CONTROL OF RIVERS

New Zealand Herald, Volume LXXIII, Issue 22580, 19 November 1936, Page 8

CONTROL OF RIVERS

GERMANY'S NOTE INTERNATIONAL ASPECTS DISREGARD OF TREATIES' BT R. M. AT.GIE, Lecturer in International Law at Ancklsin;i University College. AUCMi »<"! Once again our cables are buzzing with the news that Germany proposes to disregard and, if need be, tear up one more international agreement. 'Wo are told that she proposes to ignore certain international agreements affectini' a group of named rivers and that, in future, she will take such individual action as to her shall seera proper and desirable.

There are, I think, a few facts concorning this momentous declaration that might usefully he made public. If we are to judge rightly, we must be sure of our historical background, and there arc centuries of political history and controversy behind the present question regarding international rivers.

I It is as well to deal with simple | cases first. Suppose that we are con- | sidering a river which lies wholly | within the territory of a single State* ! our Waikato and our Wanganui, for i example, lie completely within the jurisj diction of New Zealand, while, to tako another case, the Thames lies entirely within the kingdom of Great Britain. Now, it is clear beyond doubt that this Parliament of New Zealand has com- ' plete authority over the two New Zea- ! land rivers I have mentioned; it could ! establish customs offices at the mouth j of each, it could regulate the traffic | thereon, and, if need be, it could comj pletely exclude any foreign ship of ; any kind from using these waterways j for purposes of navigation. An exactly } similar argument would apply in the j case of the Thames so far as the authority of the .British Parliament is concerned. International Rivers The difficulties begin to crop up when we have to consider the case of an international river, that is, a river which flows through or between tlio territories of two or more independent j States. In our cables we are told, in j effect, that Germany proposes to take ! the law into her own hands with rej gard to several rivers, including the | Niemen, Oder, Elbe and even the far- ! famed Rhine itself. The Niemen flows ' in part through Lithuania and in p;ut i through East Prussia; the Oder and Elbe each flow through Czechoslovakia and Germany; the Rhine is the joitat concern of Switzerland, France, Germany and Holland. These are all international rivers in the true sense of tk term and each has been the subject of important and far-reaching international agreement. About three hundreds years ago there lived and worked in Holland a Dutchman whose ideals and opinions have influenced the course of history right down to our own time, and to whom we all look as the real founder of our modern system of international law. Hugo de Groote, or Grotiuf, as he was called, was a man of commanding genius; poet, lawyer, historian and theologian—he strove mightily to bring some sort of order and harmony into the mutual relations of States. As a part of his philosophy, he argued that the navigation of great international I rivers should be free to all peoples, and, although he based his opinion upon a reason that cannot now be supported, i yet we nevertheless owe to his genius : such rights as we have regarding freedom of river navigation. Theory and Practic® Practice, however, differed materially from theory. Up till the end of the 18th century, the great inter-State rivers of Europe were not regarded being free to all. It is true that they were commonly made open for com j merce, but each State claimed, and en • forced, the right to make whatevei regulations it pleased for the part of the river which lay within its own territory. Navigation by outsiders was a privilege, not a legal right. In 1804. at the suggestion of France, tolls on the Rhine were abolished. By the Treaty of Paris in 1814 it was agreed and declared that igation upon the Rhine should be free to ali the world. In the years that followed, i however, restriction and retrogression i became the established principle. Both ! England and the United States steafl--1 fastlv denied that any natural right j* of freedom and equality of navigation I existed with respect to inter-State j rivers on the North American Conti-

nent, Such rights as exist were entirely the creatures of. specifl»_treaties. Another change came in 1856, when that, mighty river the Danube was made equally free to all nations by a convention which has provided us with one of the most successful examples of international co-operation the worlu lias known. The Versailles Treaty

With the Peace Treaty of 1919, and its related agreements, came a _ .still further advance. The members of the League bound themselves to take effective measures for securing freedom of communications and of transit for all nations, and by the nnich-abuseu Treaty of Versailles, Germany agreed that her former enemies should enjoy in all German ports, and upon such rivers as the Elbe find Oder, .the same privileges as Germans themselves possessed with respect to vessels and property. The rivers were, in fact, internationalised in the true souse, and the Hags of all nations carried by vessels upon these waterways were to bo treated with perfect equality. These agreements were regarded as being of a temporary and provisional character and they were to be put nito proper shape, and revised where necessary, by later conferences. One such conference met at Barcelona in Spain in 1921, and was productive of excellent results. Now Germany bluntly tells us that she wants no more conferences regarding inter-State rivers and that she will settle this question as she herself thinks best. That is the position as it stands to-day. ° ,i. How is this continui'l treaty breaking on the part of Germany to be explained? 1' rom what 1 know of the matter, business morality is as high in Germanv as we have any right to expect it* to be. Yet, in international affairs, it cannot be said that this is the case . . , • What is the explanation tor- this very real difference between the conceptions of private and of internationa duty? The answer seems to be German policy has been greatly influenced by a theory to the effect thai States, as such, are "sovereign p er " sons," that they have wills of their own which reject all outside restriction a"" limitation. Whatever limitations MiiJi in fact, exist, do so just so long as the State is willing that they shall continue to exist. In other words, international law is only a kind of pul" 1 ' 1 law, and, as their Government has fi" ■ power to control the latter, it ha 3 equal authority to argue that it !' bound by the former only so long as '

is content to bo so bound. This is, no doubt, in our view, a n ] lS * chievous theory, but it exists and Mto i>e reckoned with. It has had powerful influence upon GermaP thought. The theory, if carried to 1 logical extreme, robs . internatiOß* agreement of every semblance of ' ina , ity and binding force. One :l "?| sincerely wish that the influence of t ])hilosophy had been much less Ilotl , able in German thought than it aplj® to have been. One would earnestly o » for its gradual disappearance w 1 political life.