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1921年国际可航水道制度的国际公约与规范 INTERNATIONAL CONVENTION AND STATUTE CONCERNING THE REGIME OF NA-VIGABLE WATERWAYS OF INTERNATIONAL CONCERN, 1921

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颁布日期:19210420 实施日期:19210420 颁布单位:巴塞罗那

  Albania, Austria, Belgium. Bolivia, Brazil, Bulgaria, Chile, China,Colombia, Costa Rica, Cuba, Denmark, the British Empire (with New Zealandand India), Spain, Esthonia, Finland, France, Greece, Guatemala, Haiti,Honduras, Italy, Japan, Latvia, Lithuania, Luxemburg, Norway, Panama,Paraquay, the Netherlands, Persia, Poland, Portugal, Roumania, theSerb-Croat-Slovene State, Sweden, Switzerland, Czecho-Slovakia, Uruguay,and Venezuela:

  Desirous of carrying further the development as regards theinternational regime of navigation on internal waterways, which began morethan a century ago, and which has been solemnly affirmed in numeroustreaties.

  Considering that General Conventions to which other Powers may accedeat a later date constitute the best method of realising the purpose ofArticle 23(e) of the Covenant of the League of Nations.

  Recognising in particular that a fresh confirmation of the principleof Freedom of Navigation in a Statute elaborated by forty-one Statesbelonging to the different portions of the world constitutes a new andsignificant stage towards the establishment of co-operation among Stateswithout in any way prejudicing their rights of sovereignty or authority.

  Having accepted the invitation of the League of Nations to take partin a Conference at Barcelona which met on March 10, 1921, and having takennote of the Final Act of such Conference.

  Anxious to bring into force forthwith the provisions of the Statuterelating to the Regime of Navigable Waterways of International Concernwhich has there been adopted.

  Wishing to conclude a Convention for this purpose, the HighContracting Parties have appointed plenipotentiaries Who, aftercommunicating their full powers, found in good and due form, have agreedas follows:Article 1

  The High Contracting Parties declare that they accept the Statute onthe Regime of Navigable Waterways of International Concern annexed hereto,adopted by the Barcelona Conference on April 19, 1921.

  This Statute will be deemed to constitute an integral part of thepresent Convention. Consequently, they hereby declare that they acceptthe obligations and undertakings of the said Statute in conformity withthe terms and in accordance with the conditions set out therein.Article 2

  The present Convention does not in any way affect the rights andobligations arising out of the provisions of the Treaty of Peace signed atVersailles on June 28, 1919, or out of the provisions of the othercorresponding Treaties, in so far as they concern the Powers which havesigned, or which benefit by, such Treaties.Article 3

  The present Convention, of which the French and English texts are bothauthentic, shall bear this day's date and shall be open for signatureuntil December 1, 1921.Article 4

  The present Convention is subject to ratification. The instruments ofratification shall be transmitted to the Secretary-General of the Leagueof Nations, who will notify the receipt of them to the other Members ofthe League and to States admitted to sign the Convention. The instrumentsof ratification shall be deposited in the archives of the Secretariat.

  In order to comply with the provisions of Article 18 of the Covenantof the League of Nations, the Secretary-General will register the presentConvention upon the deposit of the first ratification.Article 5

  Members of the League of Nations which have not signed the presentConvention before December 1, 1921, may accede to it.

  The same applies to States not Members of the League to which theCouncil of the League may decide officially to communicate the presentConvention.

  Accession will be notified to the Secretary-General of the League, whowill inform all Powers concerned of the accession and of the date on whichit was notified.Article 6

  The present Convention will not come into force until it has beenratified by five Powers, The date of its coming into force shall be theninetieth day after the receipt of the Secretary General of the League ofNations of the fifth ratification. Thereafter the present Convention willtake effect in the case of each Party ninety days after the receipt of itsratification or of the notification of its accession.

  Upon the coming into force of the present Convention, theSecretary-General will address a certified copy of it to the Powers notMembers of the League which are bound under the Treaties of Peace toaccede to it.Article 7

  A special record shall be kept by the Secretary-General of the Leagueof Nations, showing which of the Parties have signed, ratified, acceded toor denounced the present Convention. This record shall be open to theMembers of the League at all times; it shall be published as often aspossible in accordance with the directions of Council.Article 8

  Subject to the provisions of Article 2 of the present Convention, thelatter may be denounced by any Party thereto after the expiration of fiveyears from the date when it came into force in respect of that Party.Denunciation shall be effected by notification in writing addressed to theSecretary-General of the League of Nations. Copies of such notificationshall be transmitted forthwith by him to all the other Parties, informingthem of the date on which it was received. The denunciation shall takeeffect one year after the date on which it was notified to theSecretary-General, and shall operate only in respect of the notifyingPower. It shall not, in the absence of an agreement to the contrary,prejudice engagements entered into before the denunciation relating to aprogramme of works.Article 9

  A request for the revision of the present Convention may be made atany time by one-third of the High Contracting Parties.

  In faith whereof the above-named Plenipotentiaries have signed thepresent Convention.

  Done at Barcelona the twentieth day of April one thousand nine hundredand twenty-one, in a single copy which shall remain deposited in thearchives of the League of Nations.

  STATUTE ON THE REGIME OF NAVIGABLE WATERWAYS OF INTERNATIONAL CON-CERN

  Article 1

  In the application of the Statute, the following are declared to benavigable waterways of international concern:

  1. All parts which are naturally navigable to and from the sea of awaterway which in its course, naturally navigable to and from the sea,separates or traverses different States, and also any part of any otherwaterway naturally navigable to and from the sea, which connects with thesea a waterway naturally navigable which separates or traverses differentStates.

  It is understood that:

  (a) Trans-shipment from one vessel to another is not excluded bythe words “navigable to and from the sea”;

  (b) Any natural waterway or part of a natural waterway is termed“naturally navigable” if now used for ordinary commercial navigation, orcapable by reason of its natural conditions of being so used; by “ordinarycommercial navigation” is to be understood navigation which, in view ofthe economic condition of the riparian countries, is commercial andnormally practicable;

  (c) Tributaries are to be considered as separate waterways;

  (d) Lateral canals constructed in order to remedy the defects of awaterway included in the above definition are assimilated thereto;

  (e) The different States separated or traversed by a navigablewaterway of international concern, including its tributaries ofinternational concern, are deemed to be “riparian States.”

  2. Waterways, or parts of waterways, whether natural or artificial,expressly declared to be placed under the regime of the General Conventionregarding navigable waterways of international concern either inunilateral Acts of the States under whose sovereignty or authority thesewaterways or parts of waterways are situated, or in agreements made withthe consent, in particular, of such States.

  Article 2

  For the purpose of Articles 5, 10, 12 and 14 of this Statute, thefollowing shall form a special category of navigable waterways ofinternational concern:

  (a) Navigable waterways of which there are internationalCommissions upon which non-riparian States are represented;

  (b) Navigable waterways which may hereafter be placed in thiscategory, either in pursuance of unilateral Acts of the States under whosesovereignty or authority they are situated, or in pursuance of agreementsmade with the consent, in particular, of such States.

  Article 3

  Subject to the provisions contained in Articles 5 and 17, each of theContracting States shall accord free exercise of navigation to the vesselsflying the flag of any one of the other Contracting States on those partsof navigable waterways specified above which may be situated under itssovereignty or authority.

  Article 4

  In the exercise of navigation referred to above, the nationals,property and flags of all Contracting States shall be treated in allrespects on a footing of perfect equality. No distinction shall be madebetween the nationals, the property and the flags of the differentriparian States, including the riparian States exercising sovereignty orauthority over the portion of the navigable waterway in question;similarly no distinction shall be made between the nationals, the propertyand the flags of riparian and non-riparian States. It is understood, inconsequence, that no exclusive right of navigation shall be accorded onsuch navigable waterways to companies or to private persons.

  No distinctions shall be made in the said exercise, by reason of thepoint of departure or of destination, or of the direction of the traffic.

  Article 5

  As an exception to the two preceding Articles, and in the absence ofany Convention or obligation to the contrary:

  1. A riparian State has the right of reserving for its own flag thetransport of passengers and goods loaded at one port situated under itssovereignty or authority and unloaded at another port also situated underits sovereignty or authority. A State which does not reserve theabove-mentioned transport to its own flag may, nevertheless, refuse thebenefit of equality of treatment with regard to such transport to aco-riparian which does reserve it.

  On the navigable waterways referred to in Article 2, the Act ofNavigation shall only allow to riparian States the right of reserving thelocal transport of passengers or of goods which are of national origin orare nationalised. In every case, however, in which greater freedom ofnavigation may have been already established. in a previous Act ofNavigation, this freedom shall not be reduced.

  2. When a natural system of navigable waterways of internationalconcern which does not include waterways of the kind referred to inArticle 2 separates or traverses two States only, the latter have theright to reserve to their flags by mutual agreement the transport ofpassengers and goods loaded at one port of this system and unloaded atanother port of the same system, unless this transport takes placebetween two ports which are not situated under the sovereignty orauthority of the same State in the course of a voyage, effected withouttranshipment on the territory of either of the said States, involving asea-passage or passage over a navigable waterway of international concernwhich does not belong to the said system.

  Article 6

  Each of the Contracting States maintains its existing right, on thenavigable waterways or parts of navigable waterways referred to in Article1 and situated under its sovereignty or authority, to enact thestipulations and to take the measures necessary for policing the territoryand for applying the laws and regulations relating to customs, publichealth, precautions against the diseases of animals and plants, emigrationor immigration, and to the import or export of prohibited goods, it beingunderstood that such stipulations and measures must be reasonable, mustbe applied on a footing of absolute equality between the nationals,property and flags of any one of the Contracting States, including theState which is their author, and must not without good reason impede thefreedom of navigation.

  Article 7

  No dues of any kind may be levied anywhere on the course or at themouth of a navigable waterway of international concern, other than dues inthe nature of payment for services rendered and intended solely to coverin an equitable manner the expenses of maintaining and improving thenavigability of the waterway and its approaches, or to meet expenditureincurred in the interest of navigation. These dues shall be fixed inaccordance with such expenses, and the tariff of dues shall be posted inthe ports. These dues shall be levied in such a manner as to renderunnecessary a detailed examination of the cargo, except in cases ofsuspected fraud or infringement of regulations, and so as to facilitateinternational traffic as much as possible, both as regards their ratesand the method of their application.

  Article 8

  The transit of vessels and of passengers and goods on navigablewaterways of international concern shall, so far as customs formalitiesare concerned, be governed by the conditions laid down in the Statute ofBarcelona on Freedom of Transit. Whenever transit takes places withouttrans-shipment the following additional provisions shall be applicable:

  (a) When both banks of a waterway of international concern arewithin one and the same State, the customs formalities imposed on goods intransit after they have been declared and subjected to a summaryinspection shall be limited to placing them under seal or padlock or inthe custody of customs officers.

  (b) When a navigable waterway of international concern forms thefrontier between two States, vessels, passengers and goods in transitshall while “en route” be exempt from any customs formality, except incases in which there are valid reasons of a practical character forcarrying out customs formalities at a place on the part of the river whichforms the frontier, and this can be done without interfering withnavigation facilities.

  The transit of vessels and passengers, as well as the transit of goodswithout trans-shipment, on navigable waterways of international concern,must not give rise to the levying of any duties whatsoever, whetherprohibited by the Statute of Barcelona on Freedom of Transit or authorisedby Article 3 of that Statute. It is nevertheless understood that vesselsin transit may be made responsible for the board and lodging of anycustoms officers who are strictly required for supervision.

  Article 9

  Subject to the provisions of Articles 5 and 17, the nationals,property and flags of all the Contracting States, shall, in all portssituated on a navigable waterway of international concern, enjoy, in allthat concerns the use of the port, including port dues and charges, atreatment equal to that accorded to the nationals, property and flag ofthe riparian States under whose sovereignty or authority the port issituated. It is understood that the property to which the presentparagraph relates is property originating in. coming from or destined for,one or other of the Contracting States.

  The equipment of ports situated on a navigable waterway ofinternational concern, and the facilities afforded in these ports tonavigation, must not be withheld from public use to an extent beyond whatis reasonable and fully compatible with the free exercise of navigation.

  In the application of customs or other analogous duties, local octroior consumption duties, or incidental charges, levied on the occasion ofthe importation or exportation of goods through the aforesaid ports, nodifference shall be made by reason of the flag of the vessel on which thetransport has been or is to be accomplished, whether this flag be thenational flag or that of any of the Contracting States.

  The State under whose sovereignty or authority a port is situated maywithdraw the benefits of the preceding paragraph from any vessel if it isproved that the owner of the vessel discriminates systematically againstthe nationals of that States, including companies controlled by suchnationals.

  In the absence of special circumstances justifying an exception on theground of economic necessities, the customs duties must not be higher thanthose levied on the other customs frontiers of the States interested, ongoods of the same kind, source and destination. All facilities accorded bythe Contracting States to the importation or exportation of goods by otherland or water routes, or in other ports, shall be equally accorded toimportation or exportation under the same conditions over the navigablewaterway and through the ports referred to above.

  Article 10

  1. Each riparian State is bound, on the one hand, to refrain from allmeasures likely to prejudice the navigability of the waterway, or toreduce the facilities for navigation, and on the other hand, to take asrapidly as possible all necessary steps for removing any obstacles anddangers which may occur to navigation.

  2. If such navigation necessitates regular upkeep of the waterway,each of the riparian States is bound as towards the others to take suchsteps and to execute such works on its territory as are necessary for thepurpose as quickly as possible, taking account at all times of theconditions of navigation, as well as of the economic state of the regionsserved by the navigable waterway.

  In the absence of an agreement to the contrary, any riparian Stateswill have the right, on valid reason being shown, to demand from the otherriparians a reasonable contribution towards the cost of upkeep.

  3. In the absence of legitimate grounds for opposition by one of theriparian States, including the State territorially interested, basedeither on the actual conditions of navigability in its territory, or onother interests such as, inter alia, the maintenance of the normal-waterconditions, requirements for irrigation, the use of water-power, or thenecessity for constructing other and more advantageous ways ofcommunication, a riparian States may not refuse to carry out worksnecessary for the improvement of the navigability which are asked for byanother riparian State, if the latter State offers to pay the cost of theworks and a fair share of the additional cost of upkeep. It is understood,however, that such works cannot be undertaken so long as the State on theterritory of which they are to be carried out objects on the ground ofvital interests.

  4. In the absence of any agreement to the contrary, a State which isobliged to carry out work of upkeep is entitled to free itself from theobligation, if, with the consent of all the co-riparian States, one ormore of them agree to carry out the works instead of it; as regards worksfor improvement, a State which is obliged to carry them out shall be freedfrom the obligation, if it authorises the State which made the request tocarry them out instead of it. The carrying out of works by States otherthan the State territorially interested, or the sharing by such State inthe cost of works, shall be so arranged as not to prejudice the rights ofthe States territorially interested as regards the supervision andadministrative control over the works, or its sovereignty and authorityover the navigable waterway.

  5. On the waterways referred to in Article 2, the provisions of thepresent Article are to be applied subject to the terms of the Treaties,Conventions, or Navigation Acts which determine the Powers andResponsibilities of the International Commission in respect of works.

  Subject to any special provisions in the said Treaties. Conventions,or Navigation Acts, which exist or may be concluded:

  (a) Decisions in regard to works will be made by the Commission.

  (b) The settlement, under the conditions laid down in Article 22below, of any dispute which may arise as a result of these decisions, mayalways be demanded on the grounds that these decisions are ultra vires, orthat they infringe international conventions governing navigablewaterways. A request for a settlement under the aforesaid conditions basedon any other grounds can only be put forward by the State which isterritorially interested.

  The decisions of this Commission shall be in conformity with theprovisions of the present Article.

  6. Notwithstanding the provisions of paragraph 1 of this Article, ariparian State may, in the absence of any agreement to the contrary, closea waterway wholly or in part to navigation, with the consent of all theriparian States or of all the States represented on the InternationalCommission in the case of navigable waterways referred to in Article 2.

  As an exceptional case one of the riparian States of a navigablewaterway of international concern not referred to in Article 2 may closethe waterway to navigation, if the navigation on it is of very smallimportance, and if the State in question can justify its action on theground of an economic interest clearly greater than that of navigation. Inthis case the closing to navigation may only take place after a year'snotice and subject to an appeal on the part of any other riparian Stateunder the conditions laid down in Article 22. If necessary, the judgementshall prescribe the conditions under which the closing to navigation maybe carried into effect.

  7. Should access to the sea be afforded by a navigable waterway ofinternational interest through several branches, all of which are situatedin the territory of one and the same State, the provisions of paragraphs1, 2 and 3 of this Article shall apply only to the principal branchesdeemed necessary for providing free access to the sea.

  Article 11

  If on a waterway of international concern one or more of the riparianStates are not parties to this Statute, the financial obligationsundertaken by each of the Contracting States in pursuance of Article 10shall not exceed those to which they would have been subject if all theriparian States had been Parties.

  Article 12

  In the absence of contrary stipulations contained in a specialagreement or treaty, for example, existing Conventions concerning customsand police measures and sanitary precautions, the administration ofnavigable waterways of international concern is exercised by each of theriparian States under whose sovereignty or authority the navigablewaterway is situated. Each of such riparian States has, inter alia, thepower and duty of publishing regulations for the navigation of suchwaterway and of seeing to their execution. These regulations must beframed and applied in such a way as to facilitate the free exercise ofnavigation under the conditions laid down in this Statute.

  The rules of procedure dealing with such matters as ascertaining,prosecuting and punishing navigation offences must be such as to promoteas speedy a settlement as possible.

  Nevertheless the Contracting States recognise that it is highlydesirable that the riparian States should come to an understanding withregard to the administration of the navigable waterway and, in particular,with regard to the adoption of navigation regulations of as uniform acharacter throughout the whole course of such navigable waterway as thediversity of local circumstances permits.

  Public services of towage or other means of haulage may be establishedin the form of monopolies for the purpose of facilitating the exercise ofnavigation, subject to the unanimous agreement of the riparian States orthe States represented on the International Commission in the case ofnavigable waterways referred to in Article 2.

  Article 13

  Treaties, conventions or agreements in force relating to navigablewaterways, concluded by the Contracting States before the coming intoforce of this Statute, are not, as a consequence of its coming into force,abrogated so far as concerns the States signatories to those treaties.

  Nevertheless the Contracting States undertake not to apply amongthemselves any provisions of such treaties, conventions or agreementswhich may conflict with the rules of the present Statute.

  Article 14

  If any of the special agreements or treaties referred to in Article 12has entrusted or shall hereafter entrust certain functions to aninternational Commission which includes representatives of States otherthan the riparian States, it shall be the duty of such Commission subjectto the provisions of Article 10, to have exclusive regard to the interestsof navigation, and it shall be deemed to be one of the organizationsreferred to in Article 24 of the Covenant of the League of Nations.Consequently, it will exchange all useful information directly with theLeague and its organisations, and will submit an annual report to theLeague.

  The powers and duties of the Commissions referred to in the precedingparagraph shall be laid down in the Act of Navigation of each navigablewaterway and shall at least include the following:

  (a) the Commission shall be entitled to draw up such navigationregulations as it thinks necessary itself to draw up, and all othernavigation regulations shall be communicated to it;

  (b) it shall indicate to the riparian States the action advisablefor the upkeep of works and the maintenance of navigability;

  (c) it shall be furnished by each of the riparian States withofficial information as to all schemes for the improvement of thewaterway;

  (d) it shall be entitled, in cases in which the Act of Navigationdoes not include a special regulation with regard to the levying of dues,to approve of the levying of such dues and charges in accordance with theprovisions of Article 7 of this Statute.

  Article 15

  This Statute does not prescribe the rights and duties of belligerentsand neutrals in time of war. The Statute shall, however, continue in forcein time of war so far as such rights and duties permit.

  Article 16

  This Statute does not impose upon a Contracting State any obligationconflicting with its rights and duties as a Member of the League ofNations.

  Article 17

  In the absence of any agreement to the contrary to which the Stateterritorially interested is or may be a party, this Statute has noreference to the navigation of vessels of war or of vessels performingpolice or administrative functions, or, in general, exercising any kind ofpublic authority.

  Article 18

  Each of the Contracting States undertakes not to grant either byagreement or in any other way, to a non-Contracting State, treatment withregard to navigation over a navigable waterway of international concernwhich, as between Contracting States, would be contrary to the provisionsof this Statute.

  Article 19

  The measures of a general or particular character which a ContractingState is obliged to take in case of an emergency affecting the safety ofthe State or the vital interests of the country may, in exceptional casesand for a period as short as possible, involve a deviation from theprovisions of the above Article, it being understood that the principle ofthe freedom of navigation and especially communication between theriparian States and the sea, must be maintained to the utmost possibleextent.

  Article 20

  This Statute does not entail in any way the withdrawal of existinggreater facilities granted to the free exercise of navigation on anynavigable waterway of international concern, under conditions consistentwith the principle of equality laid down in this Statute, as regards thenationals, the goods, and the flags of all the Contracting States; nordoes it entail the prohibition of such grant of greater facilities in thefuture.

  Article 21

  In conformity with Article 23(e) of the Covenant of the League ofNations, any Contracting State which can establish a good case against theapplication of any provision of this Statute in some or all of itsterritory on the ground of the grave economic situation arising out of theacts of devastation perpetrated on its soil during the war 1914-1918,shall be deemed to be relieved temporarily of the obligations arising fromthe application of such provision, it being understood that the principleof freedom of navigation must be observed as far as possible.

  Article 22

  Without prejudice to the provisions of paragraph 5 of Article 10, anydispute between States as to the interpretation or application of thisStatute which is not settled directly between them shall be brought beforethe Permanent Court of International Justice, unless under a specialagreement or a general arbitration provision steps are taken for thesettlement of the dispute by arbitration or some other means.

  Proceedings are opened in the manner laid down in Article 40 of theStatute of the Permanent Court of International Justice.

  In order to settle such disputes, however, in a friendly way as far aspossible, the Contracting States undertake before resorting to anyjudicial proceedings and without prejudice to the powers and right ofaction of the Council and of the Assembly to submit such disputes for anopinion to any body established by the League of Nations as the advisoryand technical organisations of the Member of the League in matters ofcommunications and transit. In urgent cases a preliminary opinion mayrecommend temporary measures intended in particular to restore thefacilities for free navigation which existed before the act or occurrencewhich gave rise to the dispute.

  Article 23

  A navigable waterway shall not be considered as of internationalconcern on the sole ground that it traverses or delimits zones orenclaves, the extent and population of which are small as compared withthose of the territories which it traverses, and which form detachedportions or establishments belonging to a State other than that to whichthe said river belongs, with this exception, throughout its navigablecourse.

  Article 24

  This Statute shall not be applicable to a navigable waterway ofinternational concern which has only two riparian States and whichseparates, for a considerable distance, a Contracting State from anon-Contracting State whose Government is not recognised by the former atthe time of signing of this Statute, until an agreement has been concludedbetween them establishing, for the waterway in question, anadministrative and customs regime which affords suitable safeguards to theContracting State.

  Article 25

  It is understood that this Statute must not be interpreted asregulating in any way rights and obligations inter se of territoriesforming part, or placed under the protection, of the same sovereignStates, whether or not these territories are individually Members of theLeague of Nations.

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