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Mr. Lumley, No. 193,
October 24, 1875.
Confidential paper No. 2874 (Sir E. Hertalet).
Sir C. Bagot, No. 12,
October 28, 1825.
Mr. L. Hertslet's Memorandum of November 1832 (No. 262).
In 1875 a Danish vessel, the “ Phoenix," was stopped by a Dutch gun-boat in the Scheldt for running down a Dutch vessel and refusing to pay the damages claimed by the owners; the matter was amicably settled as between the Dutch and Danish Governments, but the Belgian Government were not a little disquieted, and made representations to the Powers, on the ground that the seizure did not take place in a Netherlands port, nor in Netherlands waters exempt from all international obligations, but in the channel of the Scheldt forming the communication between the sea and Antwerp, No definite action seems to have resulted on this occasion from the representations of the Belgian Govern- ment; but, in a memorandum written by Sir E. Hertslet at the time, a view is taken of the question more favourable to the Dutch than to the Belgians; and the opinion is quoted of Dr. Abdy, as stated in his notes on Kent's commentaries, that one of the principles well established with regard to the free navigation of rivers is that "while the free navigation of rivers running through or bounding several States is maintained, the Riparian States may exercise rights of sovereignty in such rivers" at the same time it is added that Dr. Abdy cannot be regarded as a recognised authority.
It would seem that the Dutch were as a matter of fact within their rights in seizing the " Phoenix," since article 2 of the general regulations drawn up at Vienna in 1815, and already quoted, distinctly contemplated the exercise of measures of police on free rivers, and that they should be exercised by the local authorities of the Riparian States.
Moreover, the following point is of interest as bearing both on the "Phoenix" incident and upon the right of the Dutch to fortify Flushing, it being borne in mind that, accordingly to the Treaties, as already indicated, the position of the Scheldt is assimilated to that of the Rhine:-
After the Treaty of Vienna the attitude of the Netherlands respecting freedom of navigation on the Rhine was very obstructive, and led to strong and collective representations on the part of the Powers on repeated occasions: the correspondence on the subject is very voluminous, but the arguments against the contentions of the Netherlands Government were stated in great detail in a note presented by the British Minister at the Hague in 1825, and the representations of the British Government were supported entirely by all the other Great Powers. The note in question admitted that the right of sovereignty of the Netherlands over the sea adjoining its own territory was not disputed, and that the design of the Congress Treaty (1815) was not opposed to any rights of sovereignty which it might be necessary to exercise for the protection of the Netherlands territory.
In the face of this admission, it would be difficult to maintain that the Powers have any treaty right to prevent the fortification of Flushing.
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