applicable concerning state supervision, water taxes, etc., a fact which plaintiff evidently intends to admit expressly in the reservation contained in its prayer 2, which, however, was not stated in sufficiently general terms. As to the extent, the quantitative extent of this water right, it is to be measured, as shown above, by the terms of the concessions, respectively by the water works erected and used in accordance with such concessions. A determinination in exact figures of the quantity of water, which may be used rightfully, cannot be ascertained from the above with certainty, contrary to plaintiff's contention. For both concessions of the years 1831 and 1833 describe merely the works to be erected and the new concessions of July 2, 1891, likewise speaks in its disposition only of "the changes made by reason of the new works of the water works company" in plaintiff's water works and mentions the quantity of water of 4500 liters per second, claimed by it in this action, and guaranteed to it per agreement of February 18, 1888, by the water works company of Schaffhausen, only in connection with a statement of such agreement, so that there can be no question of an express stipulation in the concession with regard to the quantity of water. It should suffice, however, to adjudge this point on principle, leaving it to the parties to reach an agreement as to the exact quantity or to have it determined in a new proceeding in conformity with expert testimony to be taken therein. Disposition 1. Prayer 1 is not considered. 2. Prayer 2 is approved in the sense that the defendant, the canton of Schaffhausen, is adjudged bound to respect plaintiff's water right on the left banks of the Rhine at Flürlingen, granted to plaintiff by the authorities of the canton of Schaffhausen, as one given in perpetuity and in extent measured by the concessions from Zurich. Legal opinion of Professor Max Huber in the Preceding Case on the Jurisdiction over Boundary Rivers By the decision of the Swiss Federal Court of November 9, 1897, it was finally established that the canton of Schaffhausen had no jurisdiction over the southern half of the Rhine at the water-falls. The court did not define the respective rights of Schaffhausen and Zurich with respect to the use of the falls. Zurich, being anxious to exploit the water The above case is translated from the first volume of the Zeitschrift für Völkerrecht und Bundesstaatsrecht (1906), pp. 275–283. power, asked Prof. Max Huber for an opinion, which, because of its general interest, was published in the Zeitschift für Völkerrecht und Bundesstaatsrecht, No. 1, pp. 29–32 and in No. 2, pp. 159–217. After a very extensive consideration of the Swiss federal law, the Swiss cantonal law and the general principles of international law. having a bearing upon this question, the author states the following conclusions: 1. The decision of the Federal Court of November 9 is unassailable and therefore also the boundary rights established by it with respect to the whole distance of the Rhine between Zurich and Schaffhausen. 2. The river is divided realiter between the two cantons by a middle line and each canton has unrestricted jurisdiction over one half. 3. As the intercantonal jurisdiction over the Rhine-falls is not defined by federal law nor by intercantonal agreements, it is to be determined in accordance with the general rules of international law for the interpretation of which the following principal sources must be considered: the decisions of the Federal Court, the practice of the cantons of Zurich and Schaffhausen with respect to the exercise of jurisdiction over the Rhine, the principles of the private law of Zurich and Schaffhausen and the practice of the federal authorities with respect to jurisdiction over the Rhine, where it forms the international boundary. 4. The writers on international law have not developed a doctrine in regard to jurisdiction over international rivers, in particular in regard to rivers which are divided in the middle. The rules must be derived from the general principles of the law of vicinage. 5. The text-writers, the practice of courts, and particularly the intercantonal and international practice agree on the whole that each riparian owner has on principle full control over one half of the river and, therefore, may grant concessions for works located exclusively on its side, but that the adjoining state has an international right of protest, which cannot be lost through conflicting private rights, against all measures which may affect its territory injuriously. Joint action, though not a joint granting of concessions is necessary in all cases where a single establishment affects both territories with respect to rights in the river both riparian states stand upon an absolute equality. 6. Co-ownership or joint ownership cannot be presumed because it conflicts with the principle of territorial sovereignty. 7. In the case of a division of the river realiter as well as in case of joint ownership or co-ownership, every use of the river which may be regarded as a normal or customary one according to the conditions existing at that time, representts a jus quaesitum on the part of the riparian states. The granting of water concessions, resp. the granting of permissions to draw water from the river for a certain distance is but a normal form of exercising jurisdiction over the river. 8. On principle, the two doctrines, (1) that of absolute territorial sovereignty, and (2) that of the right to the absolute inviolability of a territory with respect to influences from other states-which doctrines. may possibly come into collision and very often lead to collision because of the flowing nature of water-apply both to land and rivers. 9. A state can protest against such influences only as are directly or indirectly prejudicial to its rights are unlawful. 10. The riparian states are mutually bound to maintain the physical integrity of the neighboring banks, i. e., of the river banks. 11. Fishing interests as such are protected by international and federal law; in nowise could Schaffhausen, even if it had a fishing servitude under international law as to a part of Zurich's half of the Rhine, prohibit the erection of water works on the Zurich side. 12. Important interests of navigation cannot be injured by a work at the Rhine-falls, and the treaty of 1837 does not confer a right to navigation as such, but only a right to its undisturbed enjoyment by the members of both cantons, in so far as navigation is actually or legally possible. 13. Schaffhausen can ask of Zurich at most, that the Schaffhausen owners of water rights shall not be disturbed in the previous enjoyment of their water rights by any works on the Zurich side, nor that they otherwise be caused to suffer material damage. As these rights have been regulated by the interested parties already by contract, a protest by Schaffhausen based upon more ancient water rights is impossible in this case. 14. The portion of half the available power belonging to the canton of Schaffhausen and not used by it can be claimed by Zurich only if Schaffhausen does not utilize it within a reasonable time, resp. fails to utilize it for a sufficient legal reason. 15. No protest is possible on the part of private persons or in their stead by the canton of Schaffhausen by reason of any alleged interests in the maintenance of the Rhine-falls as a wonderful work of nature. 16. On the other hand, the state of Schaffhausen as such, has a legal interest in the maintenance of the Rhine-falls as a wonderful work of nature. This interest, however, has no precedence over the rights to use the river in other ways. 17. Schaffhausen can assert its right to the maintenance of the Rhine-falls as a wonderful work of nature only so far as the half of the Rhine on the Schaffhausen side is affected injuriously by water-power works on the Zurich side. A protest against a mere optical, æsthetic effect, i, e., against a change merely affecting Zurich territory will lie under no circumstances. For that reason it seems permissible to divide the river in the middle by means of a dam. 18. There are no scales for measuring the different modes of exercising sovereignty over a river and international law does not recognize a procedure analogous to that of expropriation. Each state has a right to share each mode of enjoyment equally with its neighbor. If different modes of enjoyment on the part of the two riparian states collide, each mode of enjoyment is entitled to equal protection. The sacrifice of an unimportant interest of one in favor of more important interests of another could be asked at most, if considerations of equity should demand it. In the collision of the interests of Zurich and Schaffhausen, we are concerned with, a collision of rights relating in part to the northern half of the river, in part to the southern half. As far as Schaffhausen's half is concerned only collisions caused by physical influences can be legally taken into consideration and even then only so far as they are a result of a violation of the principles of equality on the part of both riparian states. There seems to be no such collision in this case. There is likewise no collision of rights on the Zurich half of the river, since Schaffhausen possesses no rights there, inasmuch as a state can have rights outside of its territory only by virtue of a special title which is lacking here and Schaffhausen's so-called aesthetic interests cannot be deemed legal rights. In the event of the recognition of Schaffhausen's claim to the whole Rhine-falls, Schaffhausen could ask of Zurich only the same moderation in the use of the falls as it has observed itself with reference to its half of the river. 19. The drawing of water, now taking place at Neuhausen, represents no international individual jus quaesitum, which would not prohibit a further drawing of water. If, however, in view of other interests. a further drawing of water is prohibited or at most a smaller amount than that now taken by Schaffhausen, were allowed, Zurich may charge Schaffhausen, if it will not divide the river in corpore, a tax for that portion of the whole available power belonging to it by virtue of its title to one-half of the river, and in addition it could recover of Schaffhausen damages for the indirect benefit which it has lost, inasmuch as half of the power could not be used on Zurich territory. 20. The territory covering the Rhine-falls can be regarded constitutionally as national property at most in the sense of fiscal property of the confederation. 21. In case of water works whose premises cover merely the territory of a single state, only the state of their situs has jurisdiction over the applicants for concession, resp. grantees of concessions. The right to protest against such works, resp. against their effect upon the adjoining territory is always a matter concerning exclusively the respective states. in the absence of express or tacit agreement to the contrary. 22. Neither international law nor any other law applicable in any way to the determination of the question of jurisdiction over the Rhine between Zurich and Schaffhausen require the consent of one riparian. state to the works erected on the territory of the other as an absolute condition precedent; there is a right of protest only, the Federal Court deciding as to its reasonableness and extent. 23. Since the concessions granted by a state, resp. the private rights acquired under them do not conflict with the international rights of other states, the only correct mode of proceeding must be deemed to be to submit to the neighboring state the plans of all works against which protest on its part seems possible before the definite granting of the concession so as to give it an opportunity to file such protests if desired. Changes in the plan submitted must be made within a reasonable time. 24. If co-ownership with regard to the river or to the water could be assumed, the rules of law governing its use would be the same on the whole as those given where there is a division realiter. 25. The Federal Court in its jurisdiction over suits between cantons can decide all disputes resulting from a collision of sovereignty over boundary rivers. 26. The Federal Court cannot refuse to assume jurisdiction on the ground that there are no rules governing the intercantonal jurisdiction over rivers. 27. The Federal Court decides as to the validity and extent of protests and in the case of co-ownership or joint ownership it would be competent to supply a consent wrongfully withheld.3 5 Zeitschrift für Völkerrecht und Bundesstaatsrecht (1906), pp. 213-217. |