- Rivers — Pollution
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Historical Status
1 The Elbe River rises in the Czech Republic and flows through Germany to the North Sea. The river is 1165 km long and the German part measures 727 km. The Elbe River is navigable from Pardubice to the North Sea (940 km).
2 The Elbe is one of the navigable rivers mentioned in Art. 108 Act of the Congress of Vienna ([signed 9 June 1815] (1815) 64 CTS 454; Vienna Congress ). Under this treaty, States separated or traversed by the same navigable river engaged to regulate the navigation of that river in common instruments. The navigation of such rivers should be free and not discriminatory (Navigation, Freedom of). On this basis, Anhalt, Austria, Denmark (for Holstein and Lauenburg), Hamburg, Hanover, Mecklenburg-Schwerin, Prussia and Saxony signed the Convention relative to the Free Navigation of the Elbe on 23 June 1821. The commercial navigation of the Elbe was declared to be entirely free. All existing tolls and duties were replaced by a single Elbe toll.
3 Art. 314 Treaty of Peace between the Allied and Associated Powers and Germany ([signed 28 June 1919, entered into force 10 January 1920] 225 CTS 188) established an international commission for the Elbe with four members from Germany, two members from Czechoslovakia and one member each from Great Britain, France, Italy and Belgium (Versailles Peace Treaty ). The Act for the Navigation of the Elbe was signed by the participating States on 22 February 1922. The Act for the Navigation of the Elbe establishes the organization of the international commission and the principles for free navigation of the Elbe, the customs regime for transit, the regime for ports and the prerequisites for permits of navigation. The international commission had to consent to national regulations for navigation.
4 In a diplomatic note of 14 November 1936 the German government terminated the international regime for the Rhine River, the Danube River, the Elbe River and the Oder River (‘Deutsche Note vom 14. November 1936’ German Reichsgesetzblatt  Teil II, 361; Diplomatic Communications, Forms of). The note refers to the unequal and discriminatory treatment of Germany under this regime. In the note the German government guaranteed to the other parties that navigation on German waterways remained free for all vessels flying the flag of States which live in peace with Germany and that there would be no discrimination between German and foreign vessels. Only France and Czechoslovakia answered the note with a protest, but did not insist on the re-establishment of the international regime. Consequently, the international regime for the Elbe River ended in 1936. It was not revived by the occupying powers (Germany, Occupation after World War II).
B. The Elbe River as an Internal Frontier in Germany (1949–90)
5 The internal German frontier between the Federal Republic of Germany and the German Democratic Republic extended over 93.7 km along the Elbe River. The respective governments disagreed over the exact frontier line. As the Federal Republic of Germany could only be organized within the western zones of occupation, (Germany, Legal Status after World War II), and as the German Democratic Republic could only be established in the Soviet zone of occupation, the frontier between the German States was identical with the demarcation line. In the last days of April and the first days of May 1945, the Western Allies occupied parts of Mecklenburg. Thus, the Elbe River and both its banks were under the occupation of British and American forces.
[T]he territory of Germany (including the province of East Prussia) situated to the east of a line drawn from the point of Lübeck Bay where the frontiers of Schleswig-Holstein and Mecklenburg meet, along the western frontier of Mecklenburg to the frontier of the province of Hanover, thence along the eastern frontier of Hanover to the frontier of Brunswick (ibid)
7 The map clearly shows in red colour the demarcation line on the right bank of the Elbe. The line follows the black markings pointing out the boundary between Mecklenburg and the Prussian province of Hanover. (Maps). The map bears the initials of the plenipotentiaries of the three powers.
8 In the first days of July 1945 the western Allies withdrew their troops to the line agreed on in the EAC Protocol and occupied the western sectors of Berlin, as determined in the same agreement. For a distance of 43.4 km the right bank of the Elbe River was bordered by Amt Neuhaus, a part of the province of Hanover. Since all bridges in the area had been destroyed and it was felt that the Elbe River forms a natural boundary, the commanders-in-chief—Montgomery for Great Britain and Zhukow for the Soviet Union—agreed in Berlin on 29 June 1945, inter alia, that this area should be taken over by the Red Army (‘Participation of the United States in the Control Council for Germany: Implementation of the Potsdam Decisions on Germany’ [30 June 1945] Foreign Relations of the United States Diplomatic Papers  vol 3, 820, 822). The Control Council in Berlin agreed to this revision on 30 July 1945 on the basis of a British memorandum dated July 1945. The operative part of this document reads: ‘The transfer to the Russian zone of that part of the Regierungsbezirk Luneburg lying in the province of Hanover lying east of the river Elbe (vide Appendix B)’ (‘Minutes of First Meeting of the Control Council held in Berlin on 30 July 1945 at 1.15 pm’ Documents on British Policy Overseas  vol 1, 1192).
9 In practice the left bank of the Elbe River in the section in question was under the occupational authority of the British forces, while the right bank was under the occupational authority of the Soviet forces. The historical frontier between Hanover and Mecklenburg traverses the Elbe River several times, giving a bridgehead and some meadows on the left bank to Mecklenburg and, apart from the Neuhaus strip, some meadows on the right bank to Hanover; but the practice of the occupation forces did not take note of these circumstances. For 40.5 km, the historical boundary between Mecklenburg and Hanover runs along the middle of the river.
10 For the 43.4 km at Amt Neuhaus, the relevant documents show that legally the entire width of the river falls within the British zone. Here, the Elbe River belongs to the province of Hanover, attributed to the British zone in the EAC Protocol; the document on the cession of that part of the Regierungsbezirk Luneburg lying east of the Elbe River did not refer to a part of the river. Thus, within this section of the Elbe River the demarcation line runs along the right bank. Map A, which is part of the EAC Protocol, also shows the Elbe River in its entire width for a distance of 11.3 km downstream from the Neuhaus strip and for the section upstream from there as part of the British zone. Both banks of the river downstream from Schnackenburg were occupied by British forces during the end of May 1945 and the following month. After the withdrawal of these forces to the lines agreed upon in the EAC Protocol, the surface of the Elbe River did not become an unoccupied part of Germany. There is no indication of constituent acts by the Soviet occupational forces to occupy the waters of the Elbe downstream from Schnackenburg.
11 For these reasons the Federal Republic of Germany maintained that the Elbe River in its entire width between Lauenburg and Schnackenburg formed part of the British zone and, therefore, was falling under the territorial jurisdiction of the Federal Republic of Germany (Position der Bundesregierung zum Verlauf der Grenze zwischen der BRD und der DDR im Abschnitt zwischen Lauenburg und Schnackenburg [4 July 1985] BTDrucks 10/3615). The (West) German Federal Supreme Court stated in a criminal case on 2 February 1977 that the Elbe at a location 540.5 km from its source, within the Neuhaus strip, belongs in its entire width to the Federal Republic of Germany (BGHSt 2 ARs 26/76; see Krück ‘Deutsche Rechtsprechung in völkerrechtlichen Fragen’ (1979) 39 ZaöRV 83–125, 124). On the other hand, the German Democratic Republic claimed that the frontier runs along the middle of the thalweg—mid-channel—of the Elbe River (Sec. 2 (3) (b) Gesetz über die Staatsgrenze der Deutschen Demokratischen Republik [Grenzgesetz] [25 March 1982] Gesetzblatt der Deutschen Demokratischen Republik  Teil I, 197).
12 According to an additional protocol to the Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic of 21 December 1972 both German States agreed to set up a boundary commission. The commission’s task was to mark and document the existing boundary (Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic; United States Department of State Documents on Germany: 1944–1985 [Government Printing Office Washington DC 1985] 1215). Due to the different positions maintained with regard to the borderline, the commission was not able to reach agreement.
13 With the unification of Germany in 1990 the internal boundary vanished. (Germany, Unification of). The frontier dispute lost its object, but it still serves as a practical example for disputes about river boundaries.
C. Legal Regime for Navigation
14 The use of the Elbe River for navigation was regulated between the Czechoslovakian Socialist Republic and the German Democratic Republic by an agreement of 15 October 1954 (Abkommen zwischen der Regierung der Deutschen Demokratischen Republik und der Regierung der Tschechoslowakischen Republik über die gegenseitige Benutzung der Binnenwasserstraßen sowie von Haff und Bodden für die Schiffahrt; 4 Dokumente zur Außenpolitik der Deutschen Demokratischen Republik: Verträge und Abkommen vom 7. Oktober 1949 bis 30. Juni 1956, 308) which was replaced by the Agreement about Cooperation in the Field of Inland Navigation (Abkommen zwischen der Regierung der Deutschen Demokratischen Republik und der Regierung der Tschechoslowakischen Sozialistischen Republik über die Zusammenarbeit auf dem Gebiet der Binnenschiffahrt [signed 23 June 1972, entered into force 10 October 1972] Gesetzblatt der Deutschen Demokratischen Republik  Teil II, 718). The Federal Republic of Germany and the German Democratic Republic included inland navigation in their Treaty on Questions Relating to Traffic (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über Fragen des Verkehrs [signed 26 May 1972, entered into force 17 October 1972] German Bundesgesetzblatt  Teil II, 1450). As a consequence of the Helsinki process (Helsinki Final Act ) an agreement between the governments of the Federal Republic of Germany and the Czechoslovakian Socialist Republic was signed on 26 January 1988—entering into force on 4 May 1990, shortly before the German reunification (Agreement concerning Inland Navigation between the Federal Republic of Germany and Czechoslovakia [signed 26 January 1988, entered into force 4 May 1990] 1586 UNTS 538). Ships registered in one of the Contracting States may use the inland waterways on the principle of reciprocity, thus opening the Czechoslovakian part of the Elbe River for ships registered in the Federal Republic of Germany. Transport of cargo between the States was unrestricted, but should be shared; transit traffic was free; cabotage was reserved to national ships. The principles correspond to those employed in the agreements with the other socialist States which were concluded before the opening of the Rhine-Main-Danube Waterway in 1992.
15 With German reunification the inner German Treaty on Questions Relating to Traffic lost its object and the agreement with Czechoslovakia from 1988 became solely applicable for German/Czechoslovakian relations on inland navigation, because the former German Democratic Republic was incorporated into the territory of the Federal Republic of Germany. After the split-up of Czechoslovakia in 1993 the agreement continued to be in force between Germany and the Czech Republic.
16 Since the accession of the Czech Republic to the European Union (‘EU’) on 1 May 2004, international inland navigation has been regulated by European Community law according to Title V Treaty establishing the European Community ([signed 16 April 2003, entered into force 1 May 2004]  OJ 321E/37) on transport. Art. 4 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 L373/1) allowed in principle cabotage transport for all ships registered within a Member State, but left possibilities for restrictions in this respect up to 1 January 1995. In relation to the Czech Republic these temporary restrictions followed the agreement of 1988. Since 1995 inland navigation including cabotage has been open to all ships registered within the Member States without any discrimination. The Elbe River is not used for inland navigation by ships registered in third States, to which Council Regulation (EEC) 3921/91 would not be applicable. Between the Hamburg harbour and the North Sea the Elbe River is open for seagoing ships of all flags, but remains a national waterway under German sovereignty.
D. International Co-operation with regard to Protection of the Elbe River
17 In order to protect the Elbe River from pollution the Convention on the International Commission for the Protection of the Elbe was concluded by Germany, Czechoslovakia and the European Economic Community. It provides for setting up the International Commission for the Protection of the Elbe. According to Art. 7 (1) the International Commission shall meet at least once a year for the consideration and coordination of measures and programmes to protect the Elbe from pollution with the aim to make the water usable as drinking water and for irrigation, to achieve as natural an ecosystem as possible with a healthy diversity of species, and to reduce substantially the pollution of the North Sea originating from the Elbe area. By Council Decision (EC) 2005/884 of 2 December 2005 the Council stated that after the accession of the Czech Republic to the EU the membership of the EU in the International Commission is not necessary or justified. The Council decided that from 1 May 2004 the European Community is no longer a party to the convention.
18 A section of 18 km of the Elbe River is inscribed as Dresden Elbe Valley on the World Heritage List as a cultural landscape. This was decided by the World Heritage Committee of the United Nations Educational, Scientific and Cultural Organization (UNESCO) at its Suzhou session 2004 (UNESCO, ‘Nominations of Properties to the World Heritage List: Dresden Elbe Valley, Germany’ [28 June–7 July 2004] Decisions Adopted at the 28th Session of the World Heritage Committee 39). The committee and the list were established by the Convention for the Protection of the World Cultural and Natural Heritage ([adopted 16 November 1972, entered into force 17 December 1975] 1037 UNTS 151). The reasons for including the Dresden Elbe Valley were: that it has been a crossroads in Europe for culture, science, and technology; that it contains exceptional examples of architecture; that it is an outstanding cultural landscape and that it is an outstanding example of land use, representing an exceptional development of a major Central European city. The previously developed plan to connect the parts of Dresden lying left and right of the Elbe by an additional bridge has been further pursued, and a municipal referendum of February 2005 urged that the Waldschlößchenbrücke should be built. Acting on complaints by individuals and local non-governmental organizations the World Heritage Committee discussed the impact of the bridge on the listed area and decided, at the Vilnius session in July 2006, to inscribe it in the List of World Heritage in Danger with a view to considering delisting the property from the World Heritage List at the next session, if the bridge is built (UNESCO, ‘State of Conservation Reports of Properties Inscribed on the World Heritage List: Dresden Elbe Valley [Germany]’ [8–16 July 2006] Decisions Adopted at the 30th Session of the World Heritage Committee 112). The project was disputed before the respective administrative courts. In Bürgerentscheid ‘Waldschlößchenbrücke’ the Higher Administrative Court of Saxony decided that a possible conflict with the aims of the World Heritage Convention would not render illegal the decision to build the Waldschlößchenbrücke. The bridge is currently under construction; the World Heritage Committee has not decided to delist the Dresden Elbe Valley.
19 Another and considerable part of the river is listed as biosphere reserve Flusslandschaft Elbe under the UNESCO programme Man and Biosphere (‘MAB’). It was designated by the International Co-ordinating Council of MAB in 1979 and extended in 1997 after the reunification of Germany. It represents one of the biggest contiguous floodplain forests in Central Europe and extends to five German Länder for about 350 km from the southern border of Sachsen-Anhalt to Schleswig-Holstein.
20 The regime for the Elbe River traversing different States developed according to political changes. Freedom of navigation was guaranteed in 1821 by the Convention relative to the Free Navigation of the Elbe agreed upon between the Member States of the Deutsche Bund. After World War I the partners were Germany and Czechoslovakia, with some participation by the victorious powers. The division of Germany after World War II raised problems which became obsolete with German reunification. With the accession of the Czech Republic to the EU the treaty regime has been replaced by EU law. Except for some years after World War II the Elbe River has always been open to free navigation. This freedom is a shining example of a regime for a navigable river with several riparian States.
- D Rauschning ‘Die Grenzlinie im Verlauf der Elbe’ in J Delbrück, K Ipsen and D Rauschning (eds) Recht im Dienst des Friedens: Festschrift für Eberhard Menzel zum 65. Geburtstag am 21. Januar 1976 (Duncker and Humblot Berlin 1975) 429–49.
- R Lagoni ‘Der Hamburger Hafen, die internationale Handelsschiffahrt und das Völkerrecht’ (1988) 26 Archiv des Völkerrechts 261–365.
- M Rasched Die Elbe im Völker- und Gemeinschaftsrecht: Schifffahrt und Gewässerschutz (Lit Münster 2003).
- Acte de Navigation de l’Elbe (signed on 22 February 1922, entered into force 1 October 1923) German Reichsgesetzblatt  Teil II, 183.
- Bürgerentscheid ‘Waldschlößchenbrücke’ Sächsisches Oberverwaltungsgericht [Higher Administrative Court of Saxony] (9 March 2007) (2007) 60 Die öffentliche Verwaltung 564.
- Convention on the International Commission for the Protection of the Elbe (done 8 October 1990)  OJ L321/25.
- Convention relative to the Free Navigation of the Elbe (signed on 23 June 1821) (1821–22) 72 CTS 19.
- Council Decision (EC) 2005/884 of 2 December 2005 concerning the Effects of the Accession of the Czech Republic and the Republic of Poland to the European Union on the Participation of the European Community in the Convention on the International Commission for the Protection of the Oder and the Convention on the International Commission for the Protection of the Elbe  OJ L326/35.
- UNESCO, ‘Nominations of Properties to the World Heritage List: Dresden Elbe Valley, Germany’ (28 June–7 July 2004) Decisions Adopted at the 28th Session of the World Heritage Committee 39.
- UNESCO, ‘State of Conservation Reports of Properties Inscribed on the World Heritage List: Dresden Elbe Valley (Germany)’ (8–16 July 2006) Decisions Adopted at the 30th Session of the World Heritage Committee 112.