« PreviousContinue »
England also seems to have sacrificed practically all that was gained by Colonel Younghusband's recent invasion of Thibet, but she secures Russia's promise to recognize and respect Thibetan integrity and Chinese suzerainty (this much China gains), and so avoids the necessity of a large standing guard there. Further, she has not only secured the recognition of the existing status in Afghanistan, but has obtained a promise that Russia will remove her agents from Afghan territory and will treat with that Government through England as an intermediary. She would seem moreover to have strengthened her position with Japan because, as indicated above, the Anglo-Japanese alliance would appear to be no longer of prime importance to England and to have become of chief importance to Japan, because Russia, by securing her southern frontier, is left a freer hand to deal with the far east, and in proportion as Russia grows stronger there, Japan has need of the English alliance. This vantage may serve Britain a good turn in meeting with Japan the problems which the Pacific coast situation seems to be forcing before the two Governments.
The only real losses to England are in Persia and Thibet, and it would seem she could well afford to barter these for frontier security. Sir Edward Gray may well be congratulated on his achievements.
As to its effect upon the European powers, France is reported as rejoicing over this agreement between two countries with which she has. an alliance, while Germany is considered as again excluded from the concert of powers and as having her commercial advance into Persia checked if not, indeed, entirely cut off. But it is not thought this in itself will precipitate any serious trouble. The situation seems admirably covered by the Spectator when it says:
If it has any effect upon the equilibrium of Europe, it will be an effect wholly unpremeditated. Such results, of course, are conceivable; it is always conceivable that a European Power which restricts its anxieties far away from home will expend nearer home the reserve of political nerve-power thus set free. But, on the whole, we do not think that the Convention will have any directly recognizable influence upon what we call the balance of power in Europe.
THE DISPUTE BETWEEN THE ARGENTINE REPUBLIC AND URUGUAY AS TO THEIR JURISDICTION IN THE RIO DE LA PLATA.
The long-standing dispute between the Argentine Republic and Uruguay as to their jurisdiction in the Rio de la Plata has recently been revived owing to a decree of the Uruguayan Government of August 3rd
providing for the issuance of permits to employ drag-nets in fishing "outside a zone of five miles from the coast and up to the middle of the river." This decree is considered peculiarly objectionable by the Argentine Government since Article 8 provides that "the fish obtained by means of drag-nets will be sold during the first six months from the date of this decree in the exterior." Inasmuch as the fresh fish from the Rio de la Plata can be kept but a short time, the most available " terior" market would seem to be Buenos Aires, and it is claimed by Argentine that not only is the concession as a whole illegal in that it invades the territorial waters of Argentine, but that this provision means a ruinous competition for the Argentine fishermen, whose fishing rights. under Argentine law are by on means so liberal in character.
More recently (November 6th), the press dispatches report friction as the result of the detention by the Argentine authorities of a small Uruguayan steam vessel at the Island of Martin García, a small island in the Plata the title to which is in dispute between the two Governments.
As long ago as 1853, the strategic importance of this island was understood, and in the treaty of that year between the United States and the Argentine Republic it was provided, article 5, that
The High Contracting Parties, considering that the Island of Martin García may, from its position, embarrass and impede the free navigation of the Confluents of the River Plate, agree to use their influence to prevent the possession of the said Island from being retained or held by any State of the River Plate, or its Confluents which shall not have given its adhesion to the principle of their free navigation.
Happily, no question of the free navigation and commerce of the river enters into the present dispute, as these are assured and decreed by constitutional and treaty provisions. The dispute relates to general territorial jurisdiction, with its accompanying sovereign and proprietary rights.
Argentine appears to claim jurisdiction over the entire estuary of the Rio de la Plata except an indefinite marginal zone on the Uruguayan coast, basing her claim on historical grounds, while Uruguay seems to contend that the territorial jurisdiction of the two countries should be divided by a line drawn either through the middle of the channel of the river filum aquæ or the thalweg or by an imaginary line drawn exactly through the geographical center of the water surface.
The physical configuration of the Rio de la Plata is such as at once to increase the importance and the difficulty of the jurisdictional questions involved. The Rio de la Plata is formed by the conjunction, at an
obtuse angle, of the Uruguay and Parana rivers. As a result, the Plata has no deep central channel, but has two channels, one towards Buenos Aires, which is practically a prolongation of the Parana River, and the other along the coast of Uruguay, the latter being virtually a prolongation of the Uruguay River reinforced by the Parana, which, through a large arm, sends a great part of its waters toward the Uruguayan shore; and it is claimed by the Argentine Government that the Island of Martin García, though apparently in the Uruguay River, is in fact, owing to the configuration of the channel, separated from Uruguay by the main channel of the Uruguay River. Moreover, the deep channel of the Plata on the Argentine shore appears not to extend to the open sea. At the river mouth there are various banks, such as those known as the Peidas, Arquimedas, and Ingles, which block the entrance on the Argentine shore and produce deep waters on the Uruguayan side.
So much for the difficulty of determining the filum aquæ or thalweg if it were conceded that the dispute were to be determined by the application of the ordinary principle of international law. The great practical importance of the physical facts under the contentions actually advanced by the two Governments will be noted later on.
As a matter of fact, however, neither country appears to admit that the so-called "thread of the stream" furnishes in this case the proper boundary line. The Argentine Government, as above noted, seems to have always maintained that its jurisdiction extends over the entire Rio de la Plata, except a restricted zone along the Uruguayan shore, the extent of which has never been expressly defined, but which is assumed to be the ordinary three-mile limit of territorial waters. The Argentine contention rests principally upon the historical argument that Uruguay, which was originally known as the "Oriental Province" and formed a part of the old united Provinces of Rio de la Plata and was in fact united with them until 1817 (when it was seized by the Portuguese, and later in 1822 by the Brazilians when they won their independence from Portugal), does not and cannot have other legal limits in the river than those which it possessed as an Argentine province, and, according to the Argentine contention, these boundaries of the "Oriental Province were, in accordance with principles laid down in older treaties, fixed in 1814 as the east bank of the Uruguay River and the north bank of the Rio de la Plata.
The situation, therefore, according to the contention of Argentina, appears to resemble, in a general way (aside from the fact that Uruguay
is admitted to have jurisdiction over an undefined marginal zone), that along the Ohio River where Virginia ceded to Congress all her territory" situate, lying, and being to the northwest of the Ohio River," by which grant Virginia has always been held to retain jurisdiction over the river itself. See Handly's Lessee v. Anthony, et al., 5 Wheaton 374, On the other hand, Uruguay maintains that the colonial and provincial antecedents are entirely immaterial, since the two banks of the Rio de la Plata no longer belong to the same country. It maintains that the independence of Uruguay carried with it the ordinary jurisdictional consequences of national independence and that the general principles governing the demarkation of the jurisdictional boundary upon international rivers should be applied.
The Uruguayan claim appears to be in the alternative that the boundary line should follow either the middle of the main navigable channel, the filum aquæ or thalweg, or an imaginary line drawn exactly through the geographical center of the river. This latter contention would seem to find support in the ruling of the Supreme Court of Iowa in the case of Dunleith & Dubuque Bridge Company v. The County of Dubuque, 55 Iowa 558, which, when defining the boundary between Iowa and Illinois in the Mississippi River, a river in which the navigable channel is tortuous, shifting, and uncertain, held that the expression "middle of the river" should be construed to mean a line midway of the water surface. The Supreme Court of Illinois, however, repudiated the decision in the Iowa case and adhered to what appears to be the orthodox American rule that "when applied to rivers as boundaries between States, the phrases middle of the river' and 'middle of the main channel' are equivalent expressions and both mean the center line of the main. channel or, as it is most frequently expressed, the thread of the stream.” ” Buttenuth v. The St. Louis Bridge Company, 123 Illinois 535.
Frequently the two rules would yield substantially the same result. In the case of the Rio de la Plata, however, as above pointed out, the geographical center of the river, instead of being the middle of the main channel, is frequently the shallowest portion of the river, and if the Uruguayan contention for a division midway of the water surface were. accepted, a hostile fleet might easily sail up the river safely within Uruguayan waters and seriously threaten Buenos Aires as well as the Uruguay and Parana rivers from the rear; whereas, under the Argentine contention, or even, it would seem, under the rule which fixes the boundary in the thread of the main channel, it would be possible for
Argentine to forestall any such attempt through the adoption of suitable precautions.
Moreover, it should be remembered that the estuary of the Rio de la Plata is 190 miles in length from northwest to southeast, and where it joins the Atlantic Ocean between Maldonado and Cape San Antonio is 135 miles across, while even at the head of the inner estuary it is about 75 miles in width. Under these circumstances, it might be contended that the ordinary rule defining the limits of marginal waters should be applied and that everything outside the three-mile line on both coasts should be considered as a part of the high seas free to the warships of all nations. The settlement of the question along these lines, it will be noted, would leave Buenos Aires even more open to hostile attack than if jurisdiction were conceded to Uruguay. Doubtless, however, both Argentina and Uruguay would unite in claiming that the estuary of the Plata is not a part of the high seas, and such a contention would seem to find much support in the attitude of other countries and in the decided cases. See the case of The Grange, 1 American State Papers, 147-149, 1 Opinions of the Attorneys-General 32, in which the Attorney-General ruled that the whole of Delaware Bay is within the territorial jurisdiction of the United States; The Alleghanian, 4 Moore's International Arbitrations 4333, 5 ibid 4675, Scott's Cases on International Law 143, in which the waters of Chesapeake Bay were held to be within the jurisdiction of the United States; Direct U. S. Cable Company v. Anglo-American Telegraph Company, House of Lords 2 Appeal Cases 394, the Conception Bay case; and Manchester v. Massachusetts, 1890, 139 U. S. 240, in which Buzzards' Bay was held to be within the jurisdiction of Massachusetts.
It is in view of the serious consequences which might follow a decision either upholding the Uruguayan contention or deciding that the estuary of the Plata outside the usual three-mile line is a part of the high seas, that the Argentine Government is understood to feel that, notwithstanding the very ample terms of the general arbitration treaty between Argentina and Uruguay negotiated in 1899 and ratified in 1902, the question as to the limits of the two countries in the Rio de la Plata affects so nearly the integrity and safety of the Republic that it cannot properly be submitted to arbitration.