REGULATIONS annexed to the Boundary Treaty between Spain and Portugal of 29th September, 1864. --Signed at Lisbon, November 4, 1866.
[Ratifications exchanged at Lisbon, November 20, 1869.]
HER Majesty the Queen of the Spains and His Majesty the King of Portugal and the Algarves, wishing to make the Boundary Treaty between the two nations, concluded on the 29th of September, 1864, applicable in all its parts, so that the people of both countries may, experience the benefits which that international pact is intended to produce, have resolved to adjust the agreements and stipulations which are to serve as a complement to the said Treaty.
For that purpose they have appointed as their Plenipotentiaries,
namely,
Her Majesty the Queen of the Spains, D. Facundo Goñi, Her Minister Plenipotentiary, Royal Councillor of Agriculture, Industry, and Commerce, Ex-Deputy to the Cortes, &c.;
And His Majesty the King of Portugal and the Algarves, Sr. José da Silva Mendes Leal, of his Council, Knight of the Order of Our Lady of the Conception of Villa Vicosa, Grand Cross of the ancient, most noble, and illustrious Order of Santiago, of scientific, literary, and artistic merit, of that of St. Maurice and St. Lazarus of Italy, Honorary Minister and Secretary of State, Deputy to the Cortes, Chief Librarian, &c.
Who, after having communicated their full powers to each other, and found them in good and due form, have agreed to and drawn up the following Annexes to the Treaty.
Annex I.--Regulations concerning the Conterminous Rivers between the two Nations.
In consequence of the stipulation in Article XXVIII of the Boundary Treaty concluded at Lisbon on the 29th of September, 1864, in which it is provided that the waters, of which the course determines the international line at various tracts of the frontier, shall be used in common by the people of both kingdoms; and, moreover, in fulfillment of the provision in Article XXVI for the formation of regulations to put a stop in future to the abuses in regard to the construction of works on the banks of the rivers, and especially on those of the Minho and its islands, both because the navigation is obstructed, and public use and benefit are impeded, and because the course of the waters is changed, to the injury at the same time of private property situated on the river borders, and of the territorial sovereignty of the two States.
Considering that the separating rivers, although when by the operation of nature they suddenly and completely change their direction, yet do not alter the boundary of the nations, since this is still determined by, the ancient channel; on the contrary, when they change slowly and gradually by the work of man, produce alteration in the frontier line and injuries to the lands of private owners;
Considering, therefore, that in order to prevent the artificial diversion of the course of the rivers, as well as to make the common use thereof practicable, it is expedient to set forth and apply the recognised principles of international law in the matter;
The Plenipotentiaries of the two States, having examined in general the circumstances of the rivers which divide the two countries, and particularly the special situation of the River Minho, having before them the necessary documents and the respective plans at the part of the said river most subject to disputes; and after duly examining the reclamations on the subject presented of late years by various proprietors on both banks, have agreed to draw up the regulations recommended to them, which are of the following tenour:
ART. I, The rivers which serve for the international frontier between Spain and Portugal, on the line comprised in the Boundary Treaty of 1864, shall be used in common by the people of the two countries, though by the moiety of their currents they still belong to the two nations; and in order that the said people may avail themselves of them conveniently, as well as in order that the international boundary determined by the course of the waters may not suffer alteration, the said rivers shall be subject to the continual supervision of the authorities of the adjacent towns.
II. In virtue of the common use of the conterminous rivers which aspartame to the people of the two nations, those people may freely navigate the Minho, the Douro, and the Tagus, for the whole of their respective practicable extent, as well as the other frontier rivers where the circumstances admit of it; but they must always conform, both in regard to the navigation itself, and in regard to the traffic or trade which they carry on, to the existing compacts between the two Governments, and the special regulations in force in each country.
The inhabitants of the two territories may likewise pass from one bank to the other with all kinds of craft, and make use of the waters for all purposes that suit them, provided that in such cases they do not infringe the existing public agreements or the recognised customs amongst the people of the two banks, nor alter in the very least the conditions of the rivers in regard to their fitness for the public and common use.
III. The vessels which, in accordance with the provisions in the preceding Article, navigate or fish in the conterminous rivers, shall be subject to the jurisdiction of the country to which they belong; they cannot be prosecuted by the authorities of either State for legal offences or contraventions, except when they are attached to the mainland or the islands subject to the respective jurisdictions of those authorities. Nevertheless, in order to prevent the difficulties and abuses which might be occasioned by the erroneous application of this rule, it is agreed that every vessel that is moored to the bank, or so near that any one can go on board of it directly, shall be considered as in the territory, of the country to which the said bank belongs.
IV. As a consequence of the stipulations in the preceding Articles, and for the purpose of preserving the navigation of the rivers uninterrupted, and the use of them free, as well as of maintaining the limit appointed for their courses unalterable, it shall not be lawful to construct in the rivers or on their banks, or on those of their islands, works of any kind that may prejudice the navigation or alter the course of the waters, or damage in any manner the condition of the rivers for the common and public use. Wherefore, as a general rule, the construction is prohibited of all kinds of works, such as mills or water-mills, fixed or movable moles, dykes, fisheries, canals, palisades, or any others whatever, that may cause obstacle or injury to the public interest in the aforesaid respects.
V. If, however, any of the works mentioned above, or others of a different kind, which the private owners of either bank may wish to construct, can be executed without any prejudice to the common use and advantage of the two countries, the respective authorities may grant special permission for the purpose, in virtue of the requirements and proceedings hereinafter stated.
VI. If any subject of one of the two States should consider it necessary or useful to construct a certain work in the rivers, whether defend his property against inundations, or to benefit his interests to and improve his estate, without prejudice in any case to the public or other persons, he must, before he executes any work, solicit and obtain permission to do so. For this purpose he is to apply by means of a memorial to the chief officer of the administrative district (at present the Civil Governor of a province in Spain, and the Civil Governor of a district in Portugal) explaining his desire and the circumstances that justify it, and accompanied by a sketch of the work which he intends to construct, and a plan of the corresponding art of the river, as necessary data and such as are considered sufficient for estimating the probable results of the projected work.
The Civil Governor, after receiving reports from the Alcalde (or municipal administrator) of the town, and hearing such scientific or professional opinions as may be deemed expedient, shall decide in conformity therewith. In case the work be considered prejudicial at present or in future, to the interests of the riverain inhabitants, or to the common use of the river, the permission solicited shall be refused, If, on the contrary, the work should not be capable of inflicting public or private damage, a copy of the memorial shall be sent to the Governor of the frontier administrative department, and he after receiving in his turn the necessary reports, and acting as befits neighbours with common interests, shall send an answer stating his opinion and either granting his consent to the construction of the work, if it appear to be inoffensive for all, or refusing his consent with a statement of the reasons for which he considers it inexpedient. In the first case the Civil Governor to whom the petition was addressed, shall comply with it and send the necessary licence to the person interested; in the second case he shall refuse the permission, and in both cases the matter shall be considered as settled without further appeal.
VII. The licences for the construction of works granted by the competent authority shall expire in 6 months from the date of their issue, if within that time the grantee shall not have commenced the work.
They shall likewise expire if the works after commencement should be interrupted or suspended for the space of a year.
VIII. Contraventions of the provisions of these Regulations, whether by constructing works or otherwise perverting the conditions of the rivers, may be denounced either by private persons in legal form, or by the warders and other agents, or by the local authorities.
Without prejudice to the informations and proceedings to which the infractions or abuses committed may give rise at any time, and for the purpose of maintaining and preserving the good condition of the rivers, an examination thereof shall take place annually, in conformity with the general provision contained in Article XXV of the Boundary Treaty.
In consequence whereof, every year in the month of August the Spanish Alcaldes and the Portuguese Municipal Administrators, accompanied by municipal delegates, shall examine the fluvial part of the frontier to the extent belonging to their jurisdictional department; they shall agree upon official demarcations if there be facts on which to ground them, and they shall draw up a record of their examination, and send a copy thereof to the superior administrative authorities, in order that the latter may determine what they consider expedient within the compass of their powers.
IX. The penalties to be imposed by the administrative authorities above mentioned for infraction of the provisions of these Regulations shall be as follows:
Those who construct works in the rivers without having obtained proper permission to do so, as prescribed in the preceding Articles, shall be obliged:
1. To destroy at their own expense all the works done, and to restore everything entirely to its original state.
2. To pay a fine of not less than 10 crowns in Spanish coin (4,500 reis in Portuguese coin), nor more than 100 crowns (45,000 reis), and which shall at the same time be in proportion with the cost of the work, and with the damages which it might have occasioned according to professional estimation.
3. To pay all the expenses incurred in the proceedings and measures taken on the part of the authorities until the demolition of the work unduly executed has been completed.
The same or similar penalties will be incurred by all those who by any means not here specified, turn or alter the current of the waters, or obstruct the navigation, or deteriorate in any other way the condition of the rivers in respect to the common use thereof by the inhabitants of the frontiers of both kingdoms.
X. The provisions contained in the foregoing Articles shall be observed and fulfilled by the inhabitants and by the authorities of both States as soon as the present Regulations are declared to be in force.
Transitory Article.
In fulfillment of the stipulation in Article XXVI or the Boundary Treaty, bearing in mind the exceptional situation of the River Minho, wherein, on account of the landowners on both banks having been allowed to construct freely mills or enclosures for the defence of their property, or fisheries, or other works for their own benefit, serious alterations have been produced in the course of the river, and anomalous irregularities in its currents, to the injury of public and private interest; and desiring at the same time to improve the condition of the river for the common service and use of the two countries, and to attend as far as may be just and lawful to the interests of the owners whose lands, when the prohibition against constructing works is enforced after such long-continued toleration, might be endangered in consequence of artificial alterations, both parties have agreed to the following arrangement
So soon as these Regulations are declared to be in force, the Governments of both States will direct that the engineers of the province of Pontevédra, in Spain, and of the district of Vianna del Castello, in Portugal, shall make a joint survey of the River Minho all along the frontier, and especially at the part running between Valenca and Moncâo, where there have been most reclamations. The said engineers, in company with a competent person, nominated by common consent to settle any differences of opinion that may arise, shall, after having made the necessary examinations, draw up a report in two parts; the first to contain a description of the Minho from its month to the confluence of the River Troncoso or Barjas, specifying the obstacles which impede the navigation in the various parts, the means of removing them, and the works which they consider it necessary to construct or to demolish, both for the purpose of making the river navigable, and for regulating the course of its waters, so that the Governments may, in due time and under suitable circumstances, adopt such measures as shall be deemed expedient in the matter. The second part is to contain an account of the bordering lands endangered by artificia inclination of the river or by effect of constructions on the opposite bank, and the specification of the works which the owners may justly be allowed to perform for preservation and defence of their lands; notice is to be given to the owners that each work must be constructed within such a fixed term as may be considered necessary and expedient under the circumstances.
After the report has been made out and transmitted to the supreme Governments by the respective Civil Governors, the latter shall communicate to the owners interested the part relative to the construction of preservative works on certain lands, and in virtue thereof the said owners shall acquire the right to execute them in the form and within the term prescribed; they must, however, in all cues wherein they intend to construct a work, give notice thereof to the Civil Governor, so that he may have the same inspected and prevent any transgression or abuse.
The agreement made for the purpose, and with the transitory character expressed in this Article, neither alters nor modifies the general and permanent provisions of these Regulations, which are to rule without exception for the future.
Annex II.—Regulations for the Seizure of Cattle.
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