Can the British just sail right up the Mississippi?

February 18, 2008 5:52 PM

Can the British just sail right up the Mississippi?

The 1783 Treaty of Paris, in which Great Britain officially recognized the United States of America, says, in part:

The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States.

Is this still true? Can a Brit with a boat just sail up and down the Mississippi to his heart's content, without a passport or visa?

I've poked around a bit to see if I could find any subsequent treaty that nullified this article, but wasn't able to. It doesn't seem to be referred to in the Treaty of Ghent (which ended the War of 1812), the Treaty of 1818 (which made various boundary adjustments and such), or the Oregon Treaty (more boundary adjustments and such), and now I'm all out of treaties that popped into my head.

posted by Flunkie to law & government (15 comments total)

According to the Laws and Regulations for commercial traffic on the Mississippi river I would say yes.

Many international ships pass through the Port of New Orleans via the Mississippi. Just because a ship is on the river doesn't mean it is allowed to dock anywhere it wants. I've seen many boats at "general anchorage". They are anchored to one side of the river, but not close enough for the crew to swim to shore. That hasn't stopped some from trying. The river is about 180 feet deep and the currents are very strong. You can see the current causing boils in the water. Very few people that swim in the river will survive.

I worked on the river as a radio tech. We had to be cleared by the Coast Guard / Port Authority to board the vessels at general anchorage. A little crew boat would bring us out to the ship. We had to climb the dinky looking stairs that would swing and sway, hanging off the side of the ship. If you had an evil crew boat captain, he would bang the crew boat into the stairs just to freak you out. A life jacket was worn at all times.

You could travel up the Mississippi by boat, just don't plan on docking anywhere.
posted by JujuB at 6:20 PM on February 18 [1 favorite]

JujuB, thanks, but what part of that slideshow are you referring to, in regards to this?
posted by Flunkie at 6:25 PM on February 18

Pinckney's Treaty of 1795 between Spain and the US says:

...his Catholic Majesty has likewise agreed that the navigation of the said River in its whole breadth from its source to the Occean shall be free only to his Subjects, and the Citizens of the United States, unless he should extend this privilege to the Subjects of other Powers by special convention.

So Great Britain only had that right for a "forever" of 12 years.

It's also worth remembering that this was an international boundary right until the Louisiana Purchase.
posted by smackfu at 6:29 PM on February 18

Do they not have to go through any kind of customs or security check? If not, what's stopping a bunch of Loyalists still pissed about the Revolution from floating a dirty bomb into the heart of St. Louis? It just seems counterintuitive that, after all the brouhaha about securing the borders and beefing up security, we would just let any (British?) ship roll right on into the Midwest unchecked.

Of course, given the sorry state of our port security in general, this is potentially a problem anywhere...
posted by Rhaomi at 6:40 PM on February 18

Search google reader for "The Legal Regime of International Rivers and Lakes" by Ralph Zacklin page 198 mentions this, and smackfu's got it with the 1795 treaty.

I had a blast researching this. Awesome question.
posted by Science! at 6:47 PM on February 18

A research suggestion, far more modern. There are a lot of waterways in the world which are subject to traffic control, for safety reasons. Many of those are nominally "international waters", such as the English Channel, or the Strait of Gibralter. I suspect there are international treaties, likely from the 20th Century, regarding general shipping access to waterways of that kind, which grant traffic control rights to certain authorities (likely associated with specific nations) -- because someone's got to do it, and everyone has to agree on who in order to avoid collisions. (Which do no one any good.)

It seems to me that any waterway which is entirely within the national waters of a single nation would, under such treaty governance, be controlled by that nation. Thus I would expect the UK to have control over the North Channel, between Scotland and Northern Ireland. I would expect Denmark to have control over the shipping routes between the Baltic and the North Sea. I would expect Italy to have control over the Strait of Messina.

I would expect Brazil to have control over the Amazon. And I would expect the US to have control over the Mississippi via such treaties, which would be more recent than the one cited by the OP, and thus would supersede the earlier one.

But I can't think of any appropriate keywords to use while googling to try to turn up such a thing, so I can't point to anything specific. I post this in hopes that it will jog someone else's memories and they can do better.
posted by Class Goat at 7:25 PM on February 18

The Pinckney's Treaty info is interesting, but, if that's the only thing supposedly nullifying the previous agreement, and if Mr. Bean wanted to travel the Mississippi without passport or other authorization, wouldn't he have a pretty airtight legal case that the United States had no right to unilaterally dissolve the agreed-upon rights of British subjects?
posted by Flunkie at 8:03 PM on February 18

The Pinckney's Treaty info is interesting, but, if that's the only thing supposedly nullifying the previous agreement, and if Mr. Bean wanted to travel the Mississippi without passport or other authorization, wouldn't he have a pretty airtight legal case that the United States had no right to unilaterally dissolve the agreed-upon rights of British subjects?

No, I don't think that's right. The Mississippi river is clearly part of the United States (I think the term is "internal waters"), and an act of Congress can certainly abrogate a treaty to the extent it governs the domestic affairs of the United States.

Congress has enacted a variety of statutes imposing requirements on foreign person seeking to enter the United States, and I don't know the extent to which those requirements apply to the Mississippi river, but they certainly could.
posted by Mr. President Dr. Steve Elvis America at 8:13 PM on February 18

I think "supersede" is a better word than "abrogate" in my answer.
posted by Mr. President Dr. Steve Elvis America at 8:16 PM on February 18

Well, first of all, it wasn't an internal part of the United States at the time that Pinckney's Treaty was signed, so I think it doesn't make much sense to say Pinckney's Treaty was OK because the Mississippi is "internal water".

Second, ignoring that: The Cuban government has been saying for a long time (decades) that they have nullified the treaty that allows the USA to occupy Guantanamo Bay. The USA has essentially said, sorry, you don't have the right to do that unilaterally.

Guantanamo Bay is certainly internal to Cuba.
posted by Flunkie at 8:20 PM on February 18

Here's an interesting twist (which doesn't really clarify anything). See how Article 3 of the Treaty of Paris talks about US rights to fishing on the Grand Banks? Well, after the War of 1812, the British were the ones arguing that the war had terminated all treaties with the US. So this right along with the rest of the treaty was revoked. Fishing was a big deal... no one cared about the Mississippi part.

More here:

The British doctrine was, that the treaty of 1783 not being reenacted or confirmed by the treaty of Ghent, was annulled by the war of 1812. The United States, while they did not deny the general rule that a war put an end to previous treaties, insisted that that rule was not applicable to the treaty of 1783, which was a treaty of partition, and by which the rights of each party were laid down as primary and fundamental; so much of territory and incidental rights being allotted to the one and so much to the other. The entire instrument implied permanence, and hence all the fishing rights secured under it to the United States were placed upon the same foundation with their independence itself.

This dispute had to be settled by another treaty since there was no agreement by the parties. So my only conclusion is that the Mississippi issue is also still in dispute.
posted by smackfu at 8:54 PM on February 18

Poking around a little more:

Both (the previous) President Bush and President Clinton (here and here, respectively), referred to the 1786 Moroccan-American Treaty of Friendship as "the longest unbroken treaty in our history", which would apparently mean that they had some reason to believe the Treaty of Paris has been broken.

Clinton actually said "longest unbroken treaty of its kind in all history", though; not clear what "it's kind" is, nor whether the Treaty of Paris is of that kind.

And, not that this really has anything to do with my original question, but all the wacky old points of these treaties are really interesting to me, so:

If that treaty really is unbroken, then (for example) if a war ever breaks out between Morocco and some "Christian Power", and some Moroccan vessel departs from a US port, then the US will not allow any vessel from that Christian Power to depart that port for at least 24 hours.
posted by Flunkie at 8:56 PM on February 18

Well, first of all, it wasn't an internal part of the United States at the time that Pinckney's Treaty was signed, so I think it doesn't make much sense to say Pinckney's Treaty was OK because the Mississippi is "internal water".

No, the point is that it's "internal waters" now.

Second, ignoring that: The Cuban government has been saying for a long time (decades) that they have nullified the treaty that allows the USA to occupy Guantanamo Bay. The USA has essentially said, sorry, you don't have the right to do that unilaterally.

OK, I think there are two different questions here. The first is whether a UK citizen could defend himself using the Treaty of Paris if he was caught without the necessary paperwork in the Mississippi. The answer is no, because subsequent Congressional enactments have superseded the Treaty of Paris to the extent it provides British citizens with unfettered access to the Mississippi.

The second is whether the UK government would have grounds to complain if this happened. Maybe. I don't know. That wasn't the question, though.

In your example, the dispute is one of international law between the US and Cuba. In the question's example, the dispute is one of domestic law.
posted by Mr. President Dr. Steve Elvis America at 8:59 PM on February 18

In what fundamental way are you claiming that they differ, that makes one "international" while the other is "domestic"?

You're right. I really haven't been clear.

Basically, the dispute between Cuba and the US is between the two countries themselves. It regards rights of the United States, not rights of any particular US citizen.

On the other hand, the dispute between the Brit in the boat and the US is between an individual found within the US and the US. The treaty might very well govern, since treaties are laws like any other, but the Treaty of Paris wasn't ratified by 2/3 of the Senate (of course), so it's on equal footing with normal Congressional enactments. Consequently, it can be superseded by statute.

I'm pretty sure the bit about sailing on the Mississippi actually has been superseded by subsequent laws governing who can and can't sail up the US's rivers.
posted by Mr. President Dr. Steve Elvis America at 9:37 PM on February 18

An interesting sidebar is that the Jay Treaty of 1794 affirmed this right thus:

The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties; And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.

Unlike the Treaty of Paris, however, the Jay Treaty still has some legal force, as evidenced by litigation involving the free movement of Native American/First Nations peoples over the US-Canada border.

The 1911 Britannica, though, explicitly addresses the question:
By the treaty of Versailles, 1783, it was provided that "the navigation of the Mississippi shall for ever remain free and open to the subjects of Great Britain and the citizens of the United States." But the United States afterwards acquired Louisiana and Florida; and, the stipulation as to British subjects not being renewed in the treaty of Ghent, 1814, the United States maintains that the right of navigating the Mississippi is vested exclusively in its citizens.

Ah, here's something close to the horse's mouth:

John Quincy Adams analyzed the question at length in The Duplicate Letters, an 1822 textual archaeology of certain hand-copied documents in the possession of the Department of State. First, he notes that the treaty was aimed as much at Spain as anyone, daring her to block American access to the river (which of course let out to the Gulf through Louisiana), with a warning that Britain would be equally upset. (in fact, Spain did block access in 1784 for a time.) Up until the War of 1812, Adams notes, there were certain open questions such as whether the acquisition of Louisiana Territory obligated the US to maintain the access as inheritor of Spain's role. Adams believes that under Ghent the British implicitly agreed that the Mississippi was under United States jurisdiction. According to this account, the British repeatedly proposed articles for the Treaty of Ghent that would have reiterated the right of navigation, and the US repeatedly refused these (there were other issues such as where the boundaries were). Ultimately the US put the blunt question to the British that if the latter insisted the 1783 treaty had been de facto abrogated by the war, they could then assert no right of navigation of the river. Either the new treaty would stipulate both these provisions explicitly, or neither:

There was certainly an inconsistency on the part of the British government, in claiming a right to navigate the Mississippi, while asserting that the treaty of 1783 was abrogated by the war : and when pressed by us to say on what principle they claimed it without offering for it an equivalent, they said the equivalent was, their acceptance of the 49th parallel of latitude for the northwestern boundary, instead of the line, to which they were entitled by the treaty of 1783, to the Mississippi. As they gave up the line to the river, they said they had a right to reserve its navigation, and access to it for that purpose. They had said the same thing to Messrs. Monroe and Pinkney in 1807 ; and the principle had been assented to by them, with the subsequent sanction of President Jefferson.

Still the whole argument leaned upon the continuing validity of the treaty of 1783 : for the boundary line, as well as the Mississippi navigation, was null and void, if that treaty was abrogated. We replied to them, that, although we were willing to agree to the 49th parallel of latitude for the boundary, and thought it of mutual interest that the line should be fixed, we were yet not tenacious of it; we could not agree to their article of mutual surrender, with a pledge of future negotiation ; but we would consent to omit the boundary article itself, arid leave the whole subject for future adjustment.

And to this they finally agreed.

He goes on to make two interesting points:
The British government still insisted that the treaty of 1783 was abrogated by the war ; but when called upon to show, why then they treated the United States as an independent nation, and why in the treaty of Ghent they had agreed to four several commissions to ascertain the boundaries, "according to the true intent and meaning of that same treaty of 1783," they finally answered, that they considered our Independence, and the boundaries, as existing facts, like those of other nations, without reference to their origin....

They considered the whole treaty of 1783 as a British grant. We considered it a British acknowledgement.
posted by dhartung at 11:52 PM on February 18 [2 favorites]