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NOTES ON RIVERS AS BOUNDARIES

1. PRELIMINARY

In the middle ages rivers which separated alien peoples or tribes were looked upon as neutral barriers rather than areas susceptible of nice division and capable of ownership.1 There gradually arose, however, a sense of the necessity for the assertion of control over such waters; but there was confusion of thought as to the nature and extent of that control. Rivers served as natural arteries of commerce as well as natural boundaries. The matter of navigation was of as great moment as that of territorial limits. For that reason, early writers announced the principle of co-dominion, which assigned to the opposite riparian proprietors rights of sovereignty over the entire stream.2 Men found it difficult to reconcile the claim of exclusive sovereignty asserted by one state over any portion of the stream, with the claim of another to exercise rights of navigation therein. No doubt the latter claim had a marked effect upon the scope of the former. Nevertheless, rights of navigation were not decisive of the problem whether a line of division might be drawn through the waters of a river in recognition of exclusive sovereign rights of the states on either side thereof. It came to be understood that such a line could be drawn. In accordance with the views of Grotius and Vattel, nations were agreed that it should pass through the middle of the stream. This method of division proved, however, to be unsatisfactory in the case of navigable rivers; for, in disregarding the course of the principal channel, it was likewise heedless of the equities of the state that happened to be the more remote therefrom. Nor did it adapt itself to gradual changes which such channel might undergo. As a result, at the beginning of the nineteenth century, riparian states began to conclude

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1 See historical review by E. Nys, in his Le Droit International, I, 423-437, citing at 424, H. Helmolt, in the Historisches Jahrbuch, 1896, pp. 235 et seq. 2 Ibid., I, 425.

Campbell's Grotius, Chapter III, §§ 7 and 8; Chitty's Vattel (1859), Chapter XXII, § 266, p. 120.

* See E. Engelhardt, Du Régime Conventionnel des Fleuves Internationaux, 73.

treaties which proposed a different method of division and which has since become the accepted mode of indicating the frontier.5

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2. THALWEG

It has long been agreed that, when a navigable river forms the boundary between two states, the dividing line follows the thalweg of the stream. The thalweg, as the derivation of the term indicates, is the 5 See Article 6 of Treaty of Luneville, February 9, 1801, De Clercq, Traités de la France, I, 426, following the views by the French plenipotentiaries expressed at the Congress of Rastadt in March and April, 1798.

Numerous treaties since the beginning of the nineteenth century make express provision that the frontier along navigable rivers shall follow the thalweg. See, for example, Art. V of the definitive treaty between France and the Allies of May 30, 1814, Brit. & For. State Pap. I, Pt. I, 156; also collection of treaties containing similar provisions in the Argument of the United States in the Chamizal Arbitration (Washington, 1911) 10-21. Among recent conventions to the same effect may be noted that between the Argentine Republic and Brazil of October 6, 1898, Brit. & For. State Pap., XC, 85; also that between Great Britain and France of June 14, 1898, for the delimitation of possessions west of the Niger, Brit. & For. State Pap., XCI, 38, 45.

The treaties of the United States concerning river boundaries lack uniformity of expression. Article II of the definitive treaty of peace with Great Britain of September 3, 1783, provided that the frontier should follow the "middle" of boundary rivers as well as of water communications between the lakes. (Malloy's Treaties, I, 587.) Article I of the Webster-Ashburton treaty of August 9, 1842, provided that the frontier along the river St. John should follow the "middle of the main channel." (Id., I, 651.) The treaty of April 11, 1908, concerning the Canadian international boundary, provided in Article II, respecting the St. Croix River, that the line should "follow the center of the main channel or thalweg as naturally existing, except where such course would change or disturb or conflict with the national character of islands as already established by mutual recognition and acquiescence." (Id., I, 818.) This is the first boundary convention of the United States in which the term thalweg was employed.

Article II of the treaty with Spain of October 27, 1795, provided that the boundary along St. Mary's River should follow the "middle thereof;" while Article IV declared that the "western boundary of the United States which separates them from the Spanish colony of Louisiana is the middle of the channel or bed of the river Mississippi." (Id., II, 1641, 1642.) Article III of the treaty with Spain of February 22, 1819, provided that the boundary should follow the "course" of the Red River between specified points, all islands therein being assigned to the United States. (Id., II, 1652-1653.)

Article II of the treaty with Mexico of January 12, 1828, declared that between specified points the boundary should follow the "course" of the Rio Roxo or Red River. (Id., I, 1083.) According to Article V of the treaty of Guadaloupe-Hidalgo, of February 2, 1848, the boundary was to proceed up the "middle" of the Rio Grande

downway, or the course followed by vessels of largest tonnage in descending the river. That course frequently, if not commonly, corresponds with the deepest channel. It may, however, for special reasons take a different path. Wheresoever that may be, such a course necessarily indicates the principal artery of commerce, and for that reason is decisive of the thalweg.8

The Supreme Court of the United States, recognizing the doctrine of thalweg, has declared that in the case of navigable boundary rivers the line follows the "middle of the main channel of the stream." 9

"following the deepest channel where it has more than one;" also down the "middle" of a specified branch of the river Gila. (Id., I, 1109.) Article I of the Gadsden treaty with Mexico of December 30, 1853, referred to the "middle" of the Rio Grande, and likewise to that of the Colorado. (Id., I, 1122.) In the preamble of the boundary convention with Mexico of November 12, 1884, it was declared that according to the provisions of the two last mentioned treaties the dividing line follows the "middle of. the channel of the Rio Grande and Rio Colorado;" and it was therefore provided in Article I, that the dividing line should forever "follow the center of the normal channel of the rivers named, notwithstanding any alterations in the banks or in the course of those rivers, provided that such alterations be effected by natural causes through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one." (Id., I, 1159–1160.)

7 Declares Westlake: “When a river forms the boundary between two states it is usual to say that the true line of demarcation is the thalweg, a German word meaning literally the 'downway,' that is the course taken by boats going down stream, which again is that of the strongest current. The slack current being left for the convenience of ascending boats. Thal in the sense of valley enters into thalweg only indirectly. The immediate origin of the word lies in the use of berg and thal to express the upward and downward directions on a stream, like amont and aval in French." (Int. Law, I, 141, and note 1.)

Declared the Supreme Court of the United States in the case of Louisiana v. Mississippi, 202 U. S. 1, 49: "The term 'thalweg' is commonly used by writers on international law in definition of water boundaries between States, meaning the middle or deepest or most navigable channel. And while often styled 'fairway' or 'midway' or 'main channel,' the word itself has been taken over into various languages. Thus in the treaty of Luneville, February 9, 1801, we find 'le Thalweg de l'Adige,' 'le Thalweg du Rhin,' and it is similarly used in English treaties and decisions, and the books of publicists in every tongue.”

According to Article III of the "Plan respecting the International Regulation of Navigable Rivers," adopted by the Institute of International Law at Heidelberg, in 1887, "the frontier of the states separated by the rivers is marked by the thalweg, that is to say by the medial line of the channel." (Annuaire, IX, 182.)

8 See Sir G. S. Baker's 4th ed. of Halleck's Int. Law, 182, § 23.

* See Iowa v. Illinois, 147 U. S. 1, 7–14; Handly's Lessee v. Anthony, 5 Wheat. 374;

The boundary line is subject to the gradual and imperceptible changes of the thalweg due to accretion or erosion, and produced by natural causes.10 If the change is perceptible and sudden, the boundary continues to follow the line indicated by the previous channel. This is true whether the river leaving its former bed thereby makes for itself a Buttenuth v. St. Louis Bridge Co., 123 Ill. 535; Keokuk & Hamilton Bridge Co. v. The People, 145 Ill. 596; Same v. Same, 167 Ill. 15; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U. S. 626; Bellefontaine Improvement Co. v. Niedringhaus, 181 Ill. 426; Louisiana v. Mississippi, 202 U. S. 1; Iowa v. Illinois, 202 U. S. 59. Compare, opinion of Mr. Crittenden, Attorney-General, 5 Op. Attys.-Gen., 412.

The Supreme Court of the United States, in the case of Iowa v. Illinois (147 U. S. 1, 7-14), has declared that, according to international law and the usage of European states, the terms "middle of the stream" and the "mid-channel" as applied to a navigable river, are synonymous and interchangeably used; and that the former was employed in the latter sense in the treaty of peace concluded by Great Britain, France and Spain at Paris in 1763. It may be doubted whether the quotations made from Wheaton, Creassy, Twiss, Halleck, Woolsey and Phillimore, sustain such a conclusion. It is believed that prior to the Treaty of Luneville of 1801, nations employed the term "middle of the stream" or "mid-stream" in boundary conventions for the reason that a line other than one drawn mid-way between the banks of a river was rarely contemplated. After that treaty, states having become familiar with the principle of thalweg, seem to have employed either that term or some other clearly synonymous with it whenever the new mode of demarcation was intended. The principal boundary treaties concluded since the beginning of the nineteenth century afford abundant evidence of the fact that states have generally taken great care to express their acceptance of the principle of thalweg, and have avoided the use of words the literal meaning of which might encourage the inference that the contracting parties sought to retain the old method of establishing a frontier.

10 See opinion of Mr. Cushing, Attorney-General, 8 Op. Attys.-Gen., 175; Nebraska v. Iowa, 143 U. S. 359; McBaine v. Johnson, 155 Missouri, 191; Bellefontaine Improvement Co. v. Niedringhaus, 181 Illinois, 426; Argument of the United States in the Chamizal Arbitration, p. 26.

See also Article I of the boundary convention between the United States and Mexico, of Nov. 12, 1884, which is believed to express with exactness the correct rule of law in the requirement, that in order to subject the boundary to variations of the thalweg, the changes in the latter must be "effected by natural causes." (Malloy's Treaties, I, 1159–1160.)

In the case of Washington v. Oregon, 211 U. S. 127, 136, the Supreme Court of the United States declares: "When, in a great river like the Columbia, there are two substantial channels, and the proper authorities have named the center of one channel as the boundary between the States bordering on that river, the boundary, as thus prescribed, remains the boundary, subject to the changes in it which come by accretion, and is not moved to the other channel, although the latter in the course of years becomes the most important and properly called the main channel of the river." 11 See opinion of Mr. Cushing, Attorney-General, 8 Op. Attys.-Gen. 175; Cooley v.

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new course, or simply alters by enlargement or otherwise the path of the principal channel. 12

If a state which is the territorial sovereign over lands on both sides of a river makes a grant of territory on one side of the stream, "it retains the river within its own domain, and the newly erected state extends to the river only." 13 Treaties have oftentimes recognized the fact that a river, instead of forming the boundary between two states, may be itself a part of the national domain of one riparian proprietor, the limit of whose territory is the further edge of the stream.14

Golden, 52 Mo. App. 229; Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23; Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 546.

12 In the case of Nebraska v. Iowa, 143 U. S. 359, the Supreme Court of the United States held that while there might be an instantaneous and obvious erosion on one side of the Missouri River, if the accretion to the other side was gradual and imperceptible by alluvial deposits, the boundary would follow the changes in the channel thus effected, notwithstanding their rapidity.

In the case of the Chamizal Arbitration before the Special International Boundary Commission, under the convention between the United States and Mexico of June 24, 1910, a grave problem arose concerning the interpretation of the boundary convention between those countries of November 12, 1884, relating to the Rio Grande and Rio Colorado. Article I of that convention provided that the dividing line should follow the center of the normal channel of those rivers irrespective of any alterations in their banks or courses, provided that such alterations were "effected by natural causes through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one.' "The presiding commissioner, Professor La Fleur, and the Mexican commissioner, Mr. Puga, who constituted a majority of the tribunal, were of opinion that the language quoted signified that the boundary should not vary with alterations in the course of the Rio Grande in case of a rapid and obvious erosion even though there might be no abandonment of the river bed. The American commissioner, General Mills, was, however, of opinion that it was impossible to impute to the contracting parties an intention to prevent the boundary from following changes in the course of the river in the case of rapid and perceptible erosion unless there was also an abandonment of the existing river bed. For the text of the award of the court and the dissenting opinion of the American commissioner, see this JOURNAL, Vol. 5, p. 782.

13 Handly's Lessee v. Anthony, 5 Wheat. 374.

Writes Hall: "Upon whatever grounds property in the entirety of a stream or lake is established, it would seem in all cases to carry with it a right to the opposite bank as accessory to the use of the stream, and perhaps it even gives a right to a sufficient margin for defensive or revenue purposes, when the title is derived from occupation, or from a treaty of which the object is to mark out a political frontier" (5 ed., 123, quoted in Moore, Dig., I, 617, note.)

14 See, for example, Article III of the treaty between the United States and Spain

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