84

DISSENTING OPINION BY M. NEGULESCO.
[ Translation. ]

I, the undersigned, am unable to concur with the opinion
of the majority, on the. following. grounds:

By a Resolution of December gth, 1926, the Council of the
League of Nations requests the Court to give an advisory
opinion wpon 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 Septem-
ber 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.

The questions submitted to the Court for advisory opinion
are as follows:

“(r) Under the law at present in force, has the European
Commission of the Danube the same powers. on the mari-
time 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 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, accord-
ing 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 compe-
tence 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 author-
ities to be fixed ?

(3) Should the reply given in (1) be to the effect that
the European Commission either has no powers: in the

II
DISSENTING OPINION BY M. NEGULESCO 85

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
régimes be fixed ?”

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 ?

(0) If it has not the same powers, does it possess powers
of any kind? If so, what powers? How far upstream do they
extend ? |

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.

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, 1927.

Articles 6 and 9 of the Statute, when taken together, lead
to the inference that the jurisdiction of the European Commis-
sion 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 andits mouths.

*
* *

The fundamental principles relating to freedom of navigation
upon rivers which form the boundaries between or cross sev-
eral 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.

In Article 109 it is stated that navigation “shall be entirely
free, and shall not, in respect to commerce, be prohibited
DISSENTING OPINION BY M. NEGULESCO 86

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’”’.

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 deter-
mination. 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.”

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 contract-
ing Powers stipulate among themselves that those prin-
ciples shall in future be equally applied to the Danube
and its mouths. They declare that this arrangement hence-
forth forms a part of the Public Law of Europe, and
take it under their guarantee.”

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 Com-
mission for the remaining part of the river (Article 17).

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’.

The River Commission charged with securing the navigation
. of the river consisted of the riparian States, namely: Austria,
DISSENTING OPINION BY M. NEGULESCO 87

Bavaria, the Sublime-Porte and Wurtemberg, to whom were
to be added Commissioners from the three Danubian Prin-
cipalities, whose nomination should have been approved by the
Porte. |

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 author-
ities. Article 8 of the Public Act of Galatz of November 2nd,
1865, leavés no doubt on this point.

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.

The Treaty of Berlin of July r3th, 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).

It. was further specified in Article 53 that treaties, arrange-
ments, acts and decisions relating to the European Commis-
sion’s rights, privileges, prerogatives and obligations were
confirmed,

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’.

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. |

In order to insure the execution of the powers of the Euro-
pean Commission, it was specifically stated in Article 52 that
the stationnaives of the Powers at the mouths of the Danube
might ascend the river as far as Galatz.

For the purpose of harmonizing the Public Act of Galatz of
1865, which regulated the powers of the European Commission
DISSENTING OPINION BY M. NEGULESCO 88

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 [to the Treaty of Berlin]... . shall continue

to govern its relations with the new Riverain States and their
effect shall extend as far as Galatz”. .

The signatory Powers. of the Treaty of Berlin concluded the
Treaty of London of March roth, 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 (facite reconduction).

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. |

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.

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.
DISSENTING OPINION BY M. NEGULESCO: 89

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. |
‘ 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.

“ Article 43: The High Contracting Parties recognize the
independence of Roumania, subject to the conditions set
forth in the following articles.”

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. |

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.

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.

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 consi-
der necessary to introduce.”

The words “prolongation of its powers” refer to a prolonga-
tion in time. The word “modifications” (of its powers) relates
DISSENTING OPINION BY M. NEGULESCO go

to the whole of the duties which the European Commission
had to fulfil. This word does not relate to a. territorial exten-
sion 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.

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.

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 faras
Galatz”, and also to the principle laid down in favour of the
European Commission that it shall act in complete independ-
ence of the territorial authority.

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 stationnaives may ascend,
in order to provide for the carrying out of the powers
conferred on the European Commission.

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..
DISSENTING OPINION BY M. NEGULESCO OI

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.

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.

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 juris-
diction 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 assem-
bled 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 Euro-
pean 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.

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 wuiltra vives 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.
DISSENTING OPINION BY M. NEGULESCO 92

. 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 interpreta-
tion 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.

‘Article x 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 beén. established by the Treaties of Paris.
of March 30th, 1856, and of London of March xr3th, 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 fay as Galatz’’.

-Roumania, as a sovereign State signatory of this Act, has
the right to rely on the above provisions as being the author-
itative interpretation of the Treaty of Berlin, and thus FE
the territorial extent of the European Commission as being “
far as Galatz’’..As the result of this Act,.no further modifica.
tion of the powers of the European Commission is possible
without Roumania’s assent. _

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 wnanimity of the Powers
assembled in London, and that an.endeavour should be made
to impose on Roumania ‘the result:.of their -decision. 55

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.:

12
DISSENTING OPINION BY M. NEGULESCO 93

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 exist-
ence of the Treaty.

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.

| Moreover; Article I of the.Treaty of London is closely
connected with Article VII of that Treaty:

Article I: “The jurisdiction of the European Com-
mission 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.”

It is beyond dispute that Roumania never adhered to
Article VIT. It must therefore be shown that Roumania
adhered to Article I, without adhering to Article VII, with the
consent of all the Powers.

It has been shown historically that Article VII was intro-
duced 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
DISSENTING OPINION BY M. NEGULESCO 94

met with the opposition of Austria-Hungary. It being impos-
sible 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.

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 Rou-
mania.

By Article UI 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 Euro-
pean 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.”

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 thé fact that
Roumania, in signing the Treaty of 1920, became the suc-
cessor 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. Rou-
mania, not being willing: to .benefit even indirectly by the
provisions of the Treaty of London which she had always repu-
diated, 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 1 conformity with the Treaty of
Berlin.
DISSENTING OPINION BY M. NEGULESCO 95

It has been sought to explain that independently of Rou-
mania 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.

The Concert of Europe has always been regarded ‘as a
political system and has never been considered as a legal organ-
ization; 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.

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.

If the only object. of the Coriference 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.

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 necess-
ary that Roumania, who was entitled to sit upon this Com-
mission under Article 33 of the Treaty of Berlin, should be
summoned to take part in the London Conference with the
right to vote.

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.

The letter of December 11th, 1882, sent by Lord Granville,
Seeretary of State for Foreign Affairs) to H.B.M.’s Embassies
runs as follows:
DISSENTING OPINION BY M. NEGULESCO 96

: “London, December 1rith, 1882.

Roumania not having been a Party to the Treaty of
Berlin cannot, as of right, claim to have a seat in any
eonference 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 confe-
rence 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 immediate-
ly 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 favour-
ably 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.”

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.

The letter of M. Duclerc, French Foreign Minister, to
Viscount Lyons, British Ambassador in Paris, is as follows !:

1 [Translation.]

“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
DISSENTING OPINION BY M. NEGULESCO 97

‘Paris, le 18 décembre 1882.

“Par sa lettre confidentielle du 13 de ce mois, Votre Excel-
Jence 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 4 se faire représenter a 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 exa-
minées, 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.”

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 1rth 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 rth
instant relative to the admission of Roumania to take part in
such Conference.

When I had concluded, His Excellency observed that, although
he quite admitted the soundness in principle of not deciding
questions in which any Power was immediately concerned

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+ shal be obliged if you will be good enough to acquaint your Government
of this.

Accept, 'etc.

(Signed) E. Ducierc.”
DISSENTING OPINION BY M. NEGULESCO 98

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 incon-
venient 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.”

‘ At the Conference of London, at the meeting of February
roth, 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 qu’elle aura également son représen-
tant dans la Commission mixte, dont la formation est pro-
posée 2”,

Count Münster did not share the view expressed by Lord
Granville. For, if, “tout en maintenant le principe de l’una-
nimité dans la conférence, on donnait une voix 4 la Rouma-
nie, on lui créerait une position qui ne serait nullement dési-
rable, 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 ?.”

1 [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 représentative on the Mixed
Commission which it was proposed to establish.”

2 [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

DISSENTING OPINION BY M. NEGULESCO 99

The Austro-Hungarian plenipotentiary took the same view
as Count Minster. | :

The Conference, adopting the opinion of the majority,
decided to invite Roumania to attend in an advisory capacity.

In Protocol No. 2 of the meeting of February roth, 1883,
it is stated that the Roumanian plenipotentiary having been
admitted to the Conference “on being informed of this deci-
sion, 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.” |

Roumania’s right to take part in the Conference on a foot-
ing 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 roth, 18831:

“Londres, le rer février 1883.

“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

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
and not as a host”.

4 [Translation.] “London, February ist, 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 repre-
sentative 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.
‘DISSENTING OPINION BY M. NEGULESCO 100

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.

Ti n’en était plus de même en 1878. A l'époque du Traité
de Berlin, la Roumanie était un État indépendant, ses inté-
rêts 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 4 se faire
représenter dans la Commission européenne du Danube.

Par l'article LITI 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 juri-

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 Confe-
rence is also justified by the ancient and established principles of Inter-
national 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, concern-
ing 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 roth, 1881.

It was therefore to be inferred from the fact that the Roumanian pleni-
potentiary 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 11th, 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 LIIT of the
Treaty of Berlin.

(Signed) Jon Guica,
Envoy Extraordinary and Minister Plenipotentiary
of His Majesty the King of Roumania.

To His Excellency Earl Granville,
President of the Conference.”

13
DISSENTING OPINION BY M. NEGULESCO IOI

diction de la Commission européenne. On ne pouvait pas
Vexclure de toute action sur des eaux dont on venait de lui
donner la possession. .

La participation de la Roumanie aux travaux de la Confé-
rence sur le pied de la plus parfaite égalité avec les autres
Puissances est indiquée par la naturé même des choses.
Ayant été admise au sein de la Commission européenne, on ne
peut l’exclure d’une conférence convoquée spéciälement pour
l'existence et l’organisation de cette même institution.

Il est à considérer que le droit de participation de la Rou-
manie à la Conférence est fondé aussi bien sur les prescrip-
tions 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 Etats 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 avee les autres Puis-
sances l’Acte additionnel a 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 4 la partie du Danube comprise entre Galatz
et les embouchures, arrété par la Commission européenne le
Ig mai 188r.

La signature du plénipotentiaire roumain impliquait dés lors
que la Roumanie serait également appelée a se prononcer direc-
tement et de pair avec les autres Puissances sur toutes les
questions relatives 4 la Commission européenne du Danube.
Du reste, le cabinet de Vienne, par sa note du 11 avril 1882,
s’est montré favorable à la participation de la Roumanie, et
le Gouvernement du Rot 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 LIII 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.”’

At the sitting of February 13th, 1883 (Protocol No. 3), the
Italian plenipotentiary, Count Nigra, proposed that the Confe-
rence should communicate to the Roumanian Government the
DISSENTING OPINION BY M. NEGULESCO 102

decision taken which was based on “le fait que la Conférence
a cru devoir se considérer en quelque sorte comme la pro-
longation et la suite du Traité de Berlin, auquel la Roumanie
n’a pas participé comme signataire ?”.

This proposal was unanimously adopted.

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 2:

“Londres, le 12 février 1883.

Monsieur le Comte,

Par ordre de mon Gouvernement, j’ai eu l’honneur d’adresser
a Votre Excellence, en date du 2 février, une note pour deman-
der que la Roumanie fût admise à prendre part a la Confé-
rence relative à la question du Danube, sur le même pied
que les autres Etats représentés dans la Commission euro-
péenne du Danube.

Votre Excellence ayant bien voulu me communiquer la
décision qui a été prise 4 ce sujet par les représentants des
Puissances signataires du Traité de Berlin, j'ai l’honneur de

1 [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’’. .

1 [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 Euro-
pean Commission of the Danube.

Your Excellency having been good enough to communicate to me the
decision taken on this subiect 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 Guica.
His Excellency Earl Granville,
President of the Conference.”
DISSENTING OPINION BY M. NEGULESCO 103

porter à la connaissance de Votre Excellence que le Gou-
vernement 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 Guica.

Son Excellence le Comte Granville,
Président de la Conférence.”

_ 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 Naviga-
tion and Police from the Iron Gates to Braila, the Minister
concludes as follows !:

“En examinant avec impartialité et équité les dispositions
du Traité de Londres du 10 mars 1883, on arrive nécessaire-
ment aux conclusions suivantes :

1} La Roumanie a des droits incontestables à la participa-
tion 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 dé co-signataire de l’Acte additionnel du 28 mai
1887.

1 [Translation.]

“An impartial and equitable examination of the terms of the Treaty of
London of March roth, 1883, necessarily leads to the following conclusions :

(t) 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. . oO

(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.”
DISSENTING OPINION BY M. NEGULESCO 104

2) N'ayant pu prendre part aux délibérations de la Confé-
rence 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.”

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 Braïla the
authority of the European Commission, and secondly in Austria-
Hungary’s desire that the Conference should adopt the Regula-
tions of Navigation and River Police from the Iron Gates to
Braila. |

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. |

*
* *

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.

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 Commis-
sion of the Danubé. 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 Inter-
DISSENTING OPINION BY M. NEGULESCO 105

national 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. . |

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 inter-
national 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 independ-
ence 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.

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.

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. |

No international custom showing that Roumania had aban-
doned her right of jurisdiction over the Galatz-Braïla 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. |

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
DISSENTING OPINION BY M. NEGULESCO 106

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.

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.
_ 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 Commis-
sion ; 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.

> | * * *

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.

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
DISSENTING OPINION BY M. NEGULESCO _ 107

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 Regula-
tions of the European Commission in favour of this Commis-
sion exercising rights of jurisdiction.

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.’

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.

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.

Articles 12 and. 14 of the Barcelona Convention of April zoth,
1921, further confirm this point of view.

Article 14 stipulates that if-any special agreements or treaties
conferred certain functions relating to navigation to an inter-
national commission, the powers and duties of the commission
shall at least include the rights of drawing up navigation regula-
tions. The text does not say: “and jurisdictional powers”.
This right must be exercised, subject to treaty provisions to
the. contrary, by the territorial authorities.

Still less can it be said that technical powers involve juris-
dictional powers, because such a contention would not corres-
pond 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. .

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 jurisdic-
tion was exercised by the territorial authority, as laid down in
Article 8 of the Public Act of Galatz of November 2nd, 1865.
DISSENTING OPINION BY M. NEGULESCO 108

From the Treaty of Barcelona of April 2oth, 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.

Article 6.—Each of the contracting States maintains
its existing right, on the navigable waterways or parts
of navigable waterways referred to in Article x and situat-
ed under its sovereignty or authority, to enact the sti-

‘ pulations 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 immi-
gration, 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.

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. author-

izes 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

14
DISSENTING OPINION BY M. NEGULESCO 109

as not to prejudice the rights of the Stäte territorially
interested as regards the supervision and administrative
control over the works, or its sovereignty or authority
over the navigable waterway.

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 juris-
diction is claimed.

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 police and navigation regu-
lations which apply to the Lower Danube only confer this right
upon the Powers below Galatz ?

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 regula-
tions 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 cannot 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 Regula-
tions, 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.

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 1, 3, 165 and Igo,
which relate to the right. of jurisdiction, correspond to the
title of the Regulations : |
DISSENTING OPINION. BY M. NEGULESCO ‘I1I0

Article premier —L’exercice. de la navigation sur le bas
Danube en aval de Galaiz est placé sous lautorité de
l'inspecteur de la navigation et du capitaine du port de
Soulina 1.

Article 3.—L’inspecteur est spécialement préposé a la
police du bas Danube en aval de Galatz, a l'exclusion du
port de Soulina?. :

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 Galaiz et Soulina, ne peut
présenter son rôle d'équipage, ou refuse de le produire
aux agents de l’Inspection de la navigation.

Article 190.—L’inspecteur de la navigation et le capi-
taine du port de Soulina connaissent des contraventions
commises, dans l'étendue de leur ressort, contre les
dispositions du présent Règlement et prononcent, en
première instance, l'application des amendes encourues à
raison de ces contraventions.

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,

[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.”

2 [Trdnslation.] “The Inspector is specially charged with the police of the
Lower Danube below Galaiz, exclusive of the port of Sulina.”

3 [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.”
oa [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.” |
DISSENTING QPINION BY M. NEGULESCO . Tit

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.

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.’

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
©f 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 188z: If the Powers possessed
jurisdictional powers under these provisions, why then did the
Treaties of Berlin and of London extend the territorial author- :
ity 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.

‘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
DISSENTING OPINION BY M. NEGULESCO Liz

navigable channel passing through the ports of Galatz and
Braïla . or in the sector in dispute outside these ports, since
in these two cases Roumania’s right of jurisdiction is dispyted.
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..

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.

The Committee takes no account of these two cases, for in
these particular instances Article 10 of the Roumanian Regula-
tions 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. |

The Roumanian Authorities further condemned for. infringe-
ments of their Police Regulations the yacht Carolus and the
tug Jster, belonging to the European Commission, by sentences
No. 2537 (November 26th, 1907) and No. 279 (March 6th, rgo1).

The Committee excludes the first case. As regards the second, it
was a condemnation for excessive speed on leaving the port of
Galatz. |

‘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. -

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.
DISSENTING OPINION BY M. NEGULESCO IXI3

Roumanian protests -and decisions of the European Com-
Mission of the Danube.

: As'a result of the repeated protests. of the. Roumanian:
delegate against the abusive acts. of the Inspector of Naviga-
tion, the rights of the territorial. authorities in the sector
were formally recognized by. the European Commission’s
decision of March roth, 1892. ri

The note sent by the Commission to all delegates and
reproducing the decision taken to this effect is as follows:

“Commission européenne du Danube.
N° 432. :
Galatz, le 20 mars 1892:
Monsieur et cher Collégue,

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 concer-
nant deux dépositions ‘recueillies par Vinspecteur de la navi-
gation sur les circonstances d’un échouement qui a eu lieu
en amont de Galatz, la résolution suivante a été prise à l’una-
nimité 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’inspec-
teur 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. Roma-
. NENKO, -I. D. BALACEANO, M. AZARIAN !”

1 {Translation.]

“European Commission of the Danube, |
No. 432. ; Galatz, March 2oth, 1892: :

Monsieur et cher Collègue,

The Executive Committee has the honour to inform you that at ‘its
meeting of March roth, 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) Rarraur, Percy SANDERSON, GiuLio TEs1, A. RoMANENKO,
I. D. BALACEANO, M. AZARIAN.”’

DISSENTING OPINION BY M. NEGULESCO 114
Custom. |

: ° . Por lt

It has been demonstrated above that an isolated fact or
ease 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 exer-
cise 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. 19Ir is not very clear from the documents
submitted to the Committee. ...”

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 Commis-
sion 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.

The following is the formula to be found’ in all these
sentences !:

«Nous, Inspecteur de la Navigation du bas Danube,

Vu les articles 32 et 105 du Règlement de navigation et
de police, édicté sous la date du 10 novembre igir 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.»

It is therefore clear that in this case no international
custom exists, since there is neither a continued exercise

1 [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 roth, 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 r3th, 1871, and of
the Treaty of Berlin of July 13th, 1878.”

4
DISSENTING OPINION BY M. NEGULESCO IIS

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.

It will be shown later that the Protocol of May 6th, 1927,
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.

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.

*
* *

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 euro-
péenne 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 émbou-
chures du fleuve jusqu’au point où commence la. compé-
tence de la Commission internationale 4.”

1 [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
DISSENTING OPINION BY M. NEGULESCO II6
{

- 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 ‘
made clear by comparing the Treaty of Berlin, which,
Article 54, refers to the Powers of the Commission, © ‘vith
the Additional Act of Galatz which, in Article x, states
that the vights derived from the Treaty of Berlin are to
continue to hold good in the future.

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 alter-
ation 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.”
: 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 Commis-
sion’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.
’ 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,

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 Braila
à la mer Noire!.”

. The Roumanian plenipotentiary refused to accept it. Agreement
was reached in regard to Galatz and on the basis. of a

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 Interna-

tional Commission commences.

1 [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.”

15
DISSENTING OPINION BY M. NEGULESCO 117

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 dés ports fluviaux
autres que le port de Soulina.

Toutefois, la compétence technique de la Commission s’éten-
dra comme par le passé sur le chenal navigable entre Galatz
et Braïla. Le service du pilotage reste compris dans cette

compétence 1.”

The Gerinan plenipotentiary objected: “....that the general
authority of the European Commission had -been extended
by the Treaty of London of March roth, 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 roth, 1883, had never been accepted by Roumania.
The European Commission had only carried out technical
works between Galatz and Braila for the upkeep and improve-
ment 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.”

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 dredg-
ing, buoying and pilotage.

Subject to these observations, Article VI was adopted in
first reading.”

x [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.”
DISSENTING OPINION BY M. NEGULESCO 118

. 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. IT, p. 595.)

The Roumanian plenipotentiary said that he was prepared
to accept the formula proposed with one modification: the
substitution of the word compétence (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”.

The Hungarian plenipotentiary having asked “what authority
was responsible for the drawing up. and application of naviga-
tion 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
DISSENTING OPINION BY M. NEGULESCO 119g

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.”

On May 6th, 1927, 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?:

“Annexe II au Protocole n° 68.

Protocole interprétatif de l’article VI du Statut du Danube,
arrété par la Commission européenne du Danube.

A la suite de adoption par la Conférence internationale du
Danube de l’article VI du projet de statut définitif qui déter-
mine la compétence de la Commission européenne, les délégués
de France, de Grande-Bretagne, d'Italie et de Roumanie ont

1 [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 :
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 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 régime has hitherto been
applied. It is clearly understood, therefore, that the powers of the Com-
mission 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 Confe-
rence and placed in the official archives of the European Commission of the:
Danube. :

‘Done at Paris, May 6th, 1921.

(Signed) A. LEGRAND, (Signed) BALDWIN,
Delegate of France. Delegate of Great Britain.
(Signed) SiCILIANI, (Signed) ContzEsco,

Delegate of Italy. Delegate of Roumania.”
DISSENTING OPINION BY M. NEGULESCO £120

tonvenu, sur la demande de la Conférence, de rédiger le proto-
colé suivant en vué 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 inter-
nationale », 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 jus:
qu’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 confor-
mité 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
étiropéenne continuera, comme par le passé, à entretenir le
chenal navigable et son service de pilotage. Foi

“La“présente déclaration sera communiquée à ‘la Conférence
internationale à toutes fins utiles et versée aux archives offi-
elles de la Commission européenne du Danube. |

Fait à. Paris, le 6 mai 1921.

Le délégué de France: Le délégué de Grande-Bretagne :

(Signe) A. LEGRAND. (Signé) J. G. Batpwin.
Le délégué d'Italie: | | Le délégué de Roumanie :
à (Signé) V. SICILIANI. | > (Signé) C. CONTZESCO.”

+ 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:

“Le Président rappelle a la Conférence que, lorsqu’elle
s’est occupée d’établir la compétence de la Commission euro-
péenne, il avait été entendu, sur la proposition du plénipo-
tentiaire 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-
DISSENTING OPINION BY M: NEGULESCO | Taz

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 séance 1”

All the members of the Conference were in agreement as
regards the President’s statemént.'

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 Com-
mission which is not submitted to ratification by the Powers
and which establishes the conditions under which the Commis-
sion’s powers were in fact exercised in the past.

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.

It cannot be said that the European Commission exceeded
its powers by giving a decision on matters which were sub-
mitted 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.

Assuming that the Protocol had no obligatory force either
as an act of the Conference relating to the Statute of the

& [Translation] “The President draws the attention of the Conference to
the fact that at the time when it was considering the definition of the
competence 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.”
DISSENTING OPINION BY M. NEGULESCO 123

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 régime 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 the
States 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”

_ The Protocol lays down that as regards the sector in dis-
pute, the European Commission of the Danube has not exer-
cised 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 Braïla-Galatz sector.

Article 6 of the Statute of the Danube, being intended to
transform the de facto situation before the war into one de
juve, 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. .

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
Roumanian Government has repeatedly protested, nor to
DISSENTING OPINION BY M. NEGULESCO 123

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 provi-
sions of Article 6 which have been invoked in the present
case would be violated. |

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 Rou-
mania 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. _

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.

The following are the terms of this decision:

“(z) 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.
DISSENTING OPINION BY M: NEGULESCO. - 124

(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 lervitorial
authority shall ex officio send to the European Commission
of the Danube copies of the proceedings and of the judgment or
order of non-liew (dismissing the case) vendered by him.’ In
other. cases, these documents shall only be communicated at:
the express request of the Commission.

(5) Should the local authority dearn “that in this sector damage.
has been. done to the property of the Commission, he will auto-
matically 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-ts. concerned and
shall take such action as may be necessary. In. case of necess-
ity it may ask the territorial authority for additional inform-
ation.

(7) Fines inflicted as a result of sentences 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 Com-
mission of the Danube. -

(8) Pilots shall remain solely under the authority and.
jurisdiction of the European Commission of the Danube.”

lf 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. |
‘ 16 7
‘DISSENTING.‘OPINION BY M. NEGULESCO : 125

“Though the Roumanian representative has admitted in Court

that technical powets have been exercised on the sector im.

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 argu-
ment in this case.

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 of London, ie.
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. . |

At the Conference of Versailles, in connection with the

submission: of ‘the first draft of Article 346 to the Commission
ef Ports, Waterways and Railways, the Roumanian plenipoten-
tiary 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.
: At the Danube Conference, this declaration was repeated
in order to staté that the Treaty of London was. not binding
en 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 indispens-
able’ either to éxplain in the actual text of Article :43 that
what was meant was the maintenance of all the said inter:
national 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 delega-
tion “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

ww
DISSENTING OPINION BY M. NEGULESCO 126

particular the Treaty of London of 1883 had.not been accept-
ed 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 Art-
icle 43 should satisfy-the Roumanian p lenipotentiary, 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... ‘+ 2 . 7

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.”

Similar statements were made by the Roumanian plenipoten-
tiary 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 Com-
mission 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 Jaw, 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.

+
* *

« 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: Com-
mission ' 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 reas:
sumes the powers it possessed before the war...” Now. it
has already been shown that the word ‘‘powers” in Article 5
DISSENTING OPINION BY M. NEGULESCO 127

-of the Statute means “rights” under Article r of the Additional :
Act: of Galatz of 1881. Article 346.of the Treaty of Ver-
sailles therefore refers to the rights of the European’ Commis-
sion’ conferred: upon: it by the treaties and. international
instruments relating to the Danube -and its mouths. :

: 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 thé 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. |

Article 346. (Treaty of Versailles) :

“The European. Commission ‘of thé Dañube reassumes
the powers: it possessed before, the war...” 8

.

Articlé 347:

“From the point where the competence of the Enropean

Commission ceases, the Danube system referred. to in Arti-

cle 331 shall be placed under the administration of an
International Commission composed as follows : D

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. 0-2 05 0 | oi

A comparison between the articles of the Treaty of Ver-
-sailles:.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
DISSENTING OPINION BY M. : NEGULESCO 128

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 régimes, 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 ŒEuropeañ Commission, beginning at this
point and extending to the mouths (Article 6).

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 +0
modify the powers of the European Commission.

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..

Article 331 of the Treaty of Versailles contains ‘the following
enumeration : Lo oo.

“The following rivers are declared international :
The Elbe (Labe) from its confluence with the Viltava
(Moldau), and the Vitava (Moldau) from’ Prague ;
DISSENTING OPINION BY: M. NEGULESCO. 1239

The Oder (Odra) from its confluence with the: Oppa ;
The . Niemen ({Russstrom-Memel-Nieinen) from Grodno ;:
The Danube from Ulm....’’. : ;

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. |: ;

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 ah
advisory capacity, namely: Germany, Austria, Bulgaria and
Hungary. : :

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 regula-
tions for, and not modify, the régime of the Danube as
accepted by those Powers under the Peace Treaties, particularly
since the régime 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.’ : :

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 :

_Tvanslation.; “I consider, as I have often said, that this
Conference must respect the provisions of treaties and that
it must conform to stich provisions.
©

DISSENTING. OPINION .BY uM. NEGULESCO. 130

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 Conférence. is of: the opinion ‘that this
Commission was maintained ‘by: the -Peace Treaties, we can
only réfer 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. ...’”

The representative of the British Government before the
Conciliation Commission entirely approved the: words of the
Roumanian delegate : poire ae

“That shows that if you: take the 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.” oo

And later on:

“The article in the Treaty of Versailles which is: really
the basis of all our work, l.have already had occasion te
read this morning. By it, the European Commission. of the
Danube reassumes the powers. it possessed before the war.’

. The French Memorial comes: to the same .conclusion :

“Tl apparaît clairement que l’article 346 du Traité dé: Ver-
sailles est toujours en vigueur et qu ‘il. reste à l’heure -actuelle
la base juridique des compétences de la Commission euro-
péenne 1. 1” .

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 Danübe.
system will be placed under the control. of. the International
Commission. And since this is at Galatz, in conformity

1 [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.”’
DISSENTING OPINION BY, M: NEGULESÇO . 131:

with Article 53 of the Treaty of Berlin, it follows that the
International Commission exercises its powers from Ulm to
below Galatz.

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.

“In “order. to ‘reply to the other questions, the following
points must be considered : oo :

(a) What is the upstream limit to the powers of the Euro-
pean Commission ?

(b} At what exact point must the line of demarcation
between the two régimes be fixed ? Fe

(c) What are the powers which are exercised on the sector
in dispute and over the ports of Galatz and Braila? ~~
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
it specifically states that the Commission shall exercise. its.
_ powers “as far as Galatz”.

. On the other. hand, Article 3. of the Navigation Regulations.
stipulates that :

“L’inspecteur est spécialement | préposé la police
du bas Danube en aval de. Galatz, à Pexclusion du. port
7 de Soulina ?.”

The use of the expressions “below Galatz” and “with the
exception of thé Port of Sulina” shows. that the powers, of
the European Commission should be exercised over the naviga-
ble 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, 1973 {Protocol No, 845).

2 [Translation “The Inspector is in special charge. of the policing ot:
the Lower Danube downstream from Galatz with the exception of the Port:
of . Sulina.’ : “ : ..
DISSENTING. OPINION BY M. NEGULESCO 132

The following are the terms of these Instructions :

“8 I.

In conformity with Article 3 of the Navigation and
Police Regulations issued by the European Commission of
the Danube on November xoth, 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 Galaiz and
the upper limits of the Port of Sulina; and the super-
vision 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 jar 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 com-
mitted 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.” :

It should be noted that neither the Treaty of Berlin nor
the Additional Act of Galatz of 188r 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 :

17
DISSENTING OPINION BY M. NEGULESCO-: 133

of the country. As a result of the world war this port—the
largest of a country which has almost trebled its population—was
bound to develop as far as the mouths of the Pruth (713
milestone): It is moreover unanimously admitted that the
notion of a “port’? does not refer to an agglomeration of
buildings but a territorial area (Opinion No. 11, p. 40). The
zone comprised between the Galatz-Reni railway, the Danube
and the Pruth, represents the area necessary for the development
_ of the port and for the creation of the free zones provided
for by Article XXI of the Statute of the Danube. And this
particularly so, since, by the incorporation of Bessarabia, the
Pruth, which is a navigable waterway, no longer forms a
boundary but in its entire course traverses Roumanian territory.

Moreover, according to the Roumanian Regulations of 1870,
the jurisdiction of the captain of the port of Galatz extends
up to the point (713 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 régime which has been established
for ports on the international river system, as provided by
Articles XX, XXI, XXII of the Statute of the Danube.

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 régimes: the
general régime which applies to international rivers and
which respects the rights of jurisdiction of the territorial
authorities, and the régime recognized de facto by Roumania:
the pilotage services and the maintenance of the navigable
channel by the European Commission of the Danube.

On these grounds, I am of the opinion:

1° (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.
DISSENTING OPINION BY M. NEGULESCO 134

(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-Braïla sector and the navigable channel which
crosses. thé 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 714 milestone.

(Signed) DEMETRE NEGULESCO.