Anton Florian Zeilinger
- Rivers — State succession, international agreements — Treaties, application — Treaties, interpretation — Peace treaties
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 With a length of 2,860 km, the Danube is the second-longest river in Europe, stretching from Germany to the Black Sea. Ten States (Germany, Austria, Slovakia, Hungary, Croatia, Serbia, Romania, Bulgaria, Moldova, and Ukraine) are its immediate riparians, and up to ten more have a share of its river basin. It is thus one of the truly international watercourses, and has always played an important role in the economic development of its riparian States for whom international cooperation has always been of the utmost interest. While the focus was historically on navigational issues, other aspects have recently received increased attention.
1. Historical Development
2 Freedom of navigation (Navigation, Freedom of) as established by Art. 109 Act of the Congress of Vienna (Vienna Congress ), concerned all rivers whose navigable parts either separated or crossed the territory of at least two States and thus theoretically covered the Danube, as well. However, apart from those rivers for which a distinct regime was established, including the Rhine River and the Moselle River, the Act of the Congress of Vienna created little more than a pactum de contrahendo, pactum de negotiando and initially had few consequences for the Danube as the riparian States neglected to conclude an effective agreement.
3 This changed, however, after the Crimean War (1853–56) with the General Treaty for the Re-establishment of Peace (Paris Peace Treaty (1856)), Arts 15–19 of which introduced a novel Danube regime. Referring directly to the principles enshrined in the Act of the Congress of Vienna, this treaty established that no impediments to navigation on the Danube should be allowed, that no duties or other charges related solely to navigation could be imposed, and that police and quarantine regulations should favour navigation.
4 Of the two commissions envisioned by the treaty, the European Commission of the Danube (‘European Commission’), whose members were Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey would prove the more resilient. It was charged in general with clearing the river mouths of the Danube up to the town of Isaktcha and its specific duties included the planning and execution of all related works, as well as the levying of adequate charges on passing ships. The other commission, composed of representatives from the riparian States, would have had the duty to establish navigational rules for the upper Danube, but proved ineffective as a dispute soon broke out concerning whether these rules could bar non-riparians from exercising cabotage, in part because the Act of the Congress of Vienna was ambiguous in this respect.
5 The rights and duties of the European Commission were further elaborated and specified by treaties in 1866 (Protocol of Conference between Austria, France, Great Britain, Italy, Prussia, Russia, and Turkey sanctioning the Public Act of 2 November 1865 relative to the Navigation of the Mouths of the Danube, signed at Paris 28 March 1866, 1865–66, 114 CTS 409) and 1871 (Treaty Concerning the Revision of Some Provisions of the Paris Treaty of 30 March 1856 signed 13 March 1871, entered into force 15 May 1871 (1871) 143 CTS 99), at the Berlin Congress (1878), and by the Treaty relative to the Navigation on the Danube (signed 10 March 1883 (1883) 161 CTS 353). Its territorial authority was also extended upstream, first to Galatz in 1878 and then to Braila in 1883, although the latter extension was contested by Romania, by then a member of the Commission. The European Commission was notable in that it could operate completely independently of local authorities. Its installations and works were considered neutral (Neutralization); its legislative acts, and especially its regulations on navigation and fluvial police, were directly applicable and had the force of law. Its officials were appointed autonomously and enjoyed quasi-diplomatic immunities (Immunity, Diplomatic). Individual administrative and judicial acts, such as the collection of fees, the enforcement of navigational regulations and the levying of fines, were so far-reaching and its powers so vast that 19th century legal scholars struggled to adequately assess the Commission’s status. In hindsight it can be attested that it was one of the first international organizations with international legal personality, equipped with supranational powers (Supranational Law) comparable to those enjoyed today by the European Union.
6 In the Peace Treaties after World War I freedom of navigation on the Danube was again an issue (Treaty of Peace between the Allied and Associated Powers and Germany[‘Versailles Peace Treaty’] Arts 346–53; Treaty of Peace between the Allied and Associated Powers and Austria [‘St Germain Peace Treaty’] Arts 301–08; Treaty of Peace between the Allied and Associated Powers and Bulgaria [‘Neuilly Peace Treaty’] Arts 229–35; Treaty of Peace between the Allied and Associated Powers and Hungary [‘Trianon Peace Treaty’] Arts 285–91; ‘Neuilly Peace Treaty (1919); St Germain Peace Treaty ; Trianon Peace Treaty  and the Versailles Peace Treaty ). The Danube from Ulm downstream was declared international, and the European Commission’s power was reaffirmed, although its membership was reduced to Great Britain, France, Italy, and Romania. A new international commission, whose membership included all riparians as well as the non-riparians on the European Commission, was established for the upstream parts of the Danube although it was only entitled to take note of obstacles to navigation, to draw up plans for the improvement and regulation of navigation and to make recommendations to the individual States. These provisions provided the basis for the subsequent Convention Instituting the Definitive Statute of the Danube (‘1921 Paris Convention’), which elaborated the two commissions’ roles and repeated that navigation on the whole Danube, including cabotage, was unrestricted and open to all flags.
7 The exact limits of the European Commission’s authority remained a bone of contention between Romania and the other States; this, however, was eventually settled by the Permanent Court of International Justice (PCIJ) in 1927, which affirmed that the European Commission’s full powers extended as far as Braila (European Commission of the Danube, Jurisdiction of the [Advisory Opinion]). On 18 August 1938 Romania, France, and Great Britain signed an agreement (Arrangement relative to the Exercise of the Powers of the European Commission of the Danube, and Final Protocol [‘Agreement of Sinaia’]), by which all of the operative duties of the European Commission were transferred to Romania, ending the European Commission’s supranational activity and reducing its authority to the drafting of work plans and of navigational regulations.
2. Danube Convention of 1948
8 Soon after World War II a conference took place in Belgrade in which the Allied Powers as well as most of the riparians took part. Contrary to what was hoped it did not result in a mutually accepted solution. It ended with the representatives of the communist riparians signing the Convention concerning the Regime of Navigation on the Danube (‘Danube Convention’) on 18 August 1948, which was contested by the Western powers. Austria and Germany, both under Allied occupation, were not invited to sign the Danube Convention, although Austria did become a party in 1960 and the Federal Republic of Germany later became an observer (International Organizations or Institutions, Observer Status), effectively applying the Danube Convention’s principles, before finally joining in 1998.
9 The issue remained whether the events of World War II and the subsequent Danube Convention should be considered to have had the effect of terminating the previous regime under the 1921 Paris Convention. The communist States argued, inter alia, that a complete change of circumstances had occurred, justifying termination of the previous convention (Treaties, Fundamental Change of Circumstances). This was denied by the representatives from Western States, who maintained that the status of the Danube itself as an international river with the need for freedom of navigation had not changed at all. France, Great Britain, and Italy have continued to hold this view and even admitted a new member, Greece, to the European Commission in 1955, the seat of which was transferred to Rome. As late as 1977 these four States concluded agreements concerning the assets of the European Commission, while reaffirming its continued existence, a claim which appears still to be held in principle. Since eventually all riparians signed the Danube convention, the practical consequences of this dispute are nowadays negligible.
10 At the heart of the Danube Convention lies, once again, the freedom of navigation for nationals, vessels of commerce, and goods of all States (Art. 1 Danube Convention) with the important exception that this does not apply to traffic between ports of the same State. Thus, unlike in the 1921 Paris Convention, and also arguably unlike the regime of the Rhine river, cabotage is expressly exempted. Crucially, regulations for navigation are not uniform; rather, they are autonomously established by the relevant riparian State. The convention furthermore establishes a new commission, the Danube Commission, which is primarily an instrument for communication and cooperation among the riparians. It is composed of one representative from each member and has its seat in Budapest, decides by majority vote, draws up general plans of the principal works called for in the interest of navigation (Art. 8 Danube Convention), consults with and makes recommendations to the States regarding these works, and can carry out necessary works if the State concerned should prove unable to do so. It is furthermore charged with establishing a uniform system of traffic regulations—which has proven to be one of its most successful tasks—and has other coordinating, publishing, and consulting duties.
11 The Danube Convention applies neither to subsidiary rivers nor to artificial canals, so the canal connecting the Danube to the Black Sea which was opened in 1984 and which reduced the distance to the ocean by around 400 km is not covered, nor has the opening of the Rhine-Main-Danube Canal (see also Rhine-Main-Danube Waterway) in 1992 so far resulted in the creation of a uniform regime.
12 In 1998 a supplementary protocol to the Danube Convention (Supplementary Protocol To The Convention Concerning The Regime Of Navigation On The Danube) was signed, which admitted Germany as a member and listed the parties to the Danube Convention, thereby removing uncertainties connected with State succession (State Succession in Treaties). Membership now includes all riparian States and one non-riparian, the Russian Federation. Since 2002 a preparatory commission has been drafting a complete revision of the Danube Convention of 1948, although it is still unclear when and if such a revision will be adopted. Proposals include, inter alia, the creation of a permanent council furnished with binding decision-making power.
13 Freedom of navigation on the Danube became a major issue during the crisis in Yugoslavia in the 1990s (Yugoslavia, Dissolution of), as Yugoslavia retaliated against the general embargo imposed by UN Security Council Resolution 757 (1992) (UNSC Res 757  [30 May 1992] SCOR 47th Year 13) by restricting transit and collecting security duties from passing ships, a clear violation of Art. 42 Danube Convention. Navigation was again severely hampered as a result of the destruction of three important Danube bridges, the ruins of which fully blocked the shipping lanes of the river, during the bombing of Yugoslav territory by North Atlantic Treaty Organization (NATO) forces in 1999 in connection with the Kosovo crisis. In the Legality of Use of Force cases (Yugoslavia, Cases and Proceedings before the ICJ) Yugoslavia argued, inter alia, that the destruction of these bridges was a violation of international law regarding the freedom of shipping (see Legality of Use of Force [Yugoslavia v Germany] [Provisional Measures]  ICJ Rep 422, paras 1, 3, and 4). While the case did not reach the merits stage, it can still be argued that while customary freedom of navigation between the belligerent powers was probably suspended, the navigational rights of third States may have been violated to a certain extent, although no State actually made such a claim. The Danube Commission was later charged with the task of coordinating the removal of all navigational obstacles and initiated the International Fund for the Clearance of the Fairway of the Danube. Nonetheless, the river stretch concerned was not fully re-opened for shipping until 7 October 2005.
3. European Law Aspects
14 The Danube regime has recently seen a significant change of its overall conditions in so far as today more than ever European Union (‘EU’) law must be taken into consideration. Membership in the EU and the Danube Commission did not overlap until 1995 when, with Austria, the first party to the Danube Convention joined the EU. After Germany’s accession to the Danube Convention and the subsequent eastern enlargements of the EU in 2004, 2007 and 2013, seven out of ten riparians are EU members, with one additional riparian, Serbia, having attained the status of candidate country.
15 In its Arts 90–100, the Treaty on European Union establishes the basis for a common transport policy, and authorizes the Council of the EU and the European Parliament to lay down binding provisions for almost all issues of international transport. No uniform legislation has so far been established for all aspects of inland waterways, although significantly, Council Regulation (EEC) 3921/91 of 16 December 1991 and Council Regulation (EC) 1356/96 of 8 July 1996 opened up cabotage on all rivers in the EU to ships owned by operators resident in any Member State. An action programme adopted by the EC Commission on 17 January 2006 (Communication from the Commission on the Promotion of Inland Waterway Transport ‘NAIADES’ COM(2006) 6 final [17 January 2006]), to be revised in 2013, intends the promotion of transport on inland waterways and calls for a modernization and harmonization of current international regulations. It was deemed that EU accession to and modernization of the river commissions would be the most feasible way forward for the time being, and so the Commission of the EU is currently negotiating membership of the EU in the Danube Commission.
16 It can thus be expected that in the foreseeable future an international treaty of some sort—be it the current convention or a revised version—will be concerned with navigation on this river. However, if and when at some point the remaining riparian States should also join the EU, it is probable that navigation on the Danube would eventually be covered entirely by EU law, making an additional international framework redundant.
C. Non-navigational Water Issues
17 As navigation was historically the pre-eminent concern of riparian States, it was not until the peace treaties after World War I that water management and environmental issues (International Watercourses, Environmental Protection; Water, International Regulation of the Use of) received any significant attention. The peace treaties with Austria and Hungary obliged States to enter into agreements to safeguard interests and rights concerning trans-boundary waters (St Germain Peace Treaty Arts 309 and 310; Trianon Peace Treaty Arts 292 and 293), which was supplemented in the Trianon Peace Treaty by the creation of a permanent multilateral Hydraulic System Commission, called to bring about the conclusion, supervise and, in urgent cases, ensure the carrying out of such trans-boundary water agreements.
18 Several bilateral treaties among Danube riparians concerning the management and preservation of trans-boundary waters were signed throughout the 20th century, and a number of communist States signed a fisheries convention in 1958 (Convention Concerning Fishing in the Waters of the Danube). A non-navigational use that was of particular interest was the harnessing of hydroelectric power through joint projects like the Iron Gates power plant between Yugoslavia and Romania and the Gabčikovo-Nagymaros project between Hungary and Czechoslovakia. It should be noted that in the course of the dispute surrounding the non-completion of the latter project, the International Court of Justice (ICJ) ruled, inter alia, that the ‘provisional solution’ implemented by Czechoslovakia deprived Hungary of ‘its right to an equitable and reasonable share’ of the Danube waters (Gabčikovo-Nagymaros Case (Hungary/Slovakia) para. 85).
19 No major steps towards a multilateral approach were achieved until, on 13 December 1985, the Bucharest Declaration on the Cooperation of the Danubian Countries on Problems of the Danubian Water Management, in Particular the Protection of the Danube River against Pollution was signed by the riparian States who agreed to certain measures of preservation of resources and environmental protection of the Danube River. The ensuing cooperation eventually led to the adoption of the 1994 Danube River Protection Convention (‘DRPC’). Of the up to 20 countries that have a share of the Danube basin, 14 are currently parties to this convention, including all of the riparian States; the EU is also a signatory.
20 The DRPC codifies most of the generally recognized principles of water protection, including the precautionary and the ‘polluter-pays’ principles, and calls for both equitable use and sustainable water management. It also incorporates numerous specific duties of cooperation, mutual information, and assistance in many areas such as emission control, flood forecasts, ice hazards, general water quality, and sedimentation. Crucially, Art. 24 DRPC introduces compulsory dispute settlement procedures. It should be noted that the DRPC’s focus is almost exclusively on environmental issues and only to a small extent on quantitative water management (see Case C-36/98 Spain v Council  ECR I-779).
21 The DRPC also established the Vienna-based International Commission for the Protection of the Danube River (‘ICPDR’), which is responsible for implementing the objectives and provisions of the DRPC. Decisions are adopted primarily by consensus; they are binding on all parties that have voted in the affirmative.
D. The Danube as Boundary River
22 Like many other European rivers, the Danube has always had an important function as a natural boundary demarcating States and spheres of influence. It has been a boundary river ever since the earliest times of a ius gentium, most notably delimiting the outer reaches of the Roman Empire since the first century BCE as a sort of fluvial limes against the Germanic tribes, and in numerous later instances throughout history.
23 Currently, sections of the Danube serve as parts of nine international boundaries. Most of these are undisputed and are movable boundaries in that they follow the thalweg—the middle of the main navigation channel—of the river. On the short stretch where the Danube marks the boundary between Germany and Austria the border is immovable and delimited exclusively by geometrical reference points; fixed boundaries can also be found around the Iron Gates installations on the boundary between Serbia and Bulgaria, as well as at the point where the river forms the border of Moldova.
24 A major dispute exists between Croatia and Serbia regarding the entire length of their mutual Danubian boundary. The relevant internal boundaries of Yugoslavia had followed cadastral maps established in the 19th century, but did not take into account the fact that the river bed had since changed its course due to several regulatory measures. The cadastral boundaries thus diverged from the actual river course, a fact that posed only minor administrative problems in Yugoslav times. Croatia now maintains that according to the uti possidetis doctrine the pre-independence boundaries—ie the cadastral limits—need to be followed, while Serbia’s viewpoint is that since the border follows the Danube, the thalweg of the current river bed must be seen as the boundary line.
25 A further boundary dispute arose between Hungary and Slovakia in the area of the Gabčikovo-Nagymaros project, as it was intended to adapt the boundary after the project’s completion, and also because the provisional solution implemented by Czechoslovakia diverts up to 90% of river waters from the main navigational channel. Furthermore, the ICJ case Maritime delimitation in the Black Sea (Romania v Ukraine) had some minor connections to the Danube—the starting point of the mutual territorial sea boundary is the point where the thalweg boundary in the northernmost arm of the Danube and the territorial sea baselines across the river mouth meet. Although the territorial sea boundary was undisputed, it did have some relevance for the delimitation of the exclusive economic zone and the continental shelf.
26 The Danube has a rich history in public international law. As the major concerns of riparians and non-riparians alike have always been connected to navigational issues, numerous treaties to this effect have been concluded since the 19th century. From 1856 onwards its lower stretches near the river mouths were governed by an international authority with supranational powers, the European Commission. As this international administration was terminated in 1938, the Danube is a unique example of a ‘re-nationalized’ river. The Danube Convention of 1948, which is currently in force, is primarily an instrument of consultation and cooperation and its fate is far from certain as the enlargement of the European Union progresses. Non-navigational issues have also become more important in recent years, and since 1998 the ICPDR has been responsible for ensuring the sustainable use of water resources in the river basin. International cooperation will therefore continue to play an important role in the Danube basin.
- J Blociszewski ‘Le regime international du Danube’ (1926) 11 RdC 257–40.
- S Gorove Law and Politics of the Danube: An Interdisciplinary Study (Nijhoff The Hague 1964).
- K Zemanek Die Schiffahrtsfreiheit auf der Donau und das künftige Regime der Rhein-Main-Donau-Großschiffahrtsstraße: Eine völkerrechtliche Untersuchung (Springer Wien 1976).
- P Costa ‘Les effets de la guerre sur les traités relatifs au Danube, dans le cadre d’une étude globale du droit conventionnel du Danube’ in R Zacklin and L Caflisch (eds) The Legal Regime of International Rivers and Lakes/Le régime juridique des fleuves et des lacs internationaux (Nijhoff The Hague 1981) 203–45.
- J BruhácsLe régime international de la navigation sur le Danube (Studia Iuridica Auctoritate Universitatis Pécs Publicata Pécs 1986).
- M Sengpiel Das Recht der Freiheit der Schiffahrt auf Rhein und Donau: Eine regimerechtliche Analyse (Binnenschiffahrts-Verlag Duisburg 1998).
- A Schwabach ‘From Schweizerhalle to Baia Mare: The Continuing Failure of International Law to Protect Europe’s Rivers’ (2000) 19 VaEnvtlLJ 431–61.
- M Klemencić and C Schofield War and Peace on the Danube: The Evolution of the Croatia–Serbia Boundary (International Boundaries Research Unit Durham 2001).
- J Baldtschun Der Status der Donauschiffahrt im Falle bewaffneter Konflikte (Duncker & Humblot Berlin 2006).
- Agreement Relating to the Transfer and Distribution of the Assets of the European Commission of the Danube (signed 23 April 1977, entered into force 4 February 1981) 1286 UNTS 49.
- Arrangement relative to the Exercise of the Powers of the European Commission of the Danube, and Final Protocol (signed 18 August 1938, entered into force 13 March 1939) 196 LNTS 113.
- Bucharest Declaration on the Cooperation of the Danubian Countries on Problems of the Danubian Water Management, in Particular the Protection of the Danube River against Pollution (signed 13 December 1985) (1986/87) 37 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 429.
- Convention Concerning the Regime of Navigation on the Danube (signed 18 August 1948, entered into force 11 May 1949) 33 UNTS 181.
- Convention Concerning Fishing in the Waters of the Danube (signed 29 January 1958, entered into force 20 December 1958) 339 UNTS 23.
- Convention Instituting the Definitive Statute of the Danube (signed 23 July 1921, entered into force 30 June 1922) 26 LNTS 173.
- Convention on Cooperation for the Protection and Sustainable Use of the Danube River (signed 29 June 1994, entered into force 22 October 1994) (1996) BGBl II 874.
- Council Regulation (EC) No 1356/96 of 8 July 1996 on Common Rules Applicable to the Transport of Goods or Passengers by Inland Waterway between Member States with a View to Establishing Freedom to Provide such Transport Services  OJ L 175/7.
- Council Regulation (EEC) 3921/91 of 16 December 1991 Laying down the Conditions under which Non-Resident Carriers May Transport Goods or Passengers by Inland Waterway within a Member State  OJ L 373/1.
- Final Act Agreement and Other Acts Relating to the Establishment and Operation of the Iron Gates Water Power and Navigation System on the River Danube (Yugoslavia-Romania) (signed 30 November 1963, entered into force 16 July 1964) 512 UNTS 12.
- Final Act of the Congress of Berlin (signed 13 July 1878) (1878) 153 CTS 171.
- Gabčkovo-Nagymaros Project (Hungary/Slovakia)  ICJ Rep 7.
- General Treaty for the Re-establishment of Peace (signed 30 March 1856, entered into force 27 April 1856) (1855–56) 114 CTS 409 (Paris Peace Treaty).
- Jurisdiction of the European Commission of the Danube (Advisory Opinion) PCIJ Series B No 14.
- Supplementary Protocol to the Convention Concerning the Regime of Navigation on the Danube (signed 26 March 1998, entered into force 1 April 1999) (1999) BGBl II 579.
- Treaty of Peace between the Allied and Associated Powers and Austria (signed 10 September 1919, entered into force 16 July 1920) 112 BSP 317.
- Treaty of Peace between the Allied and Associated Powers and Bulgaria (signed 27 November 1919, entered into force 20 August 1920) (1919) 226 CTS 333.
- Treaty of Peace between the Allied and Associated Powers and Germany (signed 28 June 1919, entered into force 10 January 1920) (1919) 225 CTS 188.
- Treaty of Peace between the Allied and Associated Powers and Hungary (signed 4 June 1920, entered in force 16 July 1920) 6 LNTS 187.