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Max Planck Encyclopedia of Public International Law [MPEPIL]

Rhine River

Katrin Tiroch

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 June 2019

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.  Introduction

The Rhine River is one of Europe’s most important and characteristic international watercourses. It originates in the Swiss Alps and drains into the North Sea in the Netherlands. The Rhine crosses or constitutes a border for six States: Switzerland, Liechtenstein, Austria, Germany, France, and the Netherlands (see also Lake Constance). Additionally, Belgium, Italy, and Luxembourg have a share of its drainage basin. With a length of 1,230 km—for a long time, its length had been fixed at 1,320 km before it was established in 2010 that it was in fact 90 km shorter—and a drainage basin of about 185,000 km3; the Rhine is a mid-sized river.

Yet the Rhine constitutes a very important transport and economic axis within Europe. The river was already a central transport route in the Middle Ages (Sengpiel 16; Traffic and Transport, International Regulation). Since then, it has been used in a great variety of ways: for navigation (Navigation, Freedom of), trade, agricultural, industrial, and leisure purposes, energy production, as a dumping ground for sewage, and as a source of drinking water and food. The Rhine River passes through various important European cities; vast industrial complexes, including heavy and chemical industries, have settled along it. Duisburg, the world’s biggest inland port, and Rotterdam, the world’s biggest seaport, are located along the Rhine. The river also has a unique ecosystem and provides an essential habitat for flora and fauna (Schulte-Wülwer-Leidig and Wieriks 298–9; International Commission for the Protection of the Rhine [‘ICPR’] [2008] 3). In 2002, the Upper Rhine Valley was declared world cultural heritage by the United Nations Educational, Scientific and Cultural Organization (UNESCO).

Over time, the natural state of the Rhine has been heavily modified in order to improve man’s use of the river, for instance to protect agriculture and to facilitate navigation. Drainage and channelling works have been carried out, and dams, dikes, and locks have been built. As a result, the economy on the Rhine has boomed. However, the modifications also had other effects. The shortening of the length of the Rhine accelerated its flow velocity and cut off natural flood plains, thus creating the danger of major inundations. In the 1970s, the Rhine’s ecosystem was almost completely destroyed (International Watercourses, Environmental Protection). Since the end of the 1980s, the situation has gradually improved, a success commonly attributed to concerted measures of the Rhine riparian States in line with European measures (Nollkaemper 152–53).

B.  Navigational Use of the Rhine River

1.  Historic Development

Navigation has always been one of the most important uses of the Rhine. The river is one of the world’s most frequently navigated waterways. Historically, navigation on the Rhine was the principal subject of multilateral agreements and was influenced by various European peace treaties.

Probably the most influential peace treaty on the law of navigation on international watercourses in Europe was the Final Act of the Vienna Congress (1815) (Congress of Vienna ‘Final Act’ [9 June 1815]; ‘Final Act’). It also applied to and had great influence on the law of navigation on the Rhine. The basic principles of freedom of navigation on international watercourses were laid down in the Final Act (Arts 10817). Art. 109 Final Act established the principle of freedom of navigation for the navigable parts of all rivers that either cross or separate a contracting State. More precise rules concerning navigation on the Rhine were annexed to the Final Act (see Annex 16B to the Final Act). However, the provisions have to be understood as pactum de contrahendo, pactum de negotiando (Vec 226–27; Sengpiel 21–25). The provisions concerning the Rhine further envisaged the creation of the Central Commission for the Navigation on the Rhine (‘Central Rhine Commission’). This commission was to enforce common rules and was seen as a means of co-operation for the riparian States. In addition, it was mandated to prepare a new uniform regime for navigation on the Rhine. It met for the first time in 1816 in Mainz, Germany.

After long negotiations, all riparian States except for Switzerland signed the Convention of Mainz concerning the Navigation on the Rhine (‘Mainz Convention’) in 1831. It contained a first set of principles and regulations regarding navigation on the Rhine and stipulated a legal basis for the Central Rhine Commission (Scherner [1988] 71). However, new developments and the evolution of navigation on the Rhine—especially the multitude of decisions rendered by the Central Rhine Commission and various bilateral treaties relating to navigation and commerce between the riparian States (Treaties of Friendship, Commerce and Navigation)—soon required a revision of the Mainz Convention. In 1868, it was replaced by the Revised Convention of Mannheim for the Navigation of the Rhine (done 17 October 1868, entered into force 1 July 1869) (‘Mannheim Convention’). With some amendments, the Mannheim Convention still constitutes the basic international agreement governing navigation on the Rhine today. It declared the principle of free navigation on the river (Art. 1). However, freedom of navigation was confined to ships belonging to the Rhine navigation, ie ships allowed to sail under the flag of one of the Rhine riparian States (Art. 2; Sengpiel 28–9). In addition, it should be noted that already in 1886, the Mannheim Convention took into account that the German riparian States had acceded to the Zollverein (German Customs Union) (Perrez and Reutlinger 229).

The Versailles Peace Treaty (1919) entailed various modifications for the Rhine navigation regime established by the Treaty of Mannheim (Treaty of Peace between the Allied and Associated Powers and Germany [signed 28 June 1919, entered into force 10 January 1920]). Art. 356 Versailles Peace Treaty required equal rights and privileges for vessels of all nations. The treaty further envisaged a revision of the Mannheim Convention and included changes with regard to the Central Rhine Commission (Arts 35455 Versailles Peace Treaty). However, Dutch opposition and eventually the approach of World War II impeded any modification efforts.

The Central Rhine Commission was convoked again as early as 1945. In 1963, the Mannheim Convention was revised (Convention to Amend the Revised Convention on the Navigation of the Rhine [signed 20 November 1963, entered into force 14 April 1967]; ‘1963 Mannheim Convention’); the basic principles of navigation on the Rhine were, however, not modified. The main goal of the revision was to improve the commission’s work. In the course of the 1963 revision, Switzerland finally acceded to the Mannheim Convention (Sengpiel 44–47). Over time, some additional protocols amended the 1963 Mannheim Convention (whose consolidated version is hereinafter called ‘Revised Mannheim Convention’). Among them, Additional Protocol No 2 to the Revised Convention on Navigation on the Rhine (Zusatzprotokoll Nr. 2 zu der Revidierten Rheinschiffahrtsakte [done 17 October 1979, entered into force 1 September 1982]) is worth special mention because the Rhine riparian States abandoned the principle of free navigation for the vessels of all nations established in Art. 356 Versailles Peace Treaty. This has to be seen against the background of the Rhine-Main-Danube Waterway which at that time was expected to be opened soon, and which would establish a direct link between the Rhine River and the Danube River, thereby connecting the North Sea with the Black Sea. The Rhine riparian States feared adverse effects for trade and commerce on the Rhine through Eastern and Central European State-directed economies (Perrez and Reutlinger 230–31; Vitányi 748–49). Although the principles laid down in the Versailles Peace Treaty are still part of the regulations governing navigation on the Rhine, they are interpreted restrictively and apply to a very limited extent.

2.  Present Content and Extent of Freedom of Navigation on the Rhine

The Rhine navigation regime applies on the Rhine River from Basel to the North Sea. It includes the branches of the Rhine Leck and Waal as well as other outlets to the sea. Moreover, Art. 3 (1) Revised Mannheim Convention mentions tributaries of the Rhine located in the territory of the signatory States. The scope of application is limited to commercial transactions, ie transport of merchandise and passengers.

10  Art. 1 Revised Mannheim Convention lays down a general right of freedom of navigation for vessels of all nations on the Rhine River. However, subsequent provisions make clear that the ban of discrimination in most cases applies for riparian States only (see especially Arts 2 and 4 Revised Mannheim Convention). Three forms of traffic on the Rhine have to be distinguished: transit, cabotage, and cross-border traffic:

(1) The transit from and to a point situated outside the Rhine navigation regime is not covered by Art. 4 Revised Mannheim Convention. Hence, Art. 1 Revised Mannheim Convention is pertinent and vessels of all nations have the right of free international transit on the Rhine (Transit Passage).

(2) Cabotage is understood in a wide sense. It refers to a commercial transportation service between two points situated on the Rhine River, ie within a single Rhine riparian State and between two or more Rhine riparian States. Only vessels belonging to the Rhine navigation may carry out such transports. Other vessels may be authorized under the conditions laid down by the Central Rhine Commission (Art. 4 (1) Revised Mannheim Convention). If no authorization is granted, other vessels are excluded from navigation on the Rhine. According to Art. 2 (3) Revised Mannheim Convention, vessels belonging to the Rhine navigation are vessels having the right to sail under the flag of a riparian State (Flag of Ships). This must be confirmed by a document issued by the competent authority. Ships flying the flag of a Member State of the European Union (‘EU’) enjoy the same status (Zeichnungsprotokoll zu dem Zusatzprotokoll Nr. 2 zu der Revidierten Rheinschiffahrtsakte [done 17 October 1979, entered into force 1 September 1982] para 3).

(3) Cross-border traffic refers to navigation between a port on the Rhine and a port situated in a third State (Ports). The Central Rhine Commission is competent to regulate cross-border traffic insofar as it concerns the Rhine. The conditions for commercial transport for vessels not belonging to the Rhine navigation have to be settled by bilateral agreements after consultation of the Central Rhine Commission (Art. 4 (2) Revised Mannheim Convention; Perrez and Reutlinger 232–3).

11  Other principles of the Revised Mannheim Convention are the commitment to keep the waterway navigable, to remove physical or administrative obstacles to navigation, to ensure safety of navigation, and to protect the environment (Maritime Safety Regulations). Charges, duties, or taxes based solely on navigation on the waterway may not be levied (Art. 3 Revised Mannheim Convention).

3.  Central Commission for Navigation on the Rhine

12  The history of the Central Rhine Commission dates back to 1815. The commission is composed of representatives of each Member State, those being today Belgium, France, Germany, the Netherlands, and Switzerland; both the commission and its secretariat are located in Strasbourg. It meets twice a year; decisions are taken either unanimously or by a majority vote. In general, unanimous decisions are binding. However, within one month, a Member State can refuse the decision’s approval or can notify that it first has to obtain agreement of its legislative bodies. Majority decisions constitute recommendations unless they refer to internal affairs (Art. 46 Revised Mannheim Convention).

13  The Central Rhine Commission constitutes the central decision-making body concerning navigation on the Rhine. Its aim is to advance prosperity of navigation on the river as well as to ensure safety of navigation. It has a unique legal nature in that it not only possesses administrative and regulatory powers, but also is an optional appellate court for civil and criminal matters to which the Revised Mannheim Convention applies (‘Rhine Navigation Court’). These matters involve disputes linked to inland navigation, for example disputes resulting from collisions on the Rhine or violations of police regulations. Arts 33–40bis and 45bis–45ter Revised Mannheim Convention lay down the procedure and rules for the proceedings of the Rhine Navigation Court. The procedure has to be simple and expeditious (Art. 35). Art. 33 Revised Mannheim Convention requires the Member States to designate national courts for Rhine navigation. The parties then can choose to lodge an appeal either directly to the Rhine Navigation Court or to the competent national higher court (Art. 37). Since the entry into force of the 1963 Mannheim Convention, the Commission’s judicial function is exercised by a separate body composed of independent judges: the Chamber of Appeal of the Central Commission for the Navigation on the Rhine. Before the creation of the Chamber of Appeal, the decisions were taken by the Member States’ representatives in the General Assembly (Haak 1286–87).

14  Apart from the judicial function, the terms of reference for the Central Rhine Commission also comprise the examination of complaints from the application of the convention as well as from the enforcement of regulations and measures (Art. 45 (1) (a) Revised Mannheim Convention). The Central Rhine Commission is further responsible for proposed amendments or additions by Member States to the Revised Mannheim Convention relating to the prosperity and advancement of the Rhine (Art. 45 (1) (b) Revised Mannheim Convention; see Woehrling 345–58).

4.  European Aspects of Navigation

15  Most of the Rhine lies within the territory of EU Member States. Except for Switzerland, all Rhine riparian States are members of the EU. Therefore, membership in the EU and the Central Rhine Commission mostly overlap. Since the establishment of the EU, there have been tensions between the Rhine navigation regime and EU law. The conflict results from the fact that both legal orders claim application to the same subject matter: navigation on the Rhine. The EU Members of the Rhine riparian States have shared their competence relating to transport, which includes inland navigation, with the EU (Art. 4 (2) (g) Treaty on the Functioning of the European Union [signed 13 December 2007, entered into force 1 December 2009]; ‘TFEU’). As a result, the EU is authorized to establish binding legislation for many aspects of transport. The common policy in the field of transport is governed by Arts 90–100 TFEU. Various acts of secondary EU legislation concretize the common policy. Most notably, Council Regulation (EEC) 3921/91 of 16 December 1991 lays down the freedom to operate transports on inland waterways within the EU for non-resident carriers. Additionally, an action programme adopted in 2006 recommends integrated actions and measures to be taken for the promotion and improvement of transport on inland waterways (Communication from the Commission on the Promotion of Inland Waterway Transport ‘NAIADES’: An Integrated European Action Programme for Inland Waterway Transport COM(2006)6 final [17 January 2006]).

16  Art. 351 (1) TFEU sets out that rights and obligations arising from agreements of EU Member States with third countries concluded previous to their accession to the EU are not affected by conflicting EU regulations. Accordingly, the EU Member States must observe the older agreement with regard to Switzerland. Questions have arisen as to the moment of accession of Switzerland to the Rhine navigation regime: as already mentioned above, Switzerland officially acceded to the Mannheim Convention in 1963, years after the establishment of the European Communities; however, it had participated as an equal member within the Central Rhine Commission since 1945. It is accepted that Switzerland had achieved the status of a contracting party by custom already before the conclusion of the Treaty of Rome (Klein 134). Art. 351 (2) TFEU further postulates that EU Member States shall work towards eliminating incompatibilities. Yet the adaptation of the Revised Mannheim Convention requires unanimity and cannot be effected without the approval of Switzerland. Unilateral renunciation or termination of the Revised Mannheim Convention by invoking the clausula rebus sic stantibus are precluded as well (Klein 134–48).

17  It should be pointed out that both regimes do not have completely opposed aims (Klein 115). In addition, some forms of collaboration and pragmatic solutions between the Central Rhine Commission and the European Commission have been established. Already in 1978, there were proposals for an accession of the European (Economic) Community to the Revised Mannheim Convention. So far, this has yet to occur, but both commissions granted observer status to the respective other institution. Therefore, planned measures can be co-ordinated in advance in order to minimize contradictions and disagreement. In 2003, the conclusion of an administrative agreement between the two institutions (Agreement on Co-operation between the Central Commission for Navigation on the Rhine and the European Commission [done 3 March 2003]) enhanced the collaboration by setting up a system of information exchange and by envisaging biannual co-ordination meetings (Riedel 12). The signature of the above-mentioned Additional Protocol No. 2 to the Revised Mannheim Convention provides for another solution of the conflict of competence. Since then, ships registered in a Member State of the EU have been treated as belonging to the Rhine navigation.

C.  International Co-operation with Regard to the Management and Environmental Protection of the Rhine River

1.  Historic Development and Current Regime

18  Although some agreements regarding non-navigational issues—especially fisheries—containing provisions against the pollution of the Rhine were already concluded in the 19th century (see Convention for the Regulation of the Salmon Fishery in the Rhine [signed 30 June 1885, entered into force 7 June 1886]), it was only after World War II that the Rhine riparian States started to recognize the increasing need for river management and environmental protection (Lammers 443; Environment, International Protection). In 1950, France, Germany, Luxemburg, the Netherlands, and Switzerland informally established the International Commission for the Protection of the Rhine against Pollution (‘ICPR’; Kamminga 373). The Agreement on the International Commission for the Protection of the Rhine against Pollution ([signed 29 April 1963, entered into force 1 May 1965][‘Bern Convention’]) of 1963 gave the co-operation among the riparian States and the ICPR a legal basis. A Supplementary Agreement enabled the accession of the European Economic Community to the ICPR in 1976 (Supplementary Agreement to the 1963 Agreement on the International Commission for the Protection of the Rhine against Pollution [signed 3 December 1976, entered into force 1 February 1979]).

19  In the beginning, only slow progress was made regarding the protection of the Rhine. The 1970s and 1980s displayed a fragmented and not very successful period of attempts to regulate certain pollutants of the Rhine (Nollkaemper 151). In 1976, the riparian States managed to address two of the main types of pollution on the Rhine: chemical and chlorides pollution. Two agreements were concluded: the Agreement for the Protection of the Rhine against Chemical Pollution ([signed 3 December 1976, entered into force 1 February 1979] [‘1976 Chemical Pollution Agreement’]) and the Convention on the Protection of the Rhine against Pollution by Chlorides ([signed 3 December 1976, entered into force 5 July 1985] [‘1976 Chlorides Convention’]). The 1976 Chemical Pollution Agreement subsequently only had very limited practical importance. The 1976 Chlorides Convention aimed at reducing the disposal of waste salts into the Rhine. A potassium mine in France had been singled out as the main source for chloride pollution; hence, efforts were focused on the mine. The introduced chloride mostly affected Germany and the Netherlands (Lammers 444). The 1976 Chlorides Convention was only able to provide a minimal solution for the complex problem. Only 15 years later, further steps were agreed upon which seem to have solved the problem (Nollkaemper 155). The pragmatic solution of the Additional Protocol to the Convention on the Protection of the Rhine against Pollution by Chlorides ([concluded 25 September 1991, entered into force 1 November 1994] [‘Additional Protocol to Chlorides Convention’]) included the obligation for France to reduce the load of chloride pollution and to stop discharges and store the remaining amounts of salt if a certain chloride concentration was exceeded (Arts 1 and 2). The Netherlands, albeit a downstream State and principal pollution victim, also pledged to contribute to the solution by reducing the natural high salt concentration on the Ijsselmeer (Art. 3 Additional Protocol to Chlorides Convention). The costs were allocated between the Member States (de Villeneuve 445–48). However, the financial arrangement was not completed satisfactorily and was then submitted by the Netherlands and France for arbitration. Eventually, the Permanent Court of Arbitration (PCA) decided in 2004 in favour of the Dutch proposition of auditing of the accounts (The Netherlands v France [Award] Permanent Court of Arbitration [12 March 2004]; Boisson de Chazournes 1–15).

20  A fire in the pharmaceutical company Sandoz in Schweizerhalle near Basel, Switzerland in November 1986 resulted in a rethinking and acceleration of the environmental protection regime on the Rhine (Environmental Accidents). The fire caused a major environmental catastrophe. Highly toxic chemical substances were released and caused severe harm to the ecosystem of the Rhine. Nevertheless, the catastrophe can be seen as a wake-up call for the Rhine riparian States (Durner 8). It became clear that certain limits on the uses of the Rhine were necessary and that the overdevelopment of the Rhine had to be stopped or even reversed (Nollkaemper 151). In 1987, the Rhine Action Programme (‘RAP’) was adopted (ICPR[2000]). It constituted a non-legally binding, yet ambitious policy instrument which proved to be successful. It not only focused on protection from pollution, but also introduced a new, more comprehensive and integrated approach by aiming at the protection, rehabilitation, and sustainable use of the whole Rhine ecosystem. One result of the RAP was the Salmon 2000 Programme which focused on the salmon and other extinct migratory fish previously native to the Rhine (see ICPR [2004]). The re-naturalization of the salmon was quite successful and became the symbol of the achievement of the international co-operation to protect the Rhine. The RAP was succeeded by the Rhine 2020 Programme in 2000 (see ICPR [2001]). Among the programme’s core targets are the improvement of the Rhine ecosystem, flood prevention and protection, water quality improvement, and groundwater protection.

21  In 1999, the Member States of the ICPR and the European Community confirmed their commitment to protect the Rhine and formally stipulated their achievements by signing the Convention on the Protection of the Rhine ([signed 12 April 1999, entered into force 1 January 2003] [‘RPC’]). It replaces the Bern Convention of 1963 and the 1976 Chemical Pollution Convention and has a much broader area of application than its predecessors. It follows an integrated approach and is based on modern principles of international environmental law (see Art. 4) (Precautionary Approach/Principle, Polluter Pays, Environmental Impact Assessment). The Rhine riparian States recognized that successful water management has to be comprehensive and not only has to include aquatic but also terrestrial ecosystems (see Art. 2 RPC). Its main targets are the protection, preservation, and sustainable development of the Rhine ecosystem, the production of drinking water from the Rhine (Water, International Regulation of the Use of), the improvement of sediment equality, flood prevention and protection, and to bring relief to the North Sea (see Art. 3 RPC).

2.  Rhine Protection Commission

22  The ICPR was one of the first commissions established for the protection of an international watercourse. Its activities have been a model for other river protection commissions. Parties to the ICPR are France, Germany, Luxemburg, the Netherlands, Switzerland, and the European Commission. Austria, Belgium, and Liechtenstein have observer status. The ICPR is supported by a small secretariat based in Koblenz, Germany.

23  Central tasks of the ICPR comprise the recommendation of measures, the preparation of studies and measuring programmes, the coordination of alert and warning plans, and the evaluation of the effectiveness of actions taken (Art. 8 RPC). The Plenary Assembly decides on individual measures or programmes of measures to be taken by the Member States and communicates them in the form of recommendations (Art. 11 RPC). Working and expert groups provide for technical expertise. At irregular intervals, meetings of the Conference of Rhine Ministers take place; the ministers then decide on important political issues such as the commitments to be undertaken by the Member States and the ICPR’s tasks (Schulte-Wülwer-Leidig and Wieriks 310–11).

3.  European Aspects of Environmental Protection

24  The EU is also very active in the protection of the environment. Arts 191–93 TFEU concern the EU’s common policy in the field of environment. A great variety of secondary EU legislation has direct or indirect effects for the Rhine. The most important legislation concerning water management is the Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a Framework for Community Action in the Field of Water Policy (‘EU Water Framework Directive’). The relationship between European law on water issues relevant for the Rhine and measures adopted by the ICPR caused less difficulties compared to navigation. The European Economic Community had already become a party to the Bern Convention in 1976 (European Community and Union, Party to International Agreements). Ever since, the European Commission has participated in the work of the ICPR. The European Commission’s participation makes sure that measures of the ICPR are in line with European standards. It exercises the voting rights for the EU Member States in relation to matters within its competence (Art. 10 (3) RPC). The targets and principles of the EU Water Framework Directive are implemented by the ICPR and the Rhine 2020 Programme.

D.  Conclusion

25  The Rhine River is the most important river in Western Europe. It offers a rich history in international law and is an example of successful co-operation among riparian States. Historically, the primary focus on the Rhine has been navigation. Over the past 200 and more years, numerous treaties on navigation on the Rhine have been concluded. The Central Rhine Commission performs a vital role in administering and regulating navigation on the Rhine. Its judicial function is unique.

26  Today, pollution and modifications of its natural state are the Rhine’s biggest problems. Over the last 60 years, the riparian States have developed a regime for the river’s protection; yet the Rhine waters have only become cleaner in recent years. Nowadays, the focus is on the sustainable use of the river, continuously trying to develop all human uses without further degrading the environment. The Rhine riparian States succeeded in overcoming their conflicting interests and in establishing a model river management system. However, there is still a lot to be done in the future.

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