840.811/8–1748: Telegram
The Ambassador in Yugoslavia (Cannon) to the Secretary of State
Deldu77. From Dustmann for Michael McDermott and Dunning. Statement by Radius, deputy chairman, supporting US amendment to Article 42,1 August 17, 1948. Remarks I make on US amendment to [Page 711] Article 42 also apply to French proposal Article 42 and can be considered covering both amendments.
Provision in Article 42 Soviet draft that convention come into force upon deposit only six ratifications not only inequitable but contrary to principle freedom navigation.
Provision for entry into force convention upon deposit six ratifications ignores rights non-ratifying states, both participants here and those not represented this conference. US can not accept concept that convention can validly deprive any state its rights without consent.
Consider situation with respect nine riparians alone. Article 42 Soviet draft provides convention come into force soon as six states ratify. Even if legality this procedure not questioned, let us consider practical problems this provision might present.
There no question but that convention regarding free navigation waters wholly within territories different states must be ratified by each those states in order become effective respective territories. Convention certainly cannot be applied to state’s territorial waters without its approval. Effort to apply convention to waters state without concurrence would truly be “infringement sovereignty” by any definition. Yet, under terms Soviet draft convention can be brought into force without ratification by one of downstream states. How could convention be any benefit if either freedom access to sea denied, or if convention not accepted by state through which traffic must flow? Obviously there would be endless stream complications disputes, which would make convention useless.
I assume we shall be told such contingency cannot occur since seven voting riparian states present reached full agreement on Soviet draft and will ratify convention. But there seems be some doubt whether all [Page 712] seven riparian states will ratify. Why weren’t seven ratifications required for entry force convention?
If convention were to come into force upon deposit only six ratifications as provided Soviet draft it could only be applied to that portion Danube within national borders ratifying states. This in itself would prejudice objective CFM resolution to open entire Danube to free unimpeded navigation.
Provision for entry into force convention upon six ratifications not only fails give appropriate recognition to basic riparian rights states on Danube but also ignores whatever rights interests non-riparian states have in Danube.
Danube has served as avenue international navigation not only for riparian states but also for non-riparian states in trade with states on banks. Furthermore since 1815 various non-riparian states have held rights on Danube by treaty and since 1856, one or more international commissions on which non-riparian states represented have been functioning under treaties.
Rights non-riparians in connection with European rivers has been recognized other ways. For example, judgment rendered by Permanent Court International Justice September 10, 1929, in which court held jurisdiction international commission charged with administration of Oder River extended to section of the Warthe (Warta) and Netze (Notec) Rivers situated Polish territory.
Court stated solution “has been sought not in idea of right passage in favor upstream states but in that of community of interest of riparian states”, that community of interest in navigable river “becomes basis of common legal right essential features which are perfect equality all riparian states in use whole course river and exclusion any preferential privilege one riparian state in relation to other”, that introduction of representatives of non-riparian powers on river commissions was “not exclusively or mainly due to desire to afford greater measure protection to interests landlocked states”, but was “rather to be explained by interests non-riparian states may have in navigation on waterways in question”, and it be difficult understand why that interest should not be recognized “where question of reaching ports of last upstream state involved”, as interest all states is in liberty navigation both directions.
French and US proposals for amendment Article 42 would give both riparian non-riparian states represented here effective voice in determining whether new regime shall be established for Danube. That procedure is truly in keeping with nature [and] history of Danube. [Dustmann.]
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Article XLII in the Soviet draft convention read:
↩“The present Convention, of which the Russian and French texts are authentic, shall be ratified and shall come into force upon the deposit of six ratifications.
The instruments of ratification shall be deposited with the Government of the People’s Federal Republic of Yugoslavia, in the archives of which shall be deposited the original copy of the present Convention.
The Government of the People’s Federal Republic of Yugoslavia shall furnish certified copies of the original Convention to all the parties of the Convention and shall inform them of the deposition of instruments of ratification as they are deposited.”
The amendment proposed by the United States delegation was to delete the entire article of the Soviet draft and to insert the following provisions for the article:
“The present convention shall be ratified and the instruments of ratification thereof and instruments of adherence thereto shall be deposited with the Government of the People’s Federated Republic of Yugoslavia, which shall notify all states referred to in the preamble and all adhering states of the date of each such deposit and of the date of entry into force of this convention.
The present convention shall come into force upon the deposit of instruments of ratification by Bulgaria, Czechoslovakia, France, Hungary, Rumania, the Ukrainian Soviet Socialist Republics, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, and Yugoslavia and the deposit of an instrument of adherence thereto by Austria.
After the entry into force of this convention, any state which is a member of the United Nations may adhere thereto by depositing an instrument of adherence. Each such adherence shall become effective on the date of its deposit.
The signed original of the present convention shall be deposited with the Government of the People’s Federated Republic of Yugoslavia, which shall promptly transmit certified copies thereof to each of the signatory states and to Austria.”