-signatory of the Additional
Act of May 28th, 1881.
(2) As Roumania was unable to take part in the proceedings of the Conference
of London, the decisions taken at that Conference cannot be binding upon
her.
(3) The Additional Act of May 27th, 1881, being a convention concluded and
ratified in good and due form, cannot be modified unilaterally.
(4) The Regulations of Navigation and River Police applicable below the Iron
Gates cannot be intended to prejudice the rights of riparian States � but to
secure freedom of navigation and commerce through their agency."
-----------------------------------------------------------------------------------------------------------------
[320] The whole of the foregoing shows that the reason for the exclusion of
Roumania from the Congress was not the principle of the Concert of Europe;
the real reason must be sought, firstly in the desire of certain Powers to
extend to Braila the authority of the European Commission, and secondly in
Austria-Hungary's desire that the Conference should adopt the Regulations of
Navigation and River Police from the Iron Gates to Braila.
[321] These Regulations divide the Danube into two distinct parts and their
object was to benefit Austria-Hungary to the detriment of the other riparian
States ; riparian States below the Iron Gates have no share in the control
of navigation above that point and reciprocity is abolished, so that
Austria-Hungary acquires a preponderating position. Roumania, had she been
present at the Conference, would, by her veto, have prevented certain Powers
from attaining the result desired by them.
***
[322] Since, in conformity with the terms of the Treaty of Berlin, the
powers of the European Commission could in law only be exercised as far as
Galatz, it remains to consider whether in fact the European Commission could
not extend its powers on the grounds of international custom.
[323] It should be observed that in the present case there is no question of
an encroachment upon the sovereignty of one State enuring to the benefit of
another, but of such an encroachment enuring to the benefit of the European
Commission of the Danube. If in. the former case immemorial usage may lead
to an encroachment upon sovereignty, in the latter, usage cannot be taken
into consideration. Indeed the [p105] International Commission of the Danube
is an organization which was put into operation by the common wish of the
Powers as expressed by the treaties and conventions in force.
[324] The European Commission of the Danube was created in order to ensure
navigation on the river. It possesses its own patrimony which is distinct
from the separate patrimony of each State. It has its own flag. It is in
reality an international organization which possesses its own sovereign
powers on the territory of the Roumanian State; it has legislative powers
for drawing up regulations and executive powers for carrying them out; it
even has .judicial powers because it gives sentences in its own name. But
all these rights which are conferred upon it and which it may exercise in
conformity with Article 53 of the Treaty of Berlin "in complete independence
of the territorial authorities", it only possesses and it can only exercise
within the limits defined by the international treaties by which it was
created. It cannot of its own will either extend or diminish its own powers.
[325] Even if the European Commission has in the past exercised the rights
and prerogatives arising from situations of fact independently of the
situation at law, it is easy to show that the formation of a customary rule
compelling Roumania to submit in the disputed sector to a limitation of its
right of sovereignty could not have been established.
[326] The teachings of publicists and of international practice agree in
recognizing the necessity of immemorial usage consisting both of an
uninterrupted recurrence of accomplished facts in the sphere of
international relations and of ideas of justice common to the participating
States and based upon the mutual conviction that the recurrence of these
facts is the result of a compulsory rule.
[327] No international custom showing that Roumania had abandoned her right
of jurisdiction over the Galatz-Braila sector in favour of the European
Commission of the Danube has been able to develop; since neither a
recurrence of facts from immemorial times nor ideas of justice held in
common can be shown to exist.
[328] In order that these common ideas of justice should be capable of being
invoked, on the one hand the European Commission must have believed it was
acting under a [p106] compulsory rule and, on the other, Roumania, either by
external action or by constant abstentions, must have recognized that the
exercise of the right was lawful.
[329] From a consideration of the facts which took place before the war, it
is easy to show that, although sentences were pronounced by the Inspector of
Navigation in the disputed sector, it cannot be said that the European
Commission was convinced of the lawful character of the exercise of the
right, because it was contrary to the navigation regulation issued by the
Commission itself. Since the decisions of the European Commission of the
Danube had to be taken unanimously, a conviction as to the lawful character
of its right of jurisdiction cannot be spoken of, in view of the dissenting
vote of the Roumanian delegate, who raised a protest every time he was
informed of the abusive exercise of the right.
[330] Furthermore, the sentences of the Roumanian authorities in the
disputed sector prove that Roumania has never recognized the right of the
European Commission as being lawful. Even though Roumania has abstained from
the exercise of her jurisdiction during a certain period, it cannot be said
that she has renounced her right in favour of the European Commission;
because, as the Court laid down in the case of the Lotus (p. 28), "for only
if such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom". Moreover,
it is not enough to abstain; it is for the other side to prove that he had
exercised the right with a conviction of its having been lawful.
***
[331] It is clear that in the sector from Galatz to the mouths, in which the
European Commission exercises "powers", by virtue of Article 53 of the
Treaty of Berlin, "in complete independence of the territorial authorities",
it has the right of issuing regulations, the right of policing the river,
and the right of exercising jurisdictional powers, because clear and
unambiguous provisions have conferred this right upon it.
[332] This is not the case as regards the disputed Galatz-Braila sector,
because as regards this sector there is no treaty which is valid as against
Roumania and which confers such right [p107] upon the Commission. As regards
the sector in dispute, the European Commission, in order to meet the
requirements of maritime navigation, exercises in common certain rights of
superintendence; but there are no stipulations in the Regulations of the
European Commission in favour of this Commission exercising rights of
jurisdiction.
[333] The Committee of Enquiry nevertheless considered that: "In the absence
of any clearly proved practice to the contrary, the exercise of the power of
regulation and of that of punitive jurisdiction (that is to say of
jurisdictional powers) merge."
[334] And the Committee, in the absence of any texts in support, invoked the
"practice established on the maritime Danube". This practice is contradicted
by the treaties and international acts relating to the Danube and its
mouths.
[335] Thus, according to the terms of Article 55 of the Treaty of Berlin,
the European Commission is entrusted with drawing up regulations respecting
navigation from the Iron Gates to Galatz, and it has never been claimed that
the European Commission has a right of exercising jurisdictional powers as
far as the Iron Gates.
[336] Articles 12 and 14 of the Barcelona Convention of April 20th, 1921,
further confirm this point of view.
[337] Article 14 stipulates that if any special agreements or treaties
conferred certain functions relating to navigation to an international
commission, the powers and duties of the commission shall at least include
the rights of drawing up navigation regulations. The text does not say: "and
jurisdictional powers". This right must be exercised, subject to treaty
provisions to the contrary, by the territorial authorities.
[338] Still less can it be said that technical powers involve jurisdictional
powers, because such a contention would not correspond either to the
principles enunciated in the treaties and conventions relating to the Danube
or to the Barcelona Convention or in the last place to the principles
relating to sovereignty.
[339] The Treaty of Paris of March 30th, 1856, confers upon the European
Commission a purely technical character, because it was entrusted with
carrying out at the mouths of the Danube works necessary for the navigation,
and the right of jurisdiction was exercised by the territorial authority, as
laid down in Article 8 of the Public Act of Galatz of November 2nd, 1865.
[p108]
[340] From the Treaty of Barcelona of April 20th, 1921, no connection of any
kind can be inferred between the exercise of technical powers and the
exercise of jurisdictional powers, the latter belonging to the State whose
sovereignty extends over the navigable waterway.
[341] Article 6. - Each of the contracting States maintains its existing
right, on the navigable waterways or parts of navigable waterways referred
to in Article 1 and situated under its sovereignty or authority, to enact
the stipulations and to take the measures necessary for policing the
territory and for applying the laws and regulations relating to customs,
public health, precautions against the diseases of animals and plants,
emigration or immigration, and to the import or export of prohibited goods,
it being understood that such stipulations and measures must be reasonable,
must be applied on a footing of absolute equality between the nationals,
property and flags of any one of the contracting States, including the State
which is their author, and must not without good reason impede the freedom
of navigation.
[342] Article 10. �
2. If such navigation necessitates regular upkeep of the waterway, each of
the riparian States is bound as towards .the others to take such steps and
to execute such Works on its territory as are necessary for the purpose as
quickly as possible, taking account at all times of the conditions of
navigation, as well as of the economic state of the regions served by the
navigable waterway. �
4. In the absence of any agreement to the contrary, a State which is obliged
to carry out works of upkeep, is entitled to free itself from the
obligation, if, with the consent of all the co-riparian States, one or more
of them agree to carry out the works instead of it; as regards works for
improvement, a State which is obliged to carry them out shall be free from
the obligation if it authorizes the State which made the request to carry
them out instead of it. The carrying out .of works by States other than the
State territorially interested, or the sharing by such States in the cost of
works, shall be so arranged [p109] as not to prejudice the rights of the
State territorially interested as regards the supervision and administrative
control over the works, or its sovereignty or authority over the navigable
waterway. �
[343] Furthermore, the principles relating to sovereignty do not allow of
the conclusion that the exercise of technical powers carry with them the
exercise of jurisdictional powers, because the latter, being the most
fundamental attribute of sovereignty can only be surrendered by the clearly
expressed intention of the State on the territory of which the exercise of
such jurisdiction is claimed.
[344] On what grounds do the three Powers claim the right of exercising
jurisdictional powers over the Galatz-Braila sector, when the Treaty of
Berlin and the pohce and navigation regulations which apply to the Lower
Danube only confer this right upon the Powers below Galatz?
[345] It is true that on this part of the river which extends from Galatz to
Braila and which forms part of the maritime Danube, the commercial interests
of the nations require that the regulations should be the same as those
below Galatz and that a joint control both over, the course of the river and
over the entry and exit of ships from the ports should be accepted; but it
cannot be inferred from the acceptance by Roumania of such joint control
over the Galatz-Braila sector and from the carrying out of certain works of
a technical character, that Roumania has surrendered her rights of
sovereignty over the sector in dispute. Such a surrender canrtot be
presumed. There must be a clear and unambiguous authority. No such authority
exists. Even were one to refer to the de facto situation before the war, the
terms of the Navigation Regulations, the Instructions issued by the
Inspector, and the Guide to Navigators, would prove that the jurisdiction of
the European Commission extends from the mouths of the river to below
Galatz.
[346] The title of the Regulations is as follows: "Regulations of Navigation
and Police applicable to the part of the Danube between Galatz and the
mouths." Articles I, 3, 165 and 190, which relate to the right of
jurisdiction, correspond to the title of the Regulations: [p110]
Article premier. - L'exercice de la navigation sur le bas Danube en aval de
Galatz est plac� sous l'autorit� de l'inspecteur de la navigation et du
capitaine du port de Soulina.[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.] "The navigation of the Lower Danube below Galatz is
placed under the control of the Inspector of Navigation of the Lower Danube
and of the Captain of the Port of Sulina."
-----------------------------------------------------------------------------------------------------------------
Article 3.-L'inspecteur est sp�cialement pr�pos� � la police du bas Danube
elz aval de Galatz, � l'exclusion du port de Soulina. [FN2]
-----------------------------------------------------------------------------------------------------------------
[FN2] [Translation.] "The Inspector is specially charged with the police of
the Lower Danube below Galatz, exclusive of the port of Sulina."
-----------------------------------------------------------------------------------------------------------------
Article 165.- �
L'amende est de vingt francs au moins et de 550 francs au plus, pour tout
capitaine d'un b�timent de mer qui, en cours de voyage, entre Galatz et
Sozclina, ne peut pr�senter son r�le d'�qwpage, ou refuse de le produire
aitu agents de l'Inspection de la navigation. [FN3]
-----------------------------------------------------------------------------------------------------------------
[FN3] [Translation.] "A fine of 20 frs. at least or 550 frs. at most, may be
inflicted on the captain of any sea-going vessel found between Galatz and
Sulina who cannot produce his muster-roll, or refuses to produce it for the
agents of the Inspector of Navigation."
-----------------------------------------------------------------------------------------------------------------
Article 190. - L'inspecteur de la navigation et le capitaine du port de
Soulina connaissent des contraventions commises, dans l'�tendue de leur
ressort, contre les dispositions du pr�sent R�glement et prononceht, en
premi�re instance, l'application des amendes encourues � raison de ces
contraventions. [FN4]
-----------------------------------------------------------------------------------------------------------------
[FN4] [Translation.] "The Inspector of Navigation and the Captain of the
Port of Sulina take cognizance of offences committed within the limits of
their several jurisdictions against the provisions of the present
Regulations, and they give judgment, each as a Court of first instance, in
respect of the fines applicable to these offences."
-----------------------------------------------------------------------------------------------------------------
[347] In the interests of maritime navigation, which extends from the mouths
of the river to Braila, provision has been made for certain general rules of
superintendence which compel the European Commission to take certain
precautionary measures. Thus, under Article 35 of the Regulations, steamers
must maintain full pressure throughout their movements in ports on the Lower
Danube and must "slow down when passing through the sections of the ports of
Braila, Galatz, [p111] Reni, Toultcha and Sulina". Again, the European
Commission must maintain a service of licensed pilots, and sea-going vessels
must, under Article 101 of the Regulations, be navigated by a pilot of the
European Commission, as far as Braila.
[348] It is impossible, from the fact that sea-going vessels must slow down
in ports (Article 35) and must be navigated as far as Braila by a pilot of
the European Commission who must report breaches of the Regulations
(Articles 101, 102 and 108), to conclude that the jurisdiction of the
European Commission is implicitly extended as far as Braila.
[349] That conclusion is in contradiction with Articles 3, 165 and 190 of
the Regulations, which state that the jurisdictional power of the European
Commission extends downstream from Galatz to the mouths of the Danube.
Moreover, this extension of jurisdiction is contrary to the intention
expressed by the Powers in the international treaties and instruments
relating to the Danube. All the provisions, which contain measures of
superintendence (pilotage, slowing down in ports, etc.), and which are cited
as implying an extension of jurisdiction to Braila, were embodied in the old
regulations contained in the Public Act of Galatz of 1865, and subsequently
confirmed by the Additional Act of Galatz of 1881: If the Powers possessed
jurisdictional powers under these provisions, why then did the Treaties of
Berlin and of London extend the territorial authority of the European
Commission? Because the Powers have always held that regulations cannot be
construed in a sense contrary to the Treaty of which they form an integral
part, and that restrictions cannot be imposed upon the sovereignty of a
State otherwise than by means of the assent of that State expressed in a
treaty submitted to it for ratification.
Sentences given by the Roumanian Authorities.
[350] The 433 cases presented by the Roumanian Government are disregarded by
the Committee, for the reason that they are cases of civil awards or relate
to the policing of ports in which Roumania's authority is undisputed. In
other words, these sentences should have been taken into consideration if
they had concerned matters of river police either in the [p112] navigable
channel passing through the ports of Galatz and Braila or in the sector in
dispute outside these ports, since in these two cases Roumania's right of
jurisdiction is disputed. But to make such a contention tenable, the
territorial limits of the ports of Galatz and Braila, both below and above
these ports, and in relation to the navigable channel, must first of all be
established, for otherwise the conclusion eliminating the whole of the cases
presented cannot be entertained.
[351] An examination of the sentences discarded shows that some of them
relate to river police matters. The Committee records that the Roumanian
Authorities condemned the N�r� and the Main for navigating without a pilot
between Galatz and Braila.
[352] The Committee takes no account of these two cases, for in these
particular instances Article 10 of the Roumanian Regulations was applied,
whereas it should have been the Regulations of the European Commission. But
even if it were so, the Committee should have taken them into account; for
the question put to it was what authority had in fact exercised the right of
jurisdiction.
[353] The Roumanian Authorities further condemned for infringements of their
Police Regulations the yacht Carolus and the tug Ister, belonging to the
European Commission, by sentences No. 2537 (November 26th, 1907) and No. 279
(March 6th, 1901).
[354] The Committee excludes the first case. As regards the second, it was a
condemnation for excessive speed on leaving the port of Galatz.
[355] If the Roumanian Authorities had no rights of jurisdiction in the
Galatz-Braila sector, how can the fact be explained that the European
Commission never made a protest to the Roumanian Government?
Sentences given by the European Commission.
[356] Generally speaking, the sentences of the European Commission relating
to the sector Galatz-Braila were rendered without the knowledge of the
Roumanian Authorities or of the Roumanian delegates, and when the latter
became aware of them they protested to the Commission, which admitted the
justice of the protest and gave orders to its agents no longer to exercise
jurisdictional powers on the sector in dispute. [p113]
Roumanian protests and decisions of the European Commission of the Danube.
[357] As a result of the repeated protests of the Roumanian delegate against
the abusive acts of the Inspector of Navigation, the rights of the
territorial authorities in the sector were formally recognized by the
European Commission's decision of March 19th, 1892.
[358] The note sent by the Commission to all delegates and reproducing the
decision taken to this effect is as follows:
"Commission europ�enne du Danube.
No. 432.
Galatz, le 20 mars 1892.
Monsieur et cher Coll�gue,
Le Comit� ex�cutif a l'honneur de vous informer que, dans sa s�ance du 19
mars courant, � la suite d'observations � lui soumises verbalement par M. le
d�l�gu� de Roumanie concernant
deux d�positions .recueillies par l'inspecteur de la navigation sur les
circonstances d'un �chouement qui a eu lieu en amont de Galatz, la
r�solution suivante a �t� prise � l'unanimit�
des six d�l�gu�s pr�sents:
"La Commission europ�enne, d�sireuse de continuer les bons rapports qui
existent si heureusement entre elle et le Gouvernement royal de Roumanie,
s'engage � �viter tout conflit, en donnant les ordres n�cessaires �
l'inspecteur de la navigation du bas Danube et � ses autres
agents, de ne pas dresser d'actes de juridiction dans les localit�s situ�es
en amont de Galatz.
Galatz, le 19 mars 1892."
(Sign�) Raffauf, Percy Sanderson, Giulio Tesi, A. Romanenko; I. D.
Bal�ceano, M. Azarian."[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"European Commission of the Danube.
No. 432.
Galatz, March 20th, 1892.
Monsieur et cher Coll�gue,
The Executive Committee has the honour to inform you that at its meeting of
March 19th, in consequence of observations addressed to it verbally by the
Roumanian delegate concerning two depositions taken by the Inspector of
Navigation in regard to the circumstances of a vessel running ashore above
Galatz, the following resolution was unanimously adopted by the six
delegates present: �The European Commission, being anxious to preserve the
good relations so happily prevailing between it and the Royal Roumanian
Government, undertakes to avoid any dispute, by giving the necessary orders
to the Inspector of Navigation on the Lower Danube and to its other agents
not to exercise jurisdictional powers in localities above Galatz.
Galatz, March 19th, 1892.�
(Signed) Raffauf, Percy Sanderson, Giulio Tesi, A. Romanenko, I. D.
Balaceano , M. Azarian."
-----------------------------------------------------------------------------------------------------------------
Custom.
[359] It has been demonstrated above that an isolated fact or case of
tolerance cannot be transformed into a situation valid at law; there must be
an international custom which can only be established by a continuous
practice from time immemorial and by a reciprocal conviction of the
lawfulness of the exercise of the right in question. Now, these conditions
are not present in this case: the British Memorandum speaks of an
"intermittent control" exercised by the European Commission on the sector
Galatz-Braila. The Annual Report of the Secretary-General of the European
Commission only mentions the exercise of jurisdiction on the sector in
dispute since 1904. Finally, the Committee recognizes that: "What happened
between 1906 and. 1911 is not very clear from the documents submitted to the
Committee ..."
[360] Again, the protests of Roumania and the decisions of the European
Commission recognizing the soundness of Roumania's claim, exclude the
possibility of any common conception of the law. Furthermore, the sentences
of the European Commission are rendered in virtue of the Treaties of Paris
of 1856, of London of 1871 and of Berlin of 1878, the latter of which
extended its authority as far as Galatz, a circumstance which renders it
impossible for the Commission to have the conviction that the exercise of
its right on the sector in dispute is lawful.
[361] The following is the formula to be found in all these sentences: [FN1]
�Nous, Inspecteur de fa Navigation du bas Danube, Vu les articles 32 et 105
du R�glement de navigation et de police, �dict� sous la date du 10 novembre
1911 par la Commission europ�enne du Danube institu�e en vertu du Trait� de
Paris du 30 mars 1856, du Trait� de Londres du 13 mars 1871 et du Trait� de
Berlin du 13 juillet 1878. �
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.] "We, Inspector of Navigation of the Lower Danube,
Having regard to Articles 32 and 105 of the Regulations of Navigation and
Police promulgated on November 10th, 1911, by the European Commission of the
Danube established in pursuance of the terms of the Treaty of Paris of March
30th, 1856, of the Treaty of London of March 13th, 1871, and of the Treaty
of Berlin of July 13th, 1878."
-----------------------------------------------------------------------------------------------------------------
[362] It is therefore clear that in this case no international custom
exists, since there is neither a continued exercise [p115] of a right since
time immemorial nor a mutual conviction of the lawfulness of the exercise of
such a right.
The Protocol of May 6th, 1921.
[363] It will be shown later that the Protocol of May 6th, 1921, must be
regarded as a decision of the European Commission, stating the conditions
under which its powers have been exercised in the sector in dispute. Now the
Protocol specifies that, in the past, it maintained the navigable channel
and the pilotage service. Jurisdictional powers, not being mentioned, must
be regarded as having belonged as of right to Roumania.
The Agreement of 1922.
[364] It will be shown later that the European Commission has implicitely
recognized that Roumania has in the past exercised rights of jurisdiction
over the Galatz-Braila sector.
***
[365] Since the de facto situation has not in the past received the sanction
of international custom, it must be ascertained whether the Statute of the
Danube has not taken into account the pre-war situation of fact.
Article 5. - "La Commission europ�enne exerce les pouvoirs qu'elle avait
avant la guerre. Il n'est rien chang� aux droits, attributions et immunit�s
qu'elle tient des trait�s, conventions, actes et arrangements internationaux
relatifs au Danube et � ses embouchures."
Article 6. - "La comp�tence de la Commission europ�enne s'�tend, dans les
m�mes conditions que par le pass� et sans aucune modification � ses limites
actuelles, sur le Danube maritime, c'est-�-dire depuis les embouchures du
fleuve jusqu�au point o� commence la comp�tence de la Commission
internationale."[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
Article 5. - "The European Commission retains the powers which it possessed
before the war.
No alteration is made in the rights, prerogatives and privileges which it
possesses in virtue of the treaties, conventions, international acts and
agreements relative to the Danube and its mouths."
Article 6. - "The authority of the European Commission extends, under the
same conditions as before, and without any modification of its existing
limits, over the maritime Danube, that is to say, from the mouths of the
river to the point where the authority of the International Commission
commences."
-----------------------------------------------------------------------------------------------------------------
[366] Article 5 deals solely with a situation at law. The word "powers" does
not refer to a situation of fact but rather to the rights conferred on the
European Commission. This is made clear by comparing the Treaty of Berlin,
which, in Article 54, refers to the powers of the Commission, with the
Additional Act of Galatz which, in Article 1, states that the rights derived
from the Treaty of Berlin are to continue to hold good in the future.
[367] That the word "powers" in Article 5 does not refer to situations of
fact but only to situations at law is also borne out by the second paragraph
of the article: " . . . No alteration is made in the rights, prerogatives
and privileges which it possesses in virtue of the treaties, conventions,
international acts and agreements relative to the Danube and its mouths."
[368] Whilst Article 5 does not relate to situations of fact, this is not
true of Article 6, which must be construed in the light of the Protocol and
which has transformed certain situations of fact into situations at law in
the sector in dispute. For it does not simply say without qualification that
the Commission's authority is to extend over the maritime Danube, but that
it is to do so under the same conditions as before and without any
modification of its existing limits.
[369] The Roumanian representative at the Conference of the Danube
recognized that in fact Roumania never opposed the exercise of the
Commission's technical powers in the disputed sector, but that she never
admitted its right to exercise jurisdictional powers. All this appears from
the preparatory Work.
[370] The first Draft of Article 6 was as follows:
Article 6.-"La juridiction de ladite Commission s'�tend, comme il est dit �
l'article 4, sur toute la partie du fleuve accessible aux navires de haute
mer, c'est-�-dire de Bra�la � la mer Noire� [FN1]
----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
Article 6: "The jurisdiction of the said Commission shall, as laid down in
Article 4, extend over all the part of the river accessible to sea-going
ships - that is to say from Braila to the Black Sea."
-----------------------------------------------------------------------------------------------------------------
[371] The Roumanian plenipotentiary refused to accept it. Agreement was
reached in regard to Galatz and on the basis of a [p117] distinction between
technical and jurisdictional powers. M. Legrand proposed a second draft:
"La juridiction de ladite Commission s'�tend, comme il est dit � l'article
3, sur le Danube maritime, c'est-�-dire de la mer Noire jusqu'� Galatz, �
l'exclusion des ports fluviaux autres que le port de Soulina.
Toutefois, la comp�tence technique de la Commission s'�tendra comme par le
pass� sur le chenal navigable entre Galatz et Bra�la. Le service du pilotage
reste compris dans cette comp�tence."[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"The jurisdiction of the said Commission shall, as laid down in Article 3,
extend over the maritime Danube - that is to say from the Black Sea to
Galatz�with the exception of river ports other' than that of Sulina.
Nevertheless, the technical authority of the Commission shall, as in the
past, extend over the navigable channel between Galatz and Braila. The
authority in question shall cover the pilotage service."
-----------------------------------------------------------------------------------------------------------------
[372] The German plenipotentiary objected: " . . . that the general
authority of the European Commission had been extended by the Treaty of
London of March 10th, 1883, as far as Braila. If it were now proposed only
to grant it technical powers on the part of the river between Galatz and
Braila, that would amount to modifying the powers exercised by the
Commission before the war, which powers had been expressly maintained by
Article 346 of the Treaty of Versailles."
"The Roumanian delegate replied that the Treaty of London of March 10th,
1883, had never been accepted by Roumania. The European Commission had only
carried out technical works between Galatz and Braila for the upkeep and
improvement of the navigable channel. Pilotage and buoying were also within
the Commission's province on that part of the river.
The President's draft which took into account this situation of fact and of
law was the only one which could satisfy the Roumanian delegation."
[373] The remarks of the British plenipotentiary were also as follows:
"The British delegate observed that Article VI simply confirmed the powers
in fact exercised by the European Commission which, between Galatz and
Braila, undertook dredging, buoying and pilotage.
Subject to these observations, Article VI was adopted in first reading."
[p118]
[374] In order to take into account the observations of the German delegate
and the replies made to him by the other delegates, M. Legrand submitted a
new text which, as he explained, "made no fundamental change in Article 6
but simply a modification of form designed to make the wording of the
article more clear and to remove an apparent anomaly in its original text".
(Protocol No. 34, Vol. II, p. 595.)
[375] The Roumanian plenipotentiary said that he was prepared to accept the
formula proposed with one modification: the substitution of the word
competence (authority) for the word juridiction (jurisdiction), "with an
express reservation in respect of de- facto restrictions existing before the
war between Braila and Galatz". (Protocol No.34, p.540.) It was unanimously
recognized that in the Braila-Galatz sector only the technical powers of the
European Commission, and not its jurisdictional powers, might be exercised.
Nevertheless the Roumanian plenipotentiary proposed, in order to prevent any
doubt as to the construction to be placed on Article 6, to define its
meaning in a protocol; "if this were done, he said, no one could in the
future be under a misapprehension as to the real scope of its authority
which, though terminating at the point where that of the International
Commission began, was not exercised under the same conditions between the
Black Sea and Galatz as between Galatz and Braila." And he asked "that the
European Commission of the Danube, which was directly interested in this
question, might be requested by the President of the Conference to define in
a special protocol, which would form an integral part of the Statute of the
Danube, the exact extent of its powers as exercised before the war".
[376] The Hungarian plenipotentiary having asked "what authority was
responsible for the drawing up and application of navigation regulations
between Galatz and Braila - the European Commission or the territorial
authority?", his question Was answered by the following decision: "it is
decided that the Protocol to be drawn up by the European Commission, under
the conditions proposed by the Roumanian plenipotentiary, shall contain all
these particulars. This Protocol, which is [p119] to be drawn up as the
result of an agreement between the delegates of the four Powers at present
represented on the European Commission, shall serve as an interpretation of
Article 6."
[377] On May 6th, 1921, the Interpretative Protocol was drawn up by the
European Commission of the Danube. It bears the signatures of the British,
French, Italian and Roumanian representatives, and runs as follows:[FN1]
"Annexe II au Protocole no 68.
Protocole interpr�tatif de l'article VI du Statut du Danube, arr�t� par la
Commission europ�enne du Danube.
A la suite de l'adoption par la Conf�rence internationale du Danube de
l'article VI du projet de statut d�finitif qui d�termine la comp�tence de la
Commission europ�enne, les d�l�gu�s
de France, de Grande-Bretagne, d'Italie et de Roumanie ont [p120] tonvenu,
sur la demande de la Conf�rence, de r�diger le protocole suivant en vue de
fixer l'interpr�tation qu'ils ont entendu
donner � la disposition susvis�e:
J - Les d�l�gu�s soussign�s d�clarent qu'en stipulant que �la comp�tence de
la Commission europ�enne s'�tend sur le Danube maritime, c'est-�-dire depuis
les embouchures du fleuve jusqu'au point o� commence la comp�tence de la
Commission internationale�, l'article VI du Statut n'apporte et ne doit
apporter � l'avenir aucune modification aux conditions ni aux limites
dans lesquelles ce r�gime administratif a �t� appliqu� jusqu'aujourd'hui. Il
est donc clairement entendu que les pouvoirs de la Commission ne sont, en
vertu de cette disposition, ni augment�s ni diminu�s et qu'ils doivent
continuer � s'exercer sur le fleuve, de la m�me mani�re que par le pass�, en
conformit� avec les trait�s, actes internationaux et r�glements de
navigation auxquels tous les �tats repr�sent�s ont adh�r�. Il est �galement
entendu qu'entre Galatz et Bra�la la Commission europ�enne continuera, comme
par le pass�, � entretenir le chenal navigable et son service de pilotage.
La pr�sente d�claration sera communiqu�e � la Conf�rence internationale �
toutes fins utiles et vers�e aux archives officielles de la Commission
europ�enne du Danube.
Fait � Paris, le 6 mai 1921.
Le d�l�gu� de France: (Sign�) A. Legrand.
Le d�l�gu� de Grande-Bretagne: (Sign�) J. G. Baldwin.
Le d�l�gu� d'Italie: (Sign�) V. Siciliani.
Le d�l�gu� de Roumanie: (Sign�) C. Contzesco."
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"Annex II to Protocol No. 68.
Interpretative Protocol to Article VI of the Statute of the Danube, prepared
by the European Commission of the Danube.
As a result of the adoption by the International Danube Conference of
Article VI of the Draft Definitive Statute determining the competence of the
European Commission, the delegates of France, Great Britain, Italy and
Rouminia have agreed, at the request of the Conference, to draft the
following Protocol with a view to laying down their interpretation of the
above-mentioned provision.
The undersigned delegates declare that, in stipulating that the authority of
the European Commission extends to the maritime section of the Danube - i.e.
from the mouths of the river to the point where the authority of the
International Commission begins - Article VI of the Statute does not, and
shall not hereafter, entail any modification of the conditions under which,
or the limits within which, this administrative regime has hitherto been
applied. It is clearly understood, therefore, that the powers of the
Commission are not, in virtue of this provision, either increased or
diminished, and that they should continue to be exercised on the river in
the same way as in the past in conformity with the treaties, international
acts and rules of navigation to which all the States represented have
adhered. It is also understood that between Galatz and Braila the European
Commission will continue as in the past to maintain the navigable channel
and its pilotage service.
The present declaration shall be communicated to the International
Conference and placed in the official archives of the European Commission of
the Danube.
Done at Paris, May 6th, 1921.
(Signed) A. LEGRAND, Delegate of France.
(Signed) BALDWIN, Delegate of Great Britain.
(Signed) SICILIANI, Delegate of Italy.
(Signed) CONTZESCO, Delegate of Roumania." [p120]
-----------------------------------------------------------------------------------------------------------------
[378] At the time this Protocol was submitted to the Conference, the;
President, after reading out its terms, stated that it would be published as
an annex to the Protocol of the meeting: [p121]
"Le Pr�sident rappelle � la Conf�rence que, lorsqu'elle s'est occup�e
d'�tablir la comp�tence de la Commission europ�enne, il avait �t� entendu,
sur la proposition du pl�nipotentiaire de Roumanie, que la Commission
europ�enne fixerait elle-m�me l'interpr�tation de l'article VI du Statut
dans un protocole sp�cial qui serait communiqu� � la Conf�rence.
Ce protocole, sign� des quatre d�l�gu�s � la Commission europ�enne, est
parvenu au secr�tariat g�n�ral de la Conf�[p121]rence : le Pr�sident en
donne lecture et d�clare qu'il sera vers� aux archives de la Conf�rence et
publi� en annexe au protocole de la pr�sente s�ancel."[FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"The Presideat draws the attention of the Conference to the fact that at the
time when it was considering the definition of the compsfcence of the
European Commission, it was understood that, upon the proposal of the
Roumanian plenipotentiary, the European Commission would itself interpret
Article VI of the Statute in a special Protocol, which would be communicated
to the Conference.
This Protocol, signed by the four delegates to the European Commission, was
received by the Secretariat-General of the Conference; the President, after
reading its terms, states that it would be placed in the archives of the
Conference and published as an annex to the protocol of this meeting."
-----------------------------------------------------------------------------------------------------------------
[379] All the members of the Conference were in agreement as regards the
President's statement.
[380] The obligatory character of the Protocol has rightly been disputed,
since, being in itself an international agreement, it must be annexed to the
Treaty and ratified under the same conditions. It is only then that its
provisions acquire the same obligatory force as the treaty to which it
refers. But although a protocol, which has not been annexed to a treaty and
has not been ratified, may not have the obligatory force of a treaty, it
must at least have an interpretative value. If the Protocol does not possess
obligatory force as an act of the Danube Conference, this force must be
attributed to it on another ground: it is a decision of the European
Commission which is not submitted to ratification by the Powers and which
establishes the conditions under which the Commission's powers were in fact
exercised in the past.
[381] The European Commission had been invited to the Paris Conference by
the Conference of Ambassadors as an organized international institution, an
independent body, to give to the Conference entrusted with the task of
drawing up the Definitive Statute any useful information for that purpose.
[382] It cannot be said that the European Commission exceeded its powers by
giving a decision on matters which were submitted to it by the Danube
Conference, because the European Commission confined itself to taking note
of the de facto conditions under which its powers had been exercised in the
past, and to the limits imposed upon its powers.
[383] Assuming that the Protocol had no obligatory force either as an act of
the Conference relating to the Statute of the [p122] Danube or as a decision
of the European Commission, its interpretative value, as an act of the
Conference, might at least be of service in arriving at the meaning and
scope of Article 6. The Protocol lays down:
(1) that Article 6 does not introduce "any modification in the conditions
under which or as to the limits within which this administrative regime has
hitherto been applied";
(2) that the powers of the Commission have not been either increased or
diminished by virtue of Article 6 and that they should continue "to be
exercised on the river in the same way as heretofore in conformity with the
treaties�;
(3) that the treaties in question are those "to which all theStates
represented have adhered"; this excludes the Treaty of London ;
(4) that as regards the Galatz-Braila sector, the European Commission "will
continue as in the past to maintain the navigable channel and its pilotage
service".
[384] The Protocol lays down that as regards the sector in dispute, the
European Commission of the Danube has not exercised its rights in the past
by virtue of the Treaty of London, which extended its jurisdiction up to
Braila, but that it has in fact exercised certain technical powers which
were not disputed by the Roumanian Authorities. Consequently, it follows
from this Protocol that jurisdictional powers were not exercised on the
Braila-Galatz sector.
[385] Article 6 of the Statute of the Danube, being intended to transform
the de facto situation before the war into one de jure, was able by the
words under the same conditions as before to confer to certain powers a
legal basis (technical powers, the maintenance of the navigable channel and
pilotage); and, by the words without any modification of its existing
limits, to extend up to Braila the territorial jurisdiction of the European
Commission which henceforward would have the right of exercising its
technical powers as far as that limit.
[386] If one is of the opinion that the Statute of the Danube has effected a
transformation of this nature, it can only refer to activities the exercise
of which is undisputed (the pilotage service, the maintenance of the
navigable channel). This transformation cannot apply to activities against
which the Roumania Government has repeatedly protested, nor to [p123]
activities which had been merely tolerated, because the private law
principle that such activities cannot be the basis of either possessive or
prescriptive rights must be applied to the present case. If it were
otherwise, there would seem to be no reason why this ambiguous state of
affairs should not continue in the future. A situation at law created for
the benefit of the European Commission only, would no longer be a
continuation of the de facto situation prior to the war, and consequently
the provisions of Article 6 which have been invoked in the present case
would be violated.
[387] The exercise in fact before the war of the powers of the Commission on
the sector in dispute can also be inferred from the Act called "Provisional
Agreement of 1922". This so-called Agreement, which did not, according to
the three Governments, lead to a definitive agreement because there was no
agreement as regards the milestone below Galatz, is in reality a decision of
the European Commission upon points unanimously accepted by the members of
the Commission. Now unanimity existed as regards the observation that
Roumania should exercise full and complete rights of jurisdiction on the
Galatz-Braila sector and that the European Commission should continue
dealing with pilotage and work on the channel exclusively. This decision
could only have been adopted by the European Commission of the Danube in
pursuance of Article 6 of the Statute, that is to say, in conformity with
the conditions under which and with the limits within which its own powers
had been exercised in the past.
[388] This decision of the European Commission is of great moment; it is in
complete agreement with the Interpretative Protocol and with the provisions
of the Statute of the Danube.
[389] The following are the terms of this decision:
"(1) Should a breach of the Navigation Regulations of the European
Commission of the Danube or a shipping accident come to the notice of a
pilot during the journey between Braila and the downstream limit of Galatz (
. . . . milestone), he shall inform the pilotage agent at the first port at
which the vessel calls and at which there is a pilotage agent. The latter
shall transmit the pilot's report to the inspector of navigation and send a
copy to the competent territorial authority at the place where he resides
[p124]
(2) The territorial authority will proceed to prepare the case and, should
it be necessary, to take the evidence of a pilot, the latter shall be
summoned to attend at the request of the territorial authority, through the
European Commission of the Danube.
(3) The territorial authority shall give judgment, solely in respect of the
captain of the vessel or the delinquent, and not in respect of any agent of
the Commission.
(4) In all cases in which a pilot is concerned, the territorial authority
shall ex officio send to the European Commission of the Danube copies of the
proceedings and of the judgment or order of non-lieu (dismissing the case)
rendered by him. In other cases, these documents shall only be communicated
at the express request of the Commission.
(5) Should the local authority learn that in this sector damage has been
done to the property of the Commission, he will automatically take action
and inform the Commission as stated above.
(6) When the documents or decisions rendered by the territorial authority
have been transmitted to it, the Commission shall examine the case solely in
so far as the pilot is concerned and shall take such action as may be
necessary. In case of necessity it may ask the territorial authority for
additional information.
(7) Fine inflicted as a result of sentence passed shall be collected by the
local authorities or for their benefit. As an exception, in the case of
damage done to property of the Commission, the fine incurred by the
delinquent shall be estimated having regard to the value of such damage, the
amount of which shall be fixed by the European Commission of the Danube.
This sum shall be paid to the European Commission of the Danube.
(8) Pilots shall remain solely under the authority and jurisdiction of the
European Commission of the Danube."
[390] If it is held that neither this decision nor the Protocol have any
legal value, it must be ascertained what acts have in fact been performed by
the European Commission on the Galatz-Braila sector. For only such acts have
acquired legal sanction by the provisions of Article 6. And the onus of the
proof is not on Roumania, but on the three Powers who contend that the
European Commission has in fact, exercised all its powers on the sector in
dispute and that consequently the general authority of the Commission which
formerly extended as far as Galatz has been extended as far as Braila.
[p125]
[391] Though the Roumanian representative has admitted in Court that
technical powers have been exercised on the sector in dispute, whilst
stating that the Roumanian Government has never permitted the exercise of
jurisdictional powers, since Roumania has never adhered to the Treaty of
London, it cannot be concluded that all powers could be lawfully exercised,
because that is a matter of fact which cannot be presumed, but must be
proved by the Parties who advance that argument in this case.
[392] The Roumanian Government maintains that any interpretation of the
Statute of the Danube which was directly or indirectly conducive to the
application of the Treaty pf London, i e. to the extension of all the powers
of the European Commission as far as Braila, amounts to a violation of its
sovereign rights, since such an interpretation is not in accordance with the
intention expressed in its name.
[393] At the Conference of Versailles, in connection with the submission of
the first draft of Article 346 to the Commission of Ports, Waterways and
Railways, the Roumanian plenipotentiary asked for a clear and precise
wording to convey the idea that the jurisdiction of the European Commission
extended as far as Galatz. This observation gave rise to no protest.
[394] At the Danube Conference, this declaration was repeated in order to
state that the Treaty of London was not binding on Roumania. The discussions
which took place in connection with Article 43, which became 41 (Protocol
No. 62, meeting of June 15th, 1921) show that the Conference was in
agreement with the views of the Roumanian plenipotentiary; for the words:
"all treaties. which are in force" mean treaties in so far as they have been
ratified by all participating States.
"The Roumanian plenipotentiary recalled that as Roumania had not adhered to
the Treaty of London, it was indispensable either to explain in the actual
text of Article 43 that what was meant was the maintenance of all the said
international instruments in so far as the various States had adhered to
them, or to include a statement to that effect in the final protocol. In
whatever form, the Roumanian delegation wished to make" it clear that in
accepting Article 43 in its present form, it only meant to recognize as
still in force those treaties to which Roumania was a Party. In [p126]
particular the Treaty of London of 1883 had not been accepted by the
Roumanian Government and, in so far as it was concerned, that Treaty did not
exist.
The President observed that the present wording of Article 43 should satisfy
the Roumanian plenipotentiary, as it in no way modified the pre-existing
situation of fact in regard to the treaties concluded by the various States
which were signatories to the Statute of the Danube. That article in no way
prejudiced the right of each State to regard as valid only those treaties
ratified by it.
The Belgian plenipotentiary said that the interpretation given by the
Roumanian plenipotentiary added nothing to the text. It was the normal and
natural interpretation of it and changed nothing therein.
The Roumanian plenipotentiary noted the statements made and added that they
appeared to him adequate, without making any special addition to prevent the
possibility of any subsequent interpretation differing from that of the
Conference."
[395] Similar statements were made by the Roumanian plenipotentiary in
connection with Article 6; and the Protocol, which ruled out the Treaty of
London, gave the interpretation of that article. The British delegate on the
Conciliation Commission recognized that: "It was on the strength of the
Protocol that the Roumanian Government had agreed to sign the Statute of the
Danube." If the Protocol, relying on which Roumania signed, has .no value in
law, as Roumania can only be bound in so far as she herself has willed, the
conclusion is that she has not consented to the Statute of the Danube, and
that a new conference must be held.
***
[396] A comparison between the Statute of the Danube and the Treaty of
Versailles shows some profound differences. In the first place it is to be
observed that Article 5 of the Statute of the Danube, which lays down that
"the European Comission retains the powers which it possessed before the
war. ...� is a reproduction of Article 346 of the Treaty of Versailles: "The
European Commission of the Danube reassumes the powers it possessed before
the war." Now it has already been shown that the word "powers" in Article 5
[p127] of the Statute means "rights" under Article 1 of the Additional Act
of Galatz "of 1881. Article 346 of the Treaty of Versailles therefore refers
to the rights of the European Commission conferred upon it by the treaties
and international instruments relating to the Danube and its mouths.
[397] Whilst Article 5 of the Statute of the Danube has its counterpart in
Article 346 of the Treaty of Versailles, the same is riot the case as
regards Article 6 which by the words "under the same conditions as before
and without any modification of its existing limits, over the maritime
Danube", refers to the pre-war situation of fact which is converted by this
clause into a situation at law. As this clause has no counterpart in the
Treaty of Versailles, it is to be concluded that in regard to the extent of
the authority of the European Commission, that Treaty only contemplated the
situation at law as established by previous treaties and instruments.
[398] Article 346 (Treaty of Versailles):
"The European Commission of the Danube reassumes the powers it possessed
before the war�"
[399] Article 347:
"From the point where the competence of the European Commission ceases, the
Danube system referred, to in Article 331 shall be placed under the
administration of an International Commission composed as follows��
[400] The interpretation placed on Article 6 to the effect that it can
legalize certain powers, but not others which were not in fact exercised
before the war, leads to a result contrary to the Treaty of Versailles which
does not allow any such consequences to be presumed, since from the mouths
to the point where the authority of the European Commission of the Danube
ceases, the Commission's powers are to be exercised in a uniform and
identical manner.
[401] A comparison between the articles of the Treaty of Versailles and
Articles 6 and 9 of the Statute of the Danube brings out a great difference
as regards the territorial extent of the authority of the European
Commission. Whereas the Treaty of Versailles says that "from, the point
where the competence of the European Commission ceases" the Danube [p128] is
to be placed under the administration of the International Commission, thus
making the territorial authority of the International Commission dependent
on the point where that of the European Commission terminates�and this point
being at Galatz, under Article 53 of the Treaty of Berlin, the International
Commission's authority must extend from that point to Ulm; on the contrary,
the Statute of the Danube, in Article 9, fixes Braila as the terminal point
of the authority of the International Commission, and, in Article 6, says
that the authority of the European Commission extends from the mouths of the
river "to the point where the, authority of the International Commission
commences". The authority of the European Commission is thus extended from
Galatz to Braila In other words, whereas the Treaty of Versailles is
concerned with the internationalization of the river from the point where
the authority of the European Commission ends, the Statute, in Article 3, is
concerned with the internationalization of the whole river by the creation
of two regimes, one for the fluvial Danube under the authority of the
International Commission, which extends over the fluvial Danube as far as
Braila (Article 9) and the other for the maritime Danube under the authority
of the European Commission, beginning at this point and extending to the
mouths (Article 6).
[402] Though the Statute of the Danube has made changes of this kind, it
will be easy to show that the Conference of the Danube was not entitled to
do so; for it had no right to modify the powers of the European Commission.
[403] It is indisputable that this Conference had to draw up the Definitive
Statute of the Danube, and that being so, one is tempted to believe that all
the provisions of the Treaty of Versailles might be modified. The intention
of the Powers was that the Commission entrusted with the drawing up of the
Statute of the Danube should concern itself with the part of the river above
that which had been already internationalized and placed under the authority
of the European Commission.
[404] Article 331 of the Treaty of Versailles contains the following
enumeration:
"The following rivers are declared international: The Elbe (Labe) from its
confluence with the Viltava (Moldau), and the Vltava (Moldau) from Prague;
[p129] The Oder (Odra) from its confluence with the Oppa; The Niemen
(Russstrom-Memel-Niemen) from Grodno; The Danube from Ulm ..."
[405] The fact that this text omits the Rhine, which is the most important
of the international rivers, leads to the conclusion that the
internationalization of the Danube does not apply to the portion of the
river which already possesses that character, and that it is to begin at the
point where the authority of the European Commission ends; and that,
consequently, the Conference of the Danube had no right to deal with the
powers of that Commission.
[406] The Statute of the Danube could not modify the provisions of the
Treaty of Versailles; for 26 Powers had taken part in that Treaty, whereas
at the Convention on the Danube only twelve Powers were represented, eight
with the right to vote, namely: Belgium, France, Great Britain, Greece,
Italy, Roumania, Yugoslavia and Czechoslovakia, and four in an advisory
capacity, namely: Germany, Austria, Bulgaria and Hungary.
[407] Under Article 349 of the Treaty of Versailles and the corresponding
articles of the other Peace Treaties, Germany, Austria, Hungary and Bulgaria
had undertaken to accept the r�gime laid down by a conference on the Statute
of the Danube. Of course, that conference could only make regulations for,
and not modify, the regime of the Danube as accepted by those Powers under
the Peace Treaties, particularly since the regime of the Danube does not
concern particular interests, but seeks to guarantee in a uniform manner the
right of navigation which, under Article 52 of the Treaty of Berlin, is
"recognized as of European interest". The navigation of the Danube therefore
is incapable of two r�gimes, one for the Powers signatory to the Statute of
the Danube and the other for the Powers signatory to the Peace Treaties.
[408] Even though the Conference had the power to: create new situations at
law, it was unable to do so in the face of-the opposition of the Roumanian
delegate, on whose territory the right of exercising jurisdiction was being
claimed:
[Translation.] "I consider, as I have often said, that this Conference must
respect the provisions of treaties and that it must conform to such
provisions. [p130]
The European Commission was constituted and kept in being by the treaties
which carefully regulated its composition; its rights and its powers. The
Conference cannot touch upon any of these points without going beyond its
powers.
If therefore the Conference is of the opinion that this Commission was
maintained by the Peace Treaties; we can only refer to provisions of earlier
treaties, as well as to provisions of the new treaties in so far as they
relate to; the organization and functions of this Commission..."
[409] The representative of the British Government before the Conciliation
Commission entirely approved the; words of the Roumanian delegate:
�That shows that if you: take th articles of the Treaty of Versailles and
consider them critically the framers of that Treaty must have intended that
the Conference which was to meet and draw up the Definitive Statute of the
Danube was to deal only with so much of the Danube as had not up till 1914
been effectively internationalized. That contention which I am laying before
you is exactly the view that was taken by the Roumanian representative . . .
when he was in Paris."
[410] And later on:
"The article in the Treaty of Versailles which is really the basis of all
our work, I; have already had occasion to read this morning. By it, the
European Commission of the Danube reassumes the powers it possessed before
the war."
[411] The French Memorial comes to the same conclusion:
"Il appara�t clairement que l'article 346 du Trait� de Versailles est
toujours en vigueur et qu'il reste � l'heure actuelle la base juridique des
comp�tences de la Commission europ�enne.� [FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [ Translation.]
"It is clear that Article 346 of the Treaty of Versailles remains in force
and that at the present moment it is the legal basis upon which the
jurisdiction of the European Commission rests."
-----------------------------------------------------------------------------------------------------------------
[412] It is then the Treaty, of Versailles which must be applied. In
applying the provisions of the Treaty of Versailles it must be admitted that
at the point; where the jurisdiction of the European Commission comes to ah
end, the Danube system will be placed under the control of the International
Commission. And since this is at Galatz, in conformity [p131] with Article
53 of the Treaty of Berlin, it follows that the International Commission
exercises its powers from Ulm to below Galatz.
[413] This conclusion must be arrived at because the Statute of the Danube
is based on the Treaty of Versailles, and the Paris Conference could not
modify the powers of the European Commission.
***
[414] In order to reply to the other questions, the following points must be
considered:
(a) What is the upstream limit to the powers of the European Commission?
(b) At what exact point must the line of demarcation between the two r�gimes
be fixed?
(c) What are the power which are exercised on the sector in dispute and over
the ports of Galatz and Braila?
[415] Article 53 of the Treaty of Berlin determines the "upstream limit" of
the powers of the European Commission, that is to say the point where these
powers come to an end, since if specifically states that the Commission
shall exercise its powers "as far as Galatz".
[416] On the other hand, Article 3.of the Navigation Regulations stipulates
that:
"L'inspecteur est sp�cialement pr�pos� � la police du bas Danube en aval de
Galatz, � l'exclusion du port de Soulina.� [FN1]
-----------------------------------------------------------------------------------------------------------------
[FN1] [Translation.]
"The Inspector is in special charge .of the policing of the Lower Danube
downstream from Galatz with the exception of the Port: of Sulina�
-----------------------------------------------------------------------------------------------------------------
[417] The use of the expressions "below Galatz" and "with the exdeptioil of
the Port of Sulina" show's that the powers of the European Commission should
be exercised over the navigable channel and not over the ports or over the
river banks. This-principle is confirmed by the Special Instructions which
were, given to the Navigation Inspector' of the Lower Danube and which were
adopted by the, European Commission of the Danube on May 30th, 19,13
(Protocol No. 845). [p132]
[418] The following are the terms of these Instructions:
"� 1.
In conformity with Article 3 of the Navigation and Police Regulations issued
by the European Commission of the Danube on November 10th, 1911, and
applying to that part of the Lower Danube which is below Galatz, the
Navigation Inspector superintends the policing of the Lower Danube with the
exception of the Port of Sulina.
The Inspector bears the character of a public officer, and his acts in
relation to maritime matters within his jurisdiction have the same value as
acts drawn up by the public authorities.
� 2.
The prerogatives of the Inspector more particularly include:
The supervision of vessels moving between Galatz and the upper limits of the
Port of Sulina; and the supervision of the towing paths as far as concerns
the river police, subject to the same limits;
River pilotage service;
The supervision of work in connection with lighterage in so far as it is
carried out on the river outside the port of Sulina;
Salvage work and the first protective measures in case of accidents taking
place on the river.
Finally, the Inspector acts as a judicial authority of first instance, for
adjudicating upon contraventions committed in defiance of the provisions of
the Police and Navigation Regulations in so far as they were committed or
recorded within the limits of his jurisdiction.
The Inspector cannot go outside the domain over which extends his
jurisdiction without obtaining leave from the Commission."
[419] It should be noted that neither the Treaty of Berlin nor the
Additional Act of Galatz of 1881 fixed the point "below Galatz" where these
powers come to an end. That can be explained by the fact that the port of
Galatz was on the one hand taken out of the jurisdiction of the European
Commission, and, on the other hand, that it was capable of being continually
enlarged to answer to the economic needs [p133] of the country. As a result
of the world war this portthe largest of a country which has almost trebled
its population - was bound to develop as far as the mouths of the Pruth
(71�milestone). It is moreover unanimously admitted that the notion of a
"port" does not refer to an agglomeration of buildings but a territorial
area (Opinion No.11, p.40). The zone comprised between the Galatz-Reni
railway, the Danube and the Pruth, represents the area necessary for the
development of the port and for the creation of the free zones provided for
by Article XXI of the Statute of the Danube. And this particularly so,
since, by the incorporation of Bessarabia, the Pruth, which is a navigable
waterway, no longer forms a boundary but in its entire course traverses
Roumanian territory.
[420] Moreover, according to the Roumanian Regulations of 1879, the
jurisdiction of the captain of the port of Galatz extends upto the point
(71� milestone) where the powers of the customs office of the port are
exercised (Article 138 of the Regulations). The point where the powers of
the European Commission cease, being fixed "below Galatz", it is from that
point, in conformity with Article 347 of the Treaty of Versailles, that the
International Commission of the Danube ensures the navigation of the river.
The ports of Galatz and Braila should come under the port regime which has
been established for ports on the international river system, as provided by
Articles XX, XXI, XXII of the Statute of the Danube.
[421] Over the Braila-Galatz sector, Roumania having always by courtesy
recognized the technical powers of the European Commission of the Danube,
there will be two regimes: the general regime which applies to international
rivers and which respects the rights of jurisdiction of the territorial
authorities, and the regime recognized de facto by Roumania: the pilotage
services and the maintenance of the navigable channel by the European
Commission of the Danube.
[422] On these ground, I am of the opinion:
I� (a) That, in accordance with the law in force, the European Commission of
the Danube does not possess any powers over the Galatz-Braila sector. [p134]
(b) That the powers of the European Commission extend on the Lower Danube as
far as below Galatz, excluding that port.
2� That the Galatz-Braila sector and the navigable channel which crosses the
ports of Galatz and Braila come under the jurisdiction of the International
Commission of the Danube.
3� That the line of demarcation between the powers of the European
Commission and those of the International Commission must be fixed at the
71� milestone.
(Signed) Demetre Negulesco. [p135]
Annex to opinion No.14
I. Documents Transmitted By The Secretariat Of The League Of Nations
Extracts from the following Conventions and Regulations concerning the
navigation of the Danube.
Treaty of Paris (March 30th, 1856).
Public Act relating to the Navigation of the mouths of the Danube (November
2nd, 1865).
Protocols of Conferences held at Paris in 1866 between the representatives
of Austria, France, Great Britain, Italy, Prussia, Russia and Turkey,
concerning the affairs of the Danubian Principalities and the navigation of
the Danube.
Protocol No. 3 (March 28th).
� � 6 (April 24th).
� � 7 (May 2nd).
� � 8 (� 17th).
� � 10 (June 4th).
Treaty of London (March 13th, 1871).
Treaty of Berlin (July 13th, 1878).
Additional Act to the Public Act of November 2nd, 1865, relating to the
Navigation of the mouths of the Danube (May 28th, 1881).
Treaty of London (March 10th, 1883).
Treaty of Versailles (June 26th, 1919).
Articles 331-338 and 346-349.
Navigation and Police Regulations applicable to that part of the Danube
situated between the Iron Gates and Braila.
Letter from the Foreign Office to the Secretary-General (September 6th,
1924).
Appendix: British Memorial.
Advisory and Technical Committee for Communications and Transit. Minutes of
the seventh session, held at Geneva, November 26th-29th, 1924.
Memorials transmitted in 1924 and 1925 by the representatives and experts of
the British, French, Italian and Roumanian Governments to the
Secretary-General of the League of Nations.
Special Committee. Minutes of the 1st session, held at Geneva, February
18th-19th, 1925.
Special Committee. Verbatim record of the 2nd session, held at Geneva, March
30th -
April 2nd, 1925.
Letter from M. Carlo Rossetti, Italian delegate on the Danube Commission, to
M. Burckhardt, President of the Special Committee (May 21st, 1925; with 5
annexes). [p136]
Letters from M.Contzesco, Roumanian delegate on the European Commission of
the Danube, to M. Burckhardt, President of the Special Committee
(June,1925).
Report of the Special Committee (July 2nd, 1925 ; with 5 annexes).
Advisory and Technical Committee for Communications and Transit. Minutes of
the 8th session, held at Geneva, July 24th-3Oth, 1925.
Letter from the President of the Special Committee to the President of the
Advisory and Technical Committee, transmitting Committee's report (September
17th, 1925).
Letter from the President of the Special Committee to the President of the
Advisory and Technical Committee, transmitting the agreement concluded
between the representatives of the Governments on the European Commission of
the Danube, together with the Protocol signed by the same representatives
(September 25th, 1926).
Declaration made by M. Contzesco, Minister Plenipotentiary, Roumanian
delegate on the European Commission of the Danube, at the meeting held at
Geneva, September I7th-i8th, 1926, between the members of the Special
Committee and the four delegates to the European Commission.
Agreement of September 18th, 1926, between the French, British, Italian and
Roumanian Governments.
Letter from the President of the Advisory and Technical Committee for
Communications and Transit to the Secretary-General of the League of
Nations, dated September 25th, 1926.
Report relating to the jurisdiction of the European Commission of the
Danube, presented by M. Guerrero, and adopted on December 9th, 1926, by the
Council.
Minutes of the Council of the League of Nations, 43rd Session, 4th meeting,
Thursday, December 9th, 1926.
Letter from the President of the Special Committee to the President of the
Advisory and Technical Committee (February 24th, 1927).
Two maps of areas under the Port Captains.
Series of maps of the Danube submitted at the request of the Italian
Government (this series is identical with that which has been transmitted by
the British Government; see below).
II. Documents Transmitted in the Name of the Interested Governments or Filed
by Their Representatives
A. International agreements and regulations
Articles 108-116 of the Final Act of the Congress of Vienna, 1815 (in
English).
Articles 15-20 of the Treaty of Paris, 1856 (in English)
Public Act of Galatz of November 2nd, 1865 (in English)
Articles 52-57 of the Treaty of Berlin, 1878 (in English).
Roumanian Regulations concerning the policing of the ports and shores of the
Danube, March 24th, 1879 (r�sum� of - ).
Additional Act to the Public Act of Galatz, May 28th, 1881 (in English).
[p137]
Treaty of London, 1883 (in English).
Notice to Navigators (No. 1025 - Galatz, May 18th/30th, 1893).
Notice to Navigators No.4 (in English), November 10th, 1911, brought up to
date 1912, European Commission of the Danube.
Regulations of Navigation and Police applicable to the Lower Danube,
November 10th, 1911 (brought up to date 1923).
Extract from the Convention instituting the Definitive Statute of the
Danube, 1921 (in English).
B. Extracts from protocols and minutes of Conferences and International
Commissions
Protocols of the London Conferences: February - March, 1883.
Extract from the Protocol of the meeting of the European Commission of the
Danube, August 26th/September 7th, 1887.
Minutes of the deliberations of the Executive Committee concerning the
drafting of the third memorandum on the works for the improvement of the
course of the Lower Danube, April 13th, 1888.
Extracts from the minutes of the Commission on the international regime of
ports, waterways and railways of the Peace Conference, 1919.
International [Conference for the institution of the Definitive Statute of
the Danube, Protocols Nos. 1 to 29, and 30 to 68 (1920-1921).
Minutes of the International Commission] of the Danube; seventh plenary
session, held at Bratislava; minutes of November 14th and 16th, 1922.
Report relating to Navigation on the Danube, presented to the Advisory and
Technical Committee for Communications and Transit of the League of Nations
(C. 444 (a) 164 M. a. 1925 VIII).
Sentence pronounced by the European Commission of the Danube, dated October
12th, 1926.
C. Diplomatic correspondence
Letter from the Roumanian delegate on the European Commission of the Danube
to that Commission (No. 71 - June 13th, 1879).
Letter from the Minister for Foreign Affairs to the Roumanian Commissioner
(June 15th, 1879).
Extract from the confidential letter from the Minister for Foreign Affairs
to the Roumanian delegate on the European Commission of the Danube (No.
18646 - November 1st/13th, 1880).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Minister for Foreign Affairs (No. 41 - 1881).
Letter from the Roumanian delegate on the European Commission to the
Minister for Foreign Affairs (No. 46 - 1881).
Confidential and personal report of the Roumanian Charg� d'affaires at
Constantinople to the Minister for Foreign Affairs (No.359 - May 18th/30th,
1881).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Minister for Foreign Affairs (June 28th, 1881). [p138]
Letter from the Inspector of Navigation of the European Commission at
Toultcha to the European Commission of the Danube at Galatz (No.m865 -
September 1st, 1881).
Letter of April 28th, 1882, from the French Minister for Foreign Affairs to
the French Minister at Bucharest.
Letter of June 12th, 1882, from the Austro-Hungarian Minister for Foreign
Affairs to the French Ambassador at Vienna.
Letter of June 12th, 1882, from the French Minister at Bucharest to the
French Minister for Foreign Affairs.
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No.54 - 1883).
Earl Granville to H.E. Prince Ghica (March 10th, 1883 - in English).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No.7051 - May 2nd/14th, 1883).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 7088 - May I2th/24th, 1883).
Letter from Prince Ghica to Lord Granville, dated June 14th, 1883, and
observations of the Roumanian Government relating to the Treaty of London.
Letters of November 7th and 22nd, 1883, and of March 15th, 1884, from the
French delegate at Galatz to the French Minister for Foreign Affairs.
Letter of April 22nd, 1884, from the French Minister for Foreign Affairs to
the French delegate at Galatz.
Letters of April 24th, May 2nd, May 5th and November 20th, 1884, from the
French delegate at Galatz to the French Minister for Foreign Affairs.
Letter from the Consul of Norway and Sweden at Galatz to the European
Commission of the Danube (No.32 - April 22nd, 1887).
Letter from the European Commission of the Danube to the Roumanian delegate
on the European Commission of the Danube (No.1908 - August 1st/13th, 1887).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No. 14 - April 8th/ 20th, 1888).
Letter from the Minister for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 155 - April I3th/25th, 1888).
Letter from the European Commission of the Danube to the Roumanian delegate
on the European Commission of the Danube (No. 2040 - December 31st, 1888).
Report by M. Balaceanu, Roumanian delegate, to the Ministry for Foreign
Affairs (No. 19�March 18th/3oth, 1892). [p139]
Letter from the European Commission of the Danube to MM. Gsiller,
Austro-Hungarian delegate on the European Commission of the Danube, and G.
Cogordan, Minister Plenipotentiary, French delegate on the European
Commission of the Danube (No. 432 � March 20th, 1892).
Letter from the European Commission of the Danube to the Roumanian delegate
on the European Commission of the Danube (No. 936 - June, 1892).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 15404 - August 4th, 1892).
Letter from the resident-engineer of the European Commission of the Danube
to that Commission (No. 319 - September 15th, 1892).
Letter from the European Commission of the Danube to the Roumanian delegate
on the European Commission of the Danube (No. 1674 - September 21st, 1892).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No. 144 - November 1oth/22nd, 1892).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (1893).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No. 7 - April 21st, 1893).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No. 16 - May 8th, 1893).
Cipher telegram from the Ministry for Foreign Affairs to the Roumanian
delegate on the European Commission of the Danube (No. 10161 - May
10th/23rd, 1893).
Cipher telegram from the Roumanian delegate on the European Commission of
the Danube to the Ministry for Foreign Affairs (No. 21 - May 12th, 1893).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (May 19th, 1893)-
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (No. 23 - May 25th, 1893).
Letter from the Inspector of Navigation at Toultcha to the European
Commission of the Danube (No. 1317 - June 1st, 1893).
Telegram from the Roumanian delegate on the European Commission of the
Danube to the Ministry for Foreign Affairs (No. 106 - September 1st, 1893).
Letter from the same to the European Commission of the Danube (No. 115 -
September 2nd, 1893).
Letter from the same to the Ministry for Foreign Affairs (No. 126 -
September 27th, 1893). [p140]
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 24, 603/93�January 22nd, 1894).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Afiairs (No. 19 - February 3rd, 1894).
Letter from M. Lahovary, Minister for Foreign Affairs,' to M. Olanesco,
Minister for Public Works (No. 6382 - March 20th, 1894).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 7182 - April 9th, 1894).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (1895).
Telegram from the Commander of the Roumanian Fleet to the Ministry for
Foreign Affairs (No. 13 - May 6th, 1895).
Letter from the Roumanian delegate on the European Commission of the Danube
to the Ministry for Foreign Affairs (May 6th, 1895).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube {May 4th/i6th, 1895)-
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 8823 - May 12th, 1895).
Letter from the Ministry for Foreign Affairs to the Roumanian delegate on
the European Commission of the Danube (No. 5736 - April 17th, 1906).
Letter from the French delegate to the President of the European Commission
of the Danube at Galatz (July 1st, 1921).
Letter from the President of the Special Committee to the President of the
Advisory and Technical Committee for Communications and Transit (February
24th, 1927).
D. Maps
Detailed plans of Galatz and Braila.
Map of the Maritime Danube.
Map of the course of the Danube from Braila to the sea.
Plans of the ports of Braila and Galatz and of their areas of expansion.
Delta of the Danube.
Mouths of the Danube: Ilan � Ada - Si.
Map of Roumania and of neighbouring countries (Galatz sector).
Map of Roumania and of neighbouring countries (Odessa sector).
Map of the Danube and its arms (6 sections). [p141]
III. Documents Submitted by the European Commission of the Danube
Protocols of the European Commission of the Danube (1856 � 1915; 1919 �
1926)
(The following protocols have been placed before the Court:
1865 Protocol No. 149 (Final), November 2nd.
1879 � � 333, June 13th.
� � 336, � 28th.
1881 � � 381, May 19th.
� � 384, � 28th.
1892 � � 508, November 21st.
1893 � � 514, May 20th.
1905 � � 700, October 25th.
� � 702, November 1st.
� � 704, � 7th.
1908 � � 749, May 4th.
1911 � � 806, November 10th.
1913 � � 845, May 30th.
1919 � � 2, October 16th.
� � 5, � 17th.
1920 � � 890, May 18th.
� � 900, � 27th.
� � 909, November 15th.
1921 � � 929, October 24th.
� � 940, November 9th.
1922 � � 955, May 24th.
� � 964, October 25th.
� � 965, � 26th.
� � 966, � 27th.
� � 968, � 28th.
1923 � � 977, May 19th.
� � 985, October 29th.
� � 987, � 30th
� � 989, � 30th.
1924 � � 1006, May 18th.
� � 1011, October 7th.
� � 1021, � 17th.
� � 1023, � 18th.
1925 � � 1025, May 13th.
� � 1026, � �.
� � 1035, October 21st.
1926 � � 1057, May 10th.
Map of the Danube and its arms (six sections).
IV. Collection of Documents Prepared by the Registry
(a) Treaties, Acts and Regulations
Treaty of Peace between Prussia and France (May 30th, 1814). (Text published
according to the Official Gazette of July 19th of same year. Paris, F.
Leprieur, 1815.)
Act of the Congress of Vienna (June 9th, 1815). (Nouveuu Recueil de Traites,
de Martens, vol. II, 1887, pp. 379 et seq.) [p142]
Draft of the peace preliminaries of February 1st, 1856 (D. Sturdza: La
question des Portes-de- Fer et des Cataractes du Danube, pp. 63 et seq.).
Treaty of Paris (March 30th, 1856). (Nouveau Recueil de Trait�s, de Martens,
vol. XV, pp. 770 et seq.)
Navigation Act of the Danube (November 7th, 1857). Ministerul Afacerilor
Straine. Cestiunea Dunareai Act si Documente.
Public Act relative to the Navigation of the mouths of the Danube (November
2nd, 1865). (Protocols of the European Commission of the Danube, 1865-1866,
vol.V.)
Regulations of Navigation and Police applicable to the Lower Danube (Annex
to the Public Act of November 2nd, 1865).
Austria, Russia and the United Principalities. Provisions relating to the
navigation of the Pruth (December 15th, 1866). (Nouveau Recueil de Trait�s,
de Martens, vol. XX, pp. 296 et seq.)
Austria-Hungary, Rouraania, Russia. Regulations of Navigation and Police
applicable to the Pruth (February 8th-9th (January 27th-28th), 1871).
(Nouveau Recueil de Trait�s, de Martens, vol. I, 2nd Series, pp. 485 et
seq.)
Treaty amending the Treaty of Paris of March 30th, 1856 (London, March 13th,
1871). (British White Papers, C. 314. 1871 (Reprinted in 1914).)
Treaty of San Stefano (February 19th (March 3rd), 1878). (Paris, Imprimefie
Nationale: Documents diplomatiques; Affaires d'Orient; Congr�s de Berlin
1878, pp. 12 et seq.)
Treaty of Berlin (July 13th, 1878). (Nouveau Recueil de Trait�s, de Martens,
vol. Ill, 2nd Series, pp. 449 et seq.)
Roumanian Regulations for Ports and Quays of March 24th, 1879. (Collection
of Treaties and Conventions concluded by Austria with foreign Powers from
1763. New series, vol. XI, Vienna, 1864, pp. 92 et seq.)
Regulations fixing the procedure of the European Commission of the Danube
(November 10th, 1879). (Annex to Protocol No. 337 of the European Commission
of the Danube.)
Special Instructions for the Inspector of Navigation of the Lower Danube,
with amendments to May 21st, 1891. (Annex to Protocol No. 845 (May 30th,
1913) of the European Commission of the Danube.)
Regulations of Navigation and Police applicable to the Danube between Galatz
and its mouths (May 19th, 1881). (Annex to Protocol No. 381 of the European
Commission of the Danube.)
Treaty of London (March l0th, 1883). (Protocols of the Conference held in
London concerning the navigation of the Danube, February. 8th) March 10th,
1883. Harrison & Sons, 1883.)
Additional Act to the Public Act of November 2nd, 1865, relating to the
navigation of the mouths of the Danube (May 28th, 1881). (Annex, to Protocol
No. 384 of the European Commission, of the Danube.) [p143]
Regulations for Navigation, River Police and Superintendence, applicable to
that part of the Danube between the Iron Gates and Braila (Annex to the
Treaty of London of March 10th, 1883).:(Paris, Imprimerie Nationale, 1883.)
Regulations of Navigation and Police applicable to the Lower Danube
(November 10th, 1911). (Annex to Protocol No. 806 of the European Commission
of the Danube.)
Extract from the Treaty of Versailles (June 28th, 1919). (Paris, Imprimerie
Nationale, 1919.)
Extract from the Treaty of St. Germain-en-Laye (September 10th, 1919).
(Paris, Imprimerie Nationale, 1919.)
Extract from the Treaty of Neuilly (November 27th, 1919). (Paris, Imprimerie
Nationale, 1919.)
Extract from the Treaty of Trianon (June 4th, 1920). (Paris, Imprimerie
Nationale, 1920.)
Extract from the Treaty of Paris relating to Bessarabia (October 28th,
1920). (Paris, Imprimerie Nationale, 1920.)
Resolutions adopted by the Assembly of the League of Nations on December
9th, 1920 (Organization of Communications and Transit).
Rules for the organization of general conferences and of the C. C. T.
(League of Nations, Doc. C. 15. M. 10. 1921. VIII).
Convention on the r�gime of navigable waterways of international concern
(Barcelona, April 20th, 1921). (League of Nations, Doc. C. 479. M. 327.
1921. VIII.)
Statute relating to the r�gime of navigable waterways of international
concern (Barcelona, April 20th, 1921). (League of Nations, Doc. C. 479. M.
327. 1921. VIII.)
Convention instituting the Definitive Statute of the Danube (Paris, July
23rd, 1921). (League of Nations, Treaty Series, vol. XXVI (1924), pp.
174-198.)
Convention and Statute on the international regime of maritime ports
(Geneva, December 9th, 1923). (League of Nations, Doc. C. 823. M. 321. VIII.
1923.)
(b) Protocols and Minutes of Conferences and of International Commissions
1. Protocols of Conferences held at Vienna (1855) between the
plenipotentiaries of Austria, France, Great Britain, Russia and Turkey:
Protocol No. 4 (March 21st, 1855).
� � 5 (� 23rd, � ).
2. Protocols of the Congress of Paris (February 25th�-April 16th, 1856):
Protocol No. I (February 25th, 1856).
� � II (� 28th, � ).
� � III-VI (March 1st-8th, 1856).
� � VII-IX (� 10th-14th, 1856).
� � X (� 18th, 1856).
� � XI-XV (� 18th-26th, 1856).
� � XVI (March 27th, 1856).
� � XVII (March 28th, 1856).
� � XVIII (March 29th, 1856). [p144]
3. Protocols of the Conferences held at Paris, from May 22nd to August 19th
1858, for the organization of Moldavia and Wallachia:
Protocol No. 18 (August 16th, 1858).
� � 19 (� 19th, � ).
4. Protocols of the River Commission of the Danube (1856-1859)
Protocol No. 1 (November 29th, 1856).
� � 2 (December 3rd, 1856).
� � 31 (August 15th, 17th and 29th, 1857).
5. Protocols of the Conferences held at Paris, in 1866, between the
representatives of Austria, France, Great Britain, Italy, Prussia, Russia
and Turkey, relating to the Danubian incipalities and to the navigation of
the Danube:
Protocol No. 3 (March 28th, 1866).
� � 6 (April 24th, � ).
� � 7 (May 2nd, � ).
� � 8 (� 17th, � ).
6. Protocols of the Conference of London (January 7th � March 14th, 1871),
for the revision of the stipulations of the Treaty of March 30th, 1856,
concerning the neutralization of the Black Sea:
Protocol No. 3 (February 3rd, 1871).
� � 4 (� 7th, � ).
� � 5 (March 13th, � ).
� � 6 (� 14th, � ).
7.Protocols of the Conference of Berlin (June - July 13th, 1878)
Protocol No. 9 (June 29th, 1878).
� � 10 (July 1st, 1878).
� � 11 (� 2nd, � ).
� � 12 (� 4th, � ).
� � 13-15 (July 5th-8th, 1878).
� � 16 (July 9th, 1878).
� � 17 (� 10th, � ).
� � 18 (� 11th, � ).
� � 19 (� 12th, � ).
� � 20 (� 13th, � ).
8.Protocols of Conferences held in London, February 8th - March 10th, 1883,
regarding the navigation of the Danube
Protocol No. 1 (February 8th, 1883).
� � 2 (� 10th, � ).
� � 3 (� 13th, � ).
� � 4 (� 20th, � ).
� � 5 (� 24th, � ).
� � 6 (March 1st, � ).
� � 7 (� 7th, � ).
� � 8 (� 10th, � ).
9. Protocols of the International Conference for the framing of the
Definitive Statute of the Danube (Paris, August 2nd - November 16th, 1920,
and April 5th�July 21st, 1921):
Protocol No. 1 (August 2nd, 1920).
� � 2 (� 4th, � ).
� � 3 (� 5th, � ). [p145]
Protocol No. 4 (September 6th, 1920).
� � 6 (� 16th, � ).
� � 8 (� 22nd, � ).
� � 9 (� 24th, � ).
� � 10 (� 30th, � ).
� � 11 (October 1st � ).
� � 12 (� 6th, � ).
� � 27 (November 12th � ).
� � 31 (April 8th, 1921).
� � 32 (� 11th, � ).
� � 33 (� 13th, � ).
� � 34 (� 15th, � ).
� � 35 (� 18th, � ).
� � 36 (� 20th, � ).
� � 38 (� 25th, � ).
� � 48 (May 19th, � ).
� � 49 (� 21st, � ).
� � 53 (� 28th, � ).
� � 58 (June 6th, � ).
� � 62 (� 15th, � ).
� � 63 (� 17th, � ).
� � 65 (� 22nd, � ).
� � 66 (� 23rd, � ).
� � 67 (� 25th, � ).
� � 68 (July 21st, 1921 � with annexes).
(c) Diplomatic Correspondence
The Minister for Foreign Affairs at Vienna to the Austro-Hungarian Charg�
d'affaires at Bucharest (April nth, 1882). (Sturdza, XXIV - 5, pp. 202-203.)
The French Minister at Bucharest to the Roumanian Foreign Minister (April
17th, 1882). (Sturdza, XXIV - 6, pp. 204-212.)
The Minister for Foreign Affairs at Bucharest to the Roumanian Envoy in
Paris (May 12th, 1882). (Sturdza, XXIV�15, pp. 229-236.)
The Roumanian Minister for Foreign Affairs to his delegate on the European
Commission of the Danube (May 15th, 1882). (Sturdza, XXIV - 18, pp.
250-251.)
The British Minister for Foreign Affairs to Viscount Lyons, in Paris
(October 28th, 1882). (Sturdza, XXIV - 22, pp. 261-262.)
Verbal Note of the French Government (November 4th, 1882. (Ibidem.)
The Minister for Foreign Affairs at Bucharest to the Roumanian Envoy in
Vienna (November 17th, 1882). (Sturdza, XXIV - 22, p. 265.)
The Minister for Foreign Affairs at Bucharest to the Roumanian Envoys in
London, Paris, Rome, Vienna, Berlin, Saint-Petersburg and Constantinople
(December 9th, 1882). (Sturdza, XXIV - 25, pp. 275-276.)
The Minister for Foreign Affairs at Bucharest to the Roumanian
representatives abroad (December 10th, 1882). (Sturdza, XXIV - 26, pp.
277-283.) [p146]
The Minister for Foreign Affairs in London to the representatives of Great
Britain (December nth, 1882). (Sturdza, XXIV - 28, pp. 285-286.)
The British Minister for Foreign Affairs to the British representative in
Vienna (January 19th, 1883). (Sturdza, XXIV - 63, p 645.)
The British Minister for Foreign Affairs to the British representative at
Sofia (January 24th, 1883). (Sturdza, XXIV - 65, p. 347.)
The Roumanian Minister in London to the British Minister for Foreign Affairs
(February 12th, 1883). (Sturdza, XXIV - 74, p. 367.
The Roumanian Minister for Foreign Affairs to the Roumanian Envoy in London
(May 24th, 1883). (Sturdza, XXIV - 32, p. 416 a. - 416 m.)
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