Chapter IV.—Clauses relating to the Rhine and the Moselle (Art. 354 to 362)
As from the coming into force of the present Treaty, the Convention of Mannheim of October 17, 1868, together with the Final Protocol thereof, shall continue to govern navigation on the Rhine, subject to the conditions hereinafter laid down.
In the event of any provisions of the said Convention being in conflict with those laid down by the General Convention referred [Page 670]to in Article 338 (which shall apply to the Rhine) the provisions of the General Convention shall prevail.
Within a maximum period of six months from the coming into force of the present Treaty, the Central Commission referred to in Article 355 shall meet to draw up a project of revision of the Convention of Mannheim. This project shall be drawn up in harmony with the provisions of the General Convention referred to above, should this have been concluded by that time, and shall be submitted to the Powers represented on the Central Commission. Germany hereby agrees to adhere to the project so drawn up.
Further, the modifications set out in the following Articles shall immediately be made in the Convention of Mannheim.
The Allied and Associated Powers reserve to themselves the right to arrive at an understanding in this connection with Holland, and Germany hereby agrees to accede if required to any such understanding.
Note to XII, 354
The Mannheim convention concerning the navigation of the Rhine was concluded between Baden, Bavaria, France, Hesse-Darmstadt, Netherlands, and Prussia (59 British and Foreign State Papers, p. 470). After 1871 the interests of the four German states were looked after by the German Empire. The Rhine, since the first steps toward its internationalization by the final report of the commission of the Holy Roman Empire (Reichsdeputationshauptschluss), February 25, 1803, was the subject of numerous arrangements which were consolidated in the Mannheim convention of 1868. From then on to the definition of the regime by the provisions of this treaty (arts. 354–62) the administration of the Central Commission developed a great mass of supplementary agreements and regulations. These are compiled in Rijndocumenten (Documents concernant la navigation du Rhin); Recueil de conventions et de règlements internationaux, de dispositions légates nationales, 1803–1918 (La Haye, Martinus Nijhoff, 1918).
Adhesion of the Netherlands to the modifications introduced by this treaty in the Mannheim convention of 1868 was accomplished by a protocol signed at Paris January 21, 1921 (20 League of Nations Treaty Series, p. 111) by representatives of Belgium, France, Great Britain, Italy, and the Netherlands. The protocol stipulated that the provisions of the additional act of September 18, 1895 (87 British and Foreign State Papers, p. 788) and the convention of June 4, 1898 (Martens, Nouveau recueil général de traités, 2e série, [Page 671]xxix, 113) should be applied to the navigation of the Rhine. The Netherlands was given a third representative on the Central Commission. With certain technical understandings, the Netherlands would adhere to articles 65, 354–56, and 358–62 of the treaty of peace after the Conference of Ambassadors had approved the protocol. A further protocol of March 29, 1923 (ibid., p. 117) provided that resolutions of the Central Commission should be adopted by majority votes and “no state shall be obliged to take steps for the execution of any resolution which it may have refused to approve”. With this concession, the adhesion of the Netherlands became effective September 8, 1923.
The jurisdiction of the Central Commission for the Navigation of the Rhine extended to the Waal and the Lek.
Police vessels on the river system flew special flags. The French flag was composed of triangular blue, white, and red fields. The German flag was black, white, and red until May 1, 1924, when it became black, red, and golden-yellow (25 League of Nations Treaty Series, p. 261).
The Conference of Ambassadors on June 12, 1925 found it necessary to request the German Government to instruct the representatives of the German states on the Central Commission to observe the provisions of the Barcelona convention of April 20, 1921, pending the revision of the Mannheim convention. On July 2, 1926 Germany addressed to the Conference of Ambassadors a letter in which it argued that article 10 of the Barcelona convention would not obligate German riparian states to subject works for the upkeep of navigability undertaken by them to the decisions of the Rhine Commission. In the reply of March 16, 1927 (file 763.72119/12319, annex I) the Conference of Ambassadors characterized the German attitude “as scarcely favorable in a liberal sense to the revision of the regime of the Rhine Convention” and stated that “the particularism of the German delegates in opposition to the modern public international law is in any case contrary to Articles 354 and 356 of the treaty of peace which Germany is obliged to observe.”
A revision of the Mannheim convention of 1868 was eventually prepared, but not itself put into force. A modus vivendi signed at Strasbourg May 4, 1936 provided for its partial application from January 1, 1937 until the convention itself entered into force. This modus vivendi was signed on behalf of Belgium, France, Germany, Italy, Switzerland, and the United Kingdom, but the Netherlands did not sign it. Germany’s repudiation of the international river [Page 672]regimes by the declaration of November 14, 1936 (see p. 651) was regarded by it as a denunciation of the modus vivendi, which was consequently in force without any question for the six signatories only from August 1 to November 14, 1936. The exceptions specified in the modus vivendi to the application of the convention covered customs questions (arts. 11–17, 19–21), free ports and other port questions (arts. 23–27), provisions relating to expenses, voting, the entry of the convention into force and its abrogating effect (arts. 85, 86, 89, 91–93). An exception in the modus vivendi, exemplifying Germany’s hostility to multilateral methods, would have had the effect of eliminating a stipulation (art. 94, par. 2) submitting the convention to the Secretary-General of the League of Nations for registration and publication.
The undated and unsigned revised convention annexed to the modus vivendi (Martens, Nouveau recueil général de traités, 3e série, xxxvi, 769) defined the Rhine to which it applied as extending from the headwaters of the port of Basel to Krimpen (131.18 kilometers) on the one part and Gorinchem (94.5 kilometers) on the other part, the Lek and the Waal being regarded as forming part of the Rhine. Lateral canals and other navigable ways intended to duplicate, improve, or replace any sections of the waterways subject to the convention were included, but the waterways between Krimpen and Gorinchem on the one side and the open sea and Belgium on the other side remained under the Mannheim convention. The revision provided for the seat of the commission remaining at Strasbourg for 10 years, after which it might be changed to the territory of another state. The functions assigned to the commission were chiefly administrative and related largely to policing navigation, supervising the observance of conditions of navigability, the validity of papers pertaining to shipping and crews, ensuring the conformity of bridge constructions with the terms of the convention, providing means for the adjustment of disputes, and advising the governments with respect to the prosperity of navigation on the Rhine. The powers of the commission, by and large, were limited by national laws of the riverain states and Belgium, all of which were entitled to conclude agreements between themselves on the understanding that they were not inconsistent with the terms of the convention.
An agreement between Belgium, France, and the Netherlands regarding certain questions connected with the regime applicable to navigation on the Rhine concluded at Brussels was signed and [Page 673]entered into force on April 3, 1939 (195 League of Nations Treaty Series, p. 471). The agreement applied many provisions of the 1936 text to the relations of the parties which were affected by the defection of Germany. One provision was that chapters III, IV, VII, and VIII of the 1936 project of convention should apply to the ports of Rotterdam (including Vlaardingen, Schiedam, and Hook of Holland), Amsterdam, Dordrecht, Antwerp, and Ghent, and to Rhine traffic destined for or originating in those ports either from the high sea or Belgium, which traffic is to be treated as that of the Rhine itself.
The Rhine “stream territory”, according to the German shipping police ordinance of January 18, 1939 (Reichsgesetzblatt, 1939, ii, 41), comprises: (a) the Rhine within German boundaries from the German-Swiss frontiers below Basel down to the Spyck ferry; (b) the Neckar from the mouth upstream to Lauffen; (c) the Main from the mouth to the mouth of the Regnitz and the Regnitz to Bamberg; (d) the Lahm upstream to Steeden (above Limburg); (e) the Moselle from the mouth upstream to the Reich frontier; (f) the Spoy Canal with Griethausen Altrhein.
The Central Commission provided for in the Convention of Mannheim shall consist of nineteen members, viz.:
- 2 representatives of the Netherlands;
- 2 representatives of Switzerland;
- 4 representatives of German riparian States;
- 4 representatives of France, which in addition shall appoint the President of the Commission;
- 2 representatives of Great Britain;
- 2 representatives of Italy;
- 2 representatives of Belgium.
The headquarters of the Central Commission shall be at Strasburg.
Whatever be the number of members present, each Delegation shall have the right to record a number of votes equal to the number of representatives allotted to it.
If certain of these representatives cannot be appointed at the time of the coming into force of the present Treaty, the decisions of the Commission shall nevertheless be valid.[Page 674]
Vessels of all nations, and their cargoes, shall have the same rights and privileges as those which are granted to vessels belonging to the Rhine navigation, and to their cargoes.
None of the provisions contained in Articles 15 to 20 and 26 of the above-mentioned Convention of Mannheim, in Article 4 of the Final Protocol thereof, or in later Conventions, shall impede the free navigation of vessels and crews of all nations on the Rhine and on waterways to which such Conventions apply, subject to compliance with the regulations concerning pilotage and other police measures drawn up by the Central Commission.
The provisions of Article 22 of the Convention of Mannheim and of Article 5 of the Final Protocol thereof shall be applied only to vessels registered on the Rhine. The Central Commission shall decide on the steps to be taken to ensure that other vessels satisfy the conditions of the general regulations applying to navigation on the Rhine.
Within a maximum period of three months from the date on which notification shall be given Germany shall cede to France tugs and vessels, from among those remaining registered in German Rhine ports after the deduction of those surrendered by way of restitution or reparation, or shares in German Rhine navigation companies.
When vessels and tugs are ceded, such vessels and tugs, together with their fittings and gear, shall be in good state of repair, shall be in condition to carry on commercial traffic on the Rhine, and shall be selected from among those most recently built.
The same procedure shall be followed in the matter of the cession by Germany to France of:
- the installations, berthing and anchorage accommodation, platforms, docks, warehouses, plant, etc., which German subjects or German companies owned on August 1, 1914, in the port of Rotterdam, and
- the shares or interests which Germany or German nationals possessed in such installations at the same date.
The amount and specifications of such cessions shall be determined within one year of the coming into force of the present Treaty by an arbitrator or arbitrators appointed by the United States of [Page 675]America, due regard being had to the legitimate needs of the parties concerned.
The cessions provided for in the present Article shall entail a credit of which the total amount, settled in a lump sum by the arbitrator or arbitrators mentioned above, shall not in any case exceed the value of the capital expended in the initial establishment of the ceded material and installations, and shall be set off against the total sums due from Germany; in consequence, the indemnification of the proprietors shall be a matter for Germany to deal with.
Note to XII, 357
Walker D. Hines of New York, formerly director-general of the United States Railroad Administration, was appointed Arbitrator for River Craft. On January 8, 1921 he decided that under article 357 Germany must deliver to France 254,150 tons in barges and 23,760 registered horsepower in tugs, together with equipment from the ports of Rotterdam, Ruhrort, Cologne, Mannheim, and Ludwigshafen. Germany was credited with a lump sum of 15,450,000 gold marks and 98 percent of the deliveries were completed by May 15, 1921.
For the appointment of the arbitrator, see article 339.
Subject to the obligation to comply with the provisions of the Convention of Mannheim or of the Convention which may be substituted therefor, and to the stipulations of the present Treaty, France shall have on the whole course of the Rhine included between the two extreme points of the French frontiers:
- the right to take water from the Rhine to feed navigation and irrigation canals (constructed or to be constructed) or for any other purpose, and to execute on the German bank all works necessary for the exercise of this right;
- the exclusive right to the power derived from works of regulation on the river, subject to the payment to Germany of the value of half the power actually produced, this payment, which will take into account the cost of the works necessary for producing the power, being made either in money or in power and in default of agreement being determined by arbitration. For this purpose France alone shall have the right to carry out in this part of the river all works of regulation (weirs or other works) which [Page 676]she may consider necessary for the production of power. Similarly, the right of taking water from the Rhine is accorded to Belgium to feed the Rhine-Meuse navigable waterway provided for below.
Text of May 7:
… Similarly, the right of taking water from the Rhine is accorded to Belgium to feed the Rhine-Meuse canal provided for below. …
The exercise of the rights mentioned under (a) and (b) of the present Article shall not interfere with navigability nor reduce the facilities for navigation, either in the bed of the Rhine or in the derivations which may be substituted therefor, nor shall it involve any increase in the tolls formerly levied under the Convention in force. All proposed schemes shall be laid before the Central Commission in order that that Commission may assure itself that these conditions are complied with.
To ensure the proper and faithful execution of the provisions contained in (a) and (b) above, Germany:
(1) binds herself not to undertake or to allow the construction of any lateral canal or any derivation on the right bank of the river opposite the French frontiers;
(2) recognises the possession by France of the right of support on and the right of way over all lands situated on the right bank which may be required in order to survey, to build, and to operate weirs which France, with the consent of the Central Commission, may subsequently decide to establish. In accordance with such consent, France shall be entitled to decide upon and fix the limits of the necessary sites, and she shall be permitted to occupy such lands after a period of two months after simple notification, subject to the payment by her to Germany of indemnities of which the total amount shall be fixed by the Central Commission. Germany shall make it her business to indemnify the proprietors whose property will be burdened with such servitudes or permanently occupied by the works.
Should Switzerland so demand, and if the Central Commission approves, the same rights shall be accorded to Switzerland for the part of the river forming her frontier with other riparian States;
(3) shall hand over to the French Government, during the month following the coming into force of the present Treaty, all projects, designs, drafts of concessions and of specifications concerning the regulation of the Rhine for any purpose whatever [Page 677]which have been drawn up or received by the Governments of Alsace-Lorraine or of the Grand Duchy of Baden.
Subject to the preceding provisions, no works shall be carried out in the bed or on either bank of the Rhine where it forms the boundary of France and Germany without the previous approval of the Central Commission or of its agents.
France reserves the option of substituting herself as regards the rights and obligations resulting from agreements arrived at between the Government of Alsace-Lorraine and the Grand Duchy of Baden concerning the works to be carried out on the Rhine; she may also denounce such agreements within a term of five years dating from the coming into force of the present Treaty.
France shall also have the option of causing works to be carried out which may be recognised as necessary by the Central Commission for the upkeep or improvement of the navigability of the Rhine above Mannheim.
Should Belgium within a period of 25 years from the coming into force of the present Treaty decide to create a deep-draught Rhine-Meuse navigable waterway, in the region of Ruhrort, Germany shall be bound to construct, in accordance with plans to be communicated to her by the Belgian Government, after agreement with the Central Commission, the portion of this navigable waterway situated within her territory.
The Belgian Government shall, for this purpose, have the right to carry out on the ground all necessary surveys.
Should Germany fail to carry out all or part of these works, the Central Commission shall be entitled to carry them out instead; and, for this purpose, the Commission may decide upon and fix the limits of the necessary sites and occupy the ground after a period of two months after simple notification, subject to the payment of indemnities to be fixed by it and paid by Germany.
This navigable waterway shall be placed under the same administrative regime as the Rhine itself, and the division of the cost of initial construction, including the above indemnities, among the States crossed thereby shall be made by the Central Commission.[Page 678]
Note to XII, 361
In addition to any arrangements with Germany, the realization of a Rhine-Meuse canal by Belgium depended upon its reaching an agreement with the Netherlands for the waterway to traverse Netherlands territory. The project was thus a part of the whole question of the waterways extended from the Meuse, Rhine, and Scheldt that play an important part in the communicative systems of the two countries. In connection with negotiations for the abrogation of the treaty of April 19, 1839 (see art, 31) Belgium and the Netherlands on April 3, 1925 signed a treaty which in article VI gave the consent of the Netherlands to the construction of a Rhine-Meuse-Scheldt canal across its territory. That treaty failed of approval by the First Chamber of the Netherlands Parliament on March 24, 1927 (Belgium, Ministère des affaires étrangères, Documents diplomatiques relatif à la revision des traités de 1839).
Germany hereby agrees to offer no objection to any proposals of the Central Rhine Commission for extending its jurisdiction:
- to the Moselle below the Franco-Luxemburg frontier down to the Rhine, subject to the consent of Luxemburg;
- to the Rhine above Basle up to the Lake of Constance, subject to the consent of Switzerland;
- to the lateral canals and channels which may be established either to duplicate or to improve naturally navigable sections of the Rhine or the Moselle, or to connect two naturally navigable sections of these rivers, and also any other parts of the Rhine river system which may be covered by the General Convention provided for in Article 338 above.