File F. b. XVI
  Docket XII: I  

Advisory Opinion No. 14

 8 December 1927

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twelfth (Ordinary) Session

 

Jurisdiction of the European Commission of the Danube Between Galatz and Braila

 
     

Advisory Opinion

     
 
BEFORE: President: Huber
Former President: Loder
Judges:

Lord Finlay, Nyholm, Moore, Altamira, Oda, Anzilotti,

Deputy Judge(s): Beichmann, Negulesco
 
     
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1927.12.08_danube.htm
  
Citation: Jurisdiction of European Commission of Danube Between Galatz and Braila, Advisory Opinion, 1927 P.C.I.J. (ser. B) No. 14 (Dec. 8)
Publication: Publications of the Permanent Court of International Justice Series B - No. 14; Collection of Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1927
  
 

  

[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 Kröller (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 européenne exerce les pouvoirs qu'elle avait avant la guerre.
Il n'est rien changé aux droits, attributions et immunités qu'elle tient des traités, conventions, actes et arrangements internationaux relatifs au Danube et à ses embouchures."

Article 6.
"La compétence de la Commission européenne s'étend, dans les mêmes conditions que par le passé et sans aucune modification à ses limites actuelles, sur le Danube maritime, c'est-à-dire depuis les embouchures du fleuve jusqu'au point où commence la compétence 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 européenne] s'étend, comme il est dit à l'article 4, sur toute la partie du fleuve accessible aux navires de haute mer, c'est-à-dire de Braïla à 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'étend, comme il est dit à l'article 3, sur le Danube maritime, c'est-à-dire de la mer Noire jusqu'à Galatz, à l'exclusion des ports fluviaux autres que le port de Soulina.
Toutefois, la compétence technique de la Commission s'étendra comme par le passé sur le chenal navigable entre Galatz et Braïla. Le service du pilotage reste compris dans cette compétence."

[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 compétence de ladite Commission s'étend sur le Danube maritime, c'est-à-dire depuis la mer Noire jusqu'au point où [p31] commence la compétence de la Commission internationale, à l'exclusion des ports fluviaux autres que le port de Soulina.
Toutefois, entre Galatz et Braïla, cette compétence doit être entendue comme n'apportant, ni en fait ni en droit, la moindre modification à 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 Conférence internationale du Danube de l'article 6 du projet de Statut définitif qui détermine la compétence de la Commission européenne, les [p33] délégués de France, de Grande-Bretagne, d'Italie et de Roumanie ont convenu, sur la demande de la Conférence, de rédiger le protocole suivant en vue de fixer l'interprétation qu'ils ont entendu donner à la disposition susvisée:

Les délégués soussignés déclarent qu'en stipulant que "la compétence de la Commission européenne s'étend sur le Danube maritime, c'est-à-dire depuis les embouchures du fleuve jusqu'au point où commence la compétence de la Commission internationale", l'article 6 du Statut n'apporte et ne doit apporter à l'avenir aucune modification aux conditions ni aux limites dans lesquelles ce régime administratif a été appliqué jusqu'aujourd'hui. Il est donc clairement entendu que les pouvoirs de la Commission ne sont, en vertu de cette disposition, ni augmentés ni diminués, et qu'ils doivent continuer à s'exercer sur le fleuve de la même manière que par le passé, en conformité avec les traités, actes internationaux et règlements de navigation auxquels tous les États représentés ont adhéré. Il est également entendu qu'entre Galatz et Braïla la Commission européenne continuera, comme par le passé, à entretenir le chenal navigable et son service de pilotage.
La présente déclaration sera communiquée à la Conférence internationale à toutes fins utiles et versée aux archives officielles de la Commission européenne 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 agréé 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 compétence juridique, as an essential incident of the internationalization of the Danube and of the exercise of the technical powers or compétence 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.

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[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 Comité, il y a une chose qui domine toutes ces considérations: c'est que, en fait, la pratique d'avant-guerre, dans le secteur Galatz-Braïla, a été l'exercice des pouvoirs de juridiction de la Commission européenne."

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[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."
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[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'à 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 création d'un tribunal spécial compétent pour régler la question a pu être considérée comme une mesure dépassant la sphère des pouvoirs de la Commission européenne du Danube, il n'en est pas moins vrai que la Commission européenne tient de ses actes fondamentaux le droit de fixer des règles pour la situation spéciale dont il s'agit, et que, notamment, elle a tout pouvoir pour introduire dans son Règlement de navigation et de police des dispositions relatives à cette question. C'est ce qui résulte de l'alinéa 2 de l'article 7 de l'Acte public du 2 novembre 1865, ainsi conçu: "Il est entendu que ce Règlement 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."

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[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."
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[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".

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[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'à 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 conséquence, lesdits bâtiments pourront toucher à 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.

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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]

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[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) Å. Hammarskjöld
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 compétence de la Commission européenne s'étend, dans les mêmes conditions que par le passé et sans aucune modification à ses limites actuelles, sur le Danube maritime, c'est-à-dire depuis les embouchures du fleuve jusqu'au point où commence la compétence de la Commission internationale. [FN1]

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[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."
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[216] Nature of the jurisdiction: Article 5.

"La Commission européenne exerce les pouvoirs qu'elle avait avant la guerre. Il n'est rien changé aux droits, attributions et immunités qu'elle tient des traités, conventions, actes et arrangements internationaux relatifs au Danube et à ses embouchures [FN2].

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[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."
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[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 régimes.

[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 décembre 1882.
"Par sa lettre confidentielle du 13 de ce mois, Votre Excellence a bien voulu appeler mon attention sur la situation particulière de la Roumanie, qui, en vertu de l'article 53 du
Traité de Berlin, a été admise à se faire représenter à la Commission européenne du Danube et qui, cependant, n'étant point au nombre des Puissances signataires de ce Traité, n'est
pas fondée "en droit" à réclamer un siège à la conférence dont le Gouvernement de la Reine propose en ce moment la réunion.
Eu égard à la nature même des questions qui seront examinées, le Gouvernement de Sa Majesté britannique estime que les représentants des Puissances, une fois réunis, pourraient
inviter le Gouvernement roumain à envoyer à la conférence un délégué qui prendrait part aux délibérations, au même titre que ceux des Puissances signataires du Traité de Berlin.
Le Gouvernement de la République acquiesce volontiers à cette proposition, qui sera, le cas échéant, appuyée par son représentant à la conférence ; je vous serais obligé de vouloir
bien en aviser votre Gouvernement.
Agréez, etc.
(Signed) E. Duclerc."

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[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."
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[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 à la conférence sur le même pied que les autres Puissances. Il serait d'autant plus gracieux de lui faire cet accueil qu'elle se trouve déjà représentée dans la Commission européenne et &'elle aura également son représentant dans la Commission mixte, dont la formation est proposée." [FN1]

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[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."
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[310] Count Munster did not share the view expressed by Lord Granville. For, if, “"tout en maintenant le principe de l'unanimité dans la conférence, on donnait une voix à la Roumanie, on lui créerait une position qui ne serait nullement désirable, celle de pouvoir à sa volonté imposer son veto. La Roumanie ne pourrait donc être admise qu'en qualité d'invitée et non comme maîtresse de maison." [FN2] [p99]

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[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".
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[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 intéressé dans la navigation du Danube, n'a pas été appelée par le Traité de [p100] Paris à participer aux travaux de la Commission européenne, c'est qu'en 1856 elle formait deux Principautés distinctes sous la suzeraineté de la Porte, qui était tenue de défendre les intérêts des deux pays.
Il n'en était plus de même en 1878. A l'époque du Traité de Berlin, la Roumanie était un État indépendant, ses intérêts et ses droits ne pouvaient plus comme par le passé être représentés par le délégué ottoman, et le Congrès de Berlin ne pouvait faire moins que de l'appeler à se faire représenter dans la Commission européenne du Danube.
Par l'article LIII du Traité de Berlin, le délégué de la Roumanie est admis à la Commission européenne au même titre que les délégués des Puissances signataires des Traités de Paris, de Londres et de Berlin. C'était un acte de justice et d'équité que de reconnaître la position exceptionnelle occupée par la Roumanie sur la partie du fleuve soumise à la juridiction [p101] de la Commission européenne. 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 Conférence sur le pied de la plus parfaite égalité avec les autres Puissances est indiquée par la nature même des choses. Ayant été admise au sein de la Commission européenne, on ne peut l'exclure d'une conférence convoquée spécialement pour l'existence et l'organisation de cette même institution.
Il est à considérer que le droit de participation de la Roumanie à la Conférence est fondé aussi bien sur les prescriptions anciennes et permanentes du droit international que sur la situation récemment consacrée par l'Europe.
En effet, d'une part, le Protocole du Congrès d'Aix-la-Chapelle du 15 novembre 1818 statue que <<dans le cas où des réunions auraient pour objet des affaires spécialement liées aux intérêts des autres États de l'Europe, elles n'auraient lieu que sous la réserve expresse de leur droit d'y participer>>.
D'autre part, la Roumanie a signé avec les autres Puissances l'Acte additionnel à l'Acte public du 2 novembre 1865, relatif à la navigation des embouchures du Danube, en date du 28 mai 1881, ainsi que le Règlement de navigation et de police applicable à la partie du Danube comprise entre Galatz et les embouchures, arrêté par la Commission européenne le 19 mai 1881.
La signature du plénipotentiaire roumain impliquait dès lors que la Roumanie serait également appelée à se prononcer directement et de pair avec les autres Puissances sur toutes les questions relatives à la Commission européenne du Danube.
Du reste, le cabinet de Vienne, par sa note du II avril 1882, s'est montré favorable à la participation de la Roumanie, et le Gouvernement du Roi pense que les vues des autres cabinets de l'Europe s'accorderont à reconnaître à la Roumanie le complément logique de la situation qui lui a été faite par leur propre décision consignée à l'article LI11 du Traité de Berlin.
(Signé) Jon Ghica,
Envoyé extraordinaire et ministre plénipotentiaire de Sa Majesté le Roi de Roumanie.
A Son Excellence le Comte Granville, Président de la Conférence."

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[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."
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[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 Conférence a cru devoir se considérer en quelque sorte comme la prolongation et la suite du Traité de Berlin, auquel la Roumànie n'a pas participé comme signataire.” [FN1]

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[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".
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[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 à Votre Excellence, en date du z février, une note pour demander que la Roumanie fût admise à prendre part à la Conférence
relative à la question du Danube, sur le même pied que les autres États représentés dans la Commission européenne du Danube.
Votre Excellence ayant bien voulu me communiquer la décision qui a été prise à ce sujet par les représentants des Puissances signataires du Traité de Berlin, j'ai l'honneur de [p103] porter à 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 décisions de la Conférence.
Par conséquent, je me trouve, Monsieur le Comte, dans la nécessité de décliner l'honneur d'assister aux séances de la Conférence, et, au nom du Gouvernement du Roi, je fais les
réserves les plus solennelles et je proteste contre les décisions qui seraient prises sans la participation de la Roumanie, en les déclarant non obligatoires pour elle.
Veuillez, etc.
(Signé) Jon Ghica.

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[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."
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[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 impartialité et équité les dispositions du Traité de Londres du IO mars 1883, on arrive nécessairement aux conclusions suivantes :

1) La Roumanie a des droits incontestables à la participation effective aux délibérations d'une conférence ayant pour objet les affaires du bas Danube en vertu de sa triple position de riveraine, de membre de la Commission européenne du Danube et de co-signataire de l'Acte additionnel du 28 mai 1881. [p104]
2) N'ayant pu prendre part aux délibérations de la Conférence de Londres, les décisions prises par cette Conférence ne peuvent avoir force obligatoire pour la Roumanie.
3) L'Acte additionnel du 27 mai 1881, étant une convention régulièrement et valablement conclue et ratifiée, ne saurait être modifié unilatéralement.
4) Le Règlement 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 liberté de navigation et de commerce."

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[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."
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[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 placé sous l'autorité de l'inspecteur de la navigation et du capitaine du port de Soulina.[FN1]

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[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."
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Article 3.-L'inspecteur est spécialement préposé à la police du bas Danube elz aval de Galatz, à l'exclusion du port de Soulina. [FN2]

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[FN2] [Translation.] "The Inspector is specially charged with the police of the Lower Danube below Galatz, exclusive of the port of Sulina."
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Article 165.- …
L'amende est de vingt francs au moins et de 550 francs au plus, pour tout capitaine d'un bâtiment de mer qui, en cours de voyage, entre Galatz et Sozclina, ne peut présenter son rôle d'éqwpage, ou refuse de le produire aitu agents de l'Inspection de la navigation. [FN3]

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[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."
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Article 190. - L'inspecteur de la navigation et le capitaine du port de Soulina connaissent des contraventions commises, dans l'étendue de leur ressort, contre les dispositions du présent Règlement et prononceht, en première instance, l'application des amendes encourues à raison de ces contraventions. [FN4]

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[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."
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[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 Néré 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 européenne du Danube.
No. 432.
Galatz, le 20 mars 1892.
Monsieur et cher Collègue,
Le Comité exécutif a l'honneur de vous informer que, dans sa séance du 19 mars courant, à la suite d'observations à lui soumises verbalement par M. le délégué de Roumanie concernant
deux dépositions .recueillies par l'inspecteur de la navigation sur les circonstances d'un échouement qui a eu lieu en amont de Galatz, la résolution suivante a été prise à l'unanimité
des six délégués présents:
"La Commission européenne, désireuse de continuer les bons rapports qui existent si heureusement entre elle et le Gouvernement royal de Roumanie, s'engage à éviter tout conflit, en donnant les ordres nécessaires à l'inspecteur de la navigation du bas Danube et à ses autres
agents, de ne pas dresser d'actes de juridiction dans les localités situées en amont de Galatz.
Galatz, le 19 mars 1892."
(Signé) Raffauf, Percy Sanderson, Giulio Tesi, A. Romanenko; I. D. Balàceano, M. Azarian."[FN1]

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[FN1] [Translation.]
"European Commission of the Danube.
No. 432.
Galatz, March 20th, 1892.
Monsieur et cher Collègue,
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."
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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 Règlement de navigation et de police, édicté sous la date du 10 novembre 1911 par la Commission européenne du Danube instituée en vertu du Traité de Paris du 30 mars 1856, du Traité de Londres du 13 mars 1871 et du Traité de Berlin du 13 juillet 1878. »

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[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."
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[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 européenne exerce les pouvoirs qu'elle avait avant la guerre. Il n'est rien changé aux droits, attributions et immunités qu'elle tient des traités, conventions, actes et arrangements internationaux relatifs au Danube et à ses embouchures."

Article 6. - "La compétence de la Commission européenne s'étend, dans les mêmes conditions que par le passé et sans aucune modification à ses limites actuelles, sur le Danube maritime, c'est-à-dire depuis les embouchures du fleuve jusqu’au point où commence la compétence de la Commission internationale."[FN1]

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[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."
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[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'étend, comme il est dit à l'article 4, sur toute la partie du fleuve accessible aux navires de haute mer, c'est-à-dire de Braïla à la mer Noire” [FN1]

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[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."
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[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'étend, comme il est dit à l'article 3, sur le Danube maritime, c'est-à-dire de la mer Noire jusqu'à Galatz, à l'exclusion des ports fluviaux autres que le port de Soulina.
Toutefois, la compétence technique de la Commission s'étendra comme par le passé sur le chenal navigable entre Galatz et Braïla. Le service du pilotage reste compris dans cette compétence."[FN1]

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[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."
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[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 interprétatif de l'article VI du Statut du Danube, arrêté par la Commission européenne du Danube.
A la suite de l'adoption par la Conférence internationale du Danube de l'article VI du projet de statut définitif qui détermine la compétence de la Commission européenne, les délégués
de France, de Grande-Bretagne, d'Italie et de Roumanie ont [p120] tonvenu, sur la demande de la Conférence, de rédiger le protocole suivant en vue de fixer l'interprétation qu'ils ont entendu
donner à la disposition susvisée:
J - Les délégués soussignés déclarent qu'en stipulant que «la compétence de la Commission européenne s'étend sur le Danube maritime, c'est-à-dire depuis les embouchures du fleuve jusqu'au point où commence la compétence de la Commission internationale», l'article VI du Statut n'apporte et ne doit apporter à l'avenir aucune modification aux conditions ni aux limites
dans lesquelles ce régime administratif a été appliqué jusqu'aujourd'hui. Il est donc clairement entendu que les pouvoirs de la Commission ne sont, en vertu de cette disposition, ni augmentés ni diminués et qu'ils doivent continuer à s'exercer sur le fleuve, de la même manière que par le passé, en conformité avec les traités, actes internationaux et règlements de navigation auxquels tous les États représentés ont adhéré. Il est également entendu qu'entre Galatz et Braïla la Commission européenne continuera, comme par le passé, à entretenir le chenal navigable et son service de pilotage.
La présente déclaration sera communiquée à la Conférence internationale à toutes fins utiles et versée aux archives officielles de la Commission européenne du Danube.
Fait à Paris, le 6 mai 1921.
Le délégué de France: (Signé) A. Legrand.
Le délégué de Grande-Bretagne: (Signé) J. G. Baldwin.
Le délégué d'Italie: (Signé) V. Siciliani.
Le délégué de Roumanie: (Signé) C. Contzesco."

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[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]
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[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 Président rappelle à la Conférence que, lorsqu'elle s'est occupée d'établir la compétence de la Commission européenne, il avait été entendu, sur la proposition du plénipotentiaire de Roumanie, que la Commission européenne fixerait elle-même l'interprétation de l'article VI du Statut dans un protocole spécial qui serait communiqué à la Conférence.
Ce protocole, signé des quatre délégués à la Commission européenne, est parvenu au secrétariat général de la Confé[p121]rence : le Président en donne lecture et déclare qu'il sera versé aux archives de la Conférence et publié en annexe au protocole de la présente séancel."[FN1]

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[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."
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[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 régime 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 régimes, 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 apparaît clairement que l'article 346 du Traité de Versailles est toujours en vigueur et qu'il reste à l'heure actuelle la base juridique des compétences de la Commission européenne.” [FN1]

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[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."
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[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 régimes 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 spécialement préposé à la police du bas Danube en aval de Galatz, à l'exclusion du port de Soulina.” [FN1]

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[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”
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[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 (71½milestone). 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 (71½ 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 71½ 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 (résumé 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 Chargé 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 Traités, 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 Traités, 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 Traités, 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; Congrès de Berlin 1878, pp. 12 et seq.)

Treaty of Berlin (July 13th, 1878). (Nouveau Recueil de Traités, 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 régime of navigable waterways of international concern (Barcelona, April 20th, 1921). (League of Nations, Doc. C. 479. M. 327. 1921. VIII.)

Statute relating to the régime 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 Chargé 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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