BOOK REVIEW
The Law of International Waterways
by R. R. Baxter
Harvard University Press, 1964, pp. vii, 371
Professor Baxter’s study was undertaken in 1954 at the sugges-
tion of the Suez Canal Company and the Carnegie Corporation but
was paid for entirely by Carnegie under its International Legal
Studies program. It will be recalled that this was at the beginning
of a series of crises in the relations of Egypt to the Suez Canal
Company and affecting the vital interests not merely of the Com-
pany but of France and the United Kingdom in particular and many
other states as well, who were principal users of the Canal.
By an interesting coincidence international law scholars had begun
to examine afresh the problem of water communications with par-
ticular reference to international rivers and related straits and canal
questions. At Dubrovnic in 1956 the late Professor Clyde Eagleton,
chairman of the International Law Association’s Committee on the
Legal Uses of International Rivers had added to the Committee’s
terms of reference “international waterways” other than rivers and
this included, of course, artificially constructed passages, such as
canals, as well as straits and narrow seas, not dissimilar to canals
in some of the legal problems presented.
Through the work of the International Law Association the canal
problem was linked to the more general question of navigational and
non-navigational uses of international waterways particularly rivers
questions since what they had in common was the matter of ac-
cess for non-riparians and the character of control and administra-
tion where more than one riparian was involved. Perhaps even
more unifying was the physical and doctrinal framework in general
since these were questions involving movement of vessels, people
and goods over waterways systems. For the “unity” of global waters
from rivers going to the sea as well as the sea itself, gave rise to this
general legal inter-action and stimulated the development of research
McGILL LAW JOURNAL
[Vol. 11
into related questions arising out of communications on international
waterways of all types.
Professor Baxter’s volume on International Waterways is confined
primarily to artificially constructed canals leading from either one
part of the high seas to another or connecting inland waterways
with the open sea. The study stands in contrast to the somewhat
earlier research of Professor J. Berber on Rivers in International
Law published in 1959, influenced in part also by the thinking and
research that followed Clyde Eagleton’s work as chairman of the
I.L.A. committee referred to. Finally, a series of recent volumes on
fisheries, navigation on the high seas and the legal problems of
bays, published since the Geneva Conferences on the Law of the Sea,
of 1958 and 1960, suggest a continuing and vital concern with the
unifying demography of water systems that link all of mankind
from deep interiors of continents to the immense seas that dominate
the physical surface of this planet. For not without reason Professor
Baxter quotes the late Rachael Carson that the world is “…. a planet
dominated by its covering mantel of ocean, in which the continents
are but transient intrusions of land above the surface of the all-
encircling sea”. (p. 1)
Professor Baxter has surveyed the whole development of canals,
river and inter-oceanic, and in his introductory chapter has given
the discussion a unity despite the great diversity in the illustrations
available from Kiel to Corinth, from Panama to Suez, from Rhine
to St. Lawrence. He has made an effort to demonstrate the emergence
of certain interwoven customary rules despite the diversity of the
enterprises, the conventional arrangements that deal with them and
the specialized administrative methods operating in each system.
He does not pretend that there is a common body of customary law
governing rivers, canals and straits, but he does indicate, in referring
to the S.S. Wimbledom and the Corfu Channel cases, that the
differences have “… not prevented the establishment of certain
principles of international
law having common application to a
particular category of international waterways or to two such types
of watercourse. For the moment, however, we must content ourselves
with extracting such general wisdom as can be derived from expe-
riences, gained in connection with the shared problems of inter-
national waterways.” (pp. 48-49)
What Professor Baxter has done is to take the Suez, the Panama,
the St. Lawrence Seaway, the Kiel and certain related experience
with the Danube and Rhine Commissions and attempt to explore
varieties of operation or supervision. He divides these methods into
five groups: administration by a private company (the Suez Canal) ;
No. 2]
BOOK REVIEW
operation of an inter-oceanic canal by a foreign sovereign (Panama
Canal); operation by the territorial sovereign (the Kiel and Suez
Canals); operation
(the St.
Lawrence Seaway); administration
international com-
missions (Rhine and Danube).
international coordination
through
through
In addition he is, of course, concerned with the classical problems
of the right of passage in times of peace and war. He is also aware
of the very important question of fiscal control since tolls and finan-
cing are at the very heart of disputes or international satisfaction;
and he has two chapters on technical problems of administration of
international waterways in general and of international canals in
particular (Chap. VI and VII).
Finally, Professor Baxter has drawn from his years of experience
as a member of the International Rivers Committee of the I.L.A.
where he was inspired to prepare some draft “Articles on The
Navigation of International Canals”, a small code of rules designed
to provide a viable framework for the relations of riparian sovereign
or administrator to the users whoever they may be. (Appendix p. 343)
Naturally Professor Baxter has had the advantage of writing
this book long after the dispute over the Suez Canal has come to an
end thus providing perspectives that would not have been possible
ten years ago when in 1954 he published his first paper on the
subject dealing with international waterways in time of war. (1954,
31 BYIL, p. 187). Moreover, within that time also the Panama Canal
has given rise to new levels of dispute between the territorial
sovereign and the lessee in perpetuity, the United States, thus
providing more data on the difficulties of such a relationship in the
modern period. Then too, the St. Lawrence Seaway has emerged
as a unique example of international cooperation with unilateral
but coordinated legislation and machinery as its basis. This has
provided an interesting lesson in the management of a situation
where the logic of a bi-national supervisory and operating mechanism
was defeated by political pressures in both Canada and the United
States, particularly the latter, and numerous indirect devices have
had to be developed to replace simple direct legal cooperation by
means of an all-embracing treaty.
It is difficult to criticize Professor Baxter’s valuable effort to
provide a scholarly survey of the main legal and administrative
problems of straits, canals and rivers, uniting them into some kind
of doctrinal unity, but in a sense he has done both too much and too
little. It was too much for him to exhaust in detail the facts and
present the variety of canal-waterway systems with which he deals.
McGILL LAW JOURNAL
[Vol. 11
It was too little to put forward a concept of unity and then deal only
peripherally with the related questions of international river control.
The most evident difficulty with this “between-two-stools” situation
is to be found in his brief, and to some extent inadequate, treatment
of the St. Lawrence Seaway to which he devotes barely six pages of
descriptive-analytical comment. Admitting the difficulties of finding
information, the problems deserved a good deal more sophisticated
and elaborate treatment. Indeed he does not quote the one paper
that deals with “The Legal Framework of the St. Lawrence Seaway”
nor does he refer to the valuable collection of papers produced by
Professor Proehl in honour of the Seaway which includes as well
as the above paper much information that might have been helpful
(see Proehl, Legal Problems of International Trade, 1959).
Nevertheless, Professor Baxter’s volume is a valuable exercise
in bringing together much of the modern experience with inter-
national waterways particularly inter-oceanic canals and waterways
from rivers to the open sea. He concludes by saying “There is ample
room for the view that inter-oceanic canals are already governed
by a common body of law, which is the product of state practice, of
treaties, and of adjudication,… Having regard to the continuing
importance of the subjection of these waterways to a regime founded
on law, the codification of these rules would be a useful step in
giving them greater precision and in securing general acceptance of
the existing customary law.” (pp. 340-341). The author’s own draft
Articles go a long way to meeting this possible need for a general
codification and, in a world of increasing pressure for sharing the
resources of the sea and of all the waters, such a codification would
mark another step in the never-ending effort toward evolving the
common law of mankind.
Maxwell .Cohen
Dean of the Faculty of Law
of McGill Univeraity.
CASE and COMMENT
