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Published online by Cambridge University Press: 07 July 2009
In the past few decades the quality of European rivers and lakes has deteriorated considerably as a result of the growth of population and the expansion of industrial and agricultural activities. Since pollution does not stop at State frontiers riparian States of international watercourses must cooperate in fighting it. In the course of time a number of European States have therefore agreed on treaty provisions to counteract the pollution of certain international rivers or lakes. The first of these provisions are to be found in certain fisheries agreements concluded at the end of the 19th century. Further, since the Second World War, treaties have been concluded especially for the purpose of abating pollution. However, these provisions and treaties –which have a limited geographic scope and vary in nature– have as yet not been very effective.
1. See with regard to fresh water pollution in Europe: Conference on Water Pollution Problems in Europe, held in Geneva from 22 February to 3 March 1961. Documents submitted to the Conference, Vol. I-III, U.N. Doc. ECE WATER POLL./CONF./1 et seq.. See also: Fresh Water Pollution Control in Europe, Doc. 1965 of the Consultative Assembly of the Council of Europe, (1966).
2. See e.g. Article 10 of the 1887 Fisheries Convention concluded between Switzerland, Baden and Alsace-Lorraine, which applies to the western part of Lake Constance (the so-called Lower Lake) and to the Rhine, , Confédération Suisse, Chancellerie fédérate, Recueil systématique des lois et ordonnances 1848–1947, vol. 14, p. 248Google Scholar. Also in: U.N. Doc.ST/LEG/SER.B/12 pp. 397–403.
3. See e.g. the Protocol of 8 April 1950 between France, Belgium and Luxembourg to establish a tripartite standing committee on polluted waters, 66 U.N.T.S. p. 286; the Convention of 10 November 1961 for the protection of Lake Constance against pollution, Swiss, Bundesblatt 1961, I, p. 1174Google Scholar; the two Protocols of 20 December 1961 establishing the International Commission for the Protection of the Moselle against pollution and the International Commission for the Protection of the Saar against Pollution, German, Bundesgesetzblatt 1962, II, p. 1102 and p. 1106Google Scholar; the Convention of 16 November 1962 for the protection of the waters of Lake Geneva against pollution, in: 68 R.G.D.I.P. (1964) p. 302; the Agreement of 29 April 1963 concerning the International Commission for the Protection of the Rhine against Pollution, Trb. 1963 No. 104; the Agreement of 11 October 1972 for the protection of the Swiss-Italian waters against pollution, Swiss Bundesblatt.
4. See Recommendation 555, and the Annex thereto, of the Consultative Assembly of the Council of Europe of 12 May 1969. For a discussion of the draft Convention see: Lammers, J.G., “The Activities of the Council of Europe concerning the Protection of Fresh Water against Pollution”, in: 41 Yearbook of the A.A.A. (1971) pp. 55–67Google Scholar. See also Elst, R. Vander, “Le projet de convention européenne relative à la protection des eaux douces contre la pollution” [The draft European convention for the protection of fresh water against pollution], 6 Revue belge de droit international (1970) pp. 79–86.Google Scholar
5. See para. 5 of the explanatory report referred to in note 7 infra.
6. The meetings of the ad hoc Committee were attended by delegations of governmental experts from Austria, Belgium, Federal Republic of Germany, France, Iceland, Ireland, Italy, the Netherlands, Norway, Turkey, the United Kingdom, Sweden and Switzerland. The delegations consisted of experts on the international legal, technical and political aspects of water pollution. One meeting was attended by representatives (with the status of observer) of the Commission of the European Communities.
7. The text of the draft Convention and the appendices are found in Doc. 3417 of the Consultative Assembly of the Council of Europe. An addendum to this document contains the text of a draft explanatory report on the draft Convention (hereinafter referred to as “the explanatory report”). For an opinion on the draft Convention of the Consultative Assembly see: Opinion No. 67 (1974) of the Consultative Assembly of 3 July 1974. See with regard to the draft convention also E.Diez (Chairman of the ad hoc Committee), “La convention européenne pour la protection des cours d'eau internationaux contre la pollution” [The European convention for the protection of international watercourses against pollution] in Doc. AS/COLL/Eau (74) 10 of the Council of Europe.
8. 1 September 1975.
9. The draft Convention will hereinafter be referred to as “the Convention”.
10. See further infra p. 181.
11. See also note 37 infra.
12. The German Federal Constitution restricts the competence of the Federal Government in respect of federal watercourses to the regulation of navigation and related matters, while water economy questions such as the protection of the water against pollution have been allocated to the Länder. The competence of the Länder was affirmed by the Bundesverfassungsgericht in its decision of 30 October 1962, BVerfGE 15.1.
13. One of the questions which must still be examined by the Committee of Ministers concerns the position of the European Communities in respect of the Convention
14. See infra p. 196.
15. International rules for the prevention of radioactive contamination of water, soil or air are, e.g., already found in Chapter III (Health and Security) of the Treaty setting up the European Atomic Energy Community: 298 U.N.T.S. p. 167; Trb. 1957 No. 75.
16. The Appendices I-IV have not been completed by the ad hoc Committee which drafted the Convention. At the request of the ad hoc Committee the Committee of Ministers has therefore set up a technical committee consisting of experts designated by governments of Member States of the Council of Europe to examine modifications and additions to the Appendices I-II and another committee also consisting of governmental experts which must examine all requests to include in Appendix IV derogations from the application of Appendix I.
16a. The term “material obligations” is used in this article in the sense of obligations to take measures to prevent or abate water pollution.
17. There exists no generally accepted definition of “water pollution” in international law. Article 1(d) of the Convention contains, however, the following definition for the purposes of the Convention: “water pollution means any impairment of the composition or state of water, resulting directly or indirectly from human agency, in particular to the detriment of its use for human and animal consumption, its use in industry and agriculture, the conservation of the natural environment, particularly aquatic flora and fauna”. This definition includes thermal pollution and pollution by radioactive substances.
18. See on this point also infra p. 193.
19. The concept of “international watercourse” has been defined in the Convention (Article 1(a)) as follows: “‘International watercourse’ means any watercourse, canal or lake which separates or passes through the territories of two or more States”. According to para. 30 of the explanatory report this definition also covers cases in which the boundary is situated on one of the banks of the watercourse.
20. This concept has been defined in the Convention (Article 1(b)) as follows: “‘estuary’ means the part of a watercourse between the freshwater limit and the baseline of the territorial sea”. For the definition of freshwater limit see infra note 22.
21. See for the text of Article 15, infra p. 184.
22. This concept has been defined in the Convention (Article 1(c)) as follows: “‘freshwater limit’ means the place in the watercourse where, at low tide and in a period of low freshwater flow, there is an appreciable increase in salinity due to the presence of sea water”.
23. See infra pp. 185–186.
24. See infra, pp. 179–180.
25. See in this connection also Article 15 para. 1(c) cited infra, p. 184.
26. See supra, p. 171.
27. A similar approach is e.g. found in Article 1 para. 2 of the Convention for the protection of Lake Constance against pollution, referred to in note 3, and in Article X para. 1 of the Helsinki Rules concerning the use of the waters of an international drainage basin adopted by the International Law Association in 1966. Report of the 52nd Conference of the I.L.A. (1966), pp. 494–505.
28. It is not the first time that States have agreed on technical standards for the protection of international watercourses against pollution. Such standards are already found in Annex III to the Treaty concerning the improvement of the Terneuzen and Ghent Canal, concluded between the Netherlands and Belgium on 20 June 1960,423 U.N.T.S. p. 19; Trb. 1960 No. 105; and such standards appear also in Annex I to the Agreement on Great Lakes Water Quality concluded between Canada and the U.S.A., 11 I.L.M. (1974) p. 694.
29. See infra pp. 185–186.
30. As long as there exists no international commission the quality of the water must be inventoried only a) at the request of one of the riparian States, if there is reason to assume that the quality of the water is below the minimum standards (see Appendix I) and b) in the case that derogations from the minimum standards have been authorized, in which case an inventory of the quality of the water must only be made with regard to the parameters covered by the derogation. (see Article 10 para. 1). Apart from these cases the riparian States are obliged to make an inventory of the quality of the water if an international commission has been established, for it is one of the tasks of this commission to see to it that this inventory is made, (see Article 15 para. 1(a) and (b)).
31. The apportionment problem has been recognized in the explanatory report to the Convention (paras. 41 and 62), but criteria as to how to apportion the absorptive capacity of the water arc not given.
32. See e.g. the controversy which has arisen between Switzerland and the German Land Baden-Württemberg on the apportionment of the cooling capacity of the Upper Rhine, Lammers, J.G., “International Cooperation for the Protection of the Waters of the Rhine Basin against Pollution”, in 5 N.Y.I.L. (1974) p. 89 note 93.Google Scholar
33. See infra pp. 177–178.
34. Para. 39.
35. A very good example of how a matter can drag on is the question of the stacking of the waste salts of the French potassium mines, see J.G. Lammers, op.cit. in note 32, pp. 78 et.seq., 84 et seq. 91.
36. See infra p. 190.
37. The absence of time-limits within which the measures must be taken constitutes one of the main Belgian objections to the Convention.
38. It is only with regard to international watercourses in respect of which derogations from the minimum standards have been authorized that the Convention (see Article 10 para. 2 and Article 15 para. 1(f) explicitly obliges the Contracting Parties riparian to those international watercourses to draw up a programme designed to achieve within a fixed time-limit “certain objectives.”
39. In addition to Article 5 and Appendix II, the concept of international hydrographic basin appears in the Preamble and in Article 14 para. 3.
40. Para. 42.
41. See Article 4 para. 2 cited supra, p. 172.
42. See supra, p. 173.
43. The Consultative Assembly recommended the Committee of Ministers, in its opinion referred to in note 7 supra, to exclude the possibility of derogating from all the minimum standards.
44. Para. 38.
45. Article 10.
46. As mentioned in note 16 supra, Appendix IV has not yet been completed.
47. Sec e.g. the Agreements of 23 November 1971 on the implementation of a European project on pollution. They involve “analysis of organic micropollutants in water” and “sewage sludge processing”: Trb. 1972 Nos. 87 and 88. Another example of cooperation on a broader level is the European Agreement on the Restriction of the Use of Certain Detergents in Washing and Cleaning Products: European Treaty Series No. 64; Trb. 1970 No. 38.
48. See the Opinion of the Consultative Assembly referred to in note 7 supra.
49. It may be that the tributaries of an international watercourse are themselves international watercourses. In that case it will be necessary to coordinate the activities of the international commissions. Article 14 para. 3 obliges the Contracting Parties to take care of this coordination.
50. Para. 2 of Article 12 was inserted in the Convention at the insistence of Austria, which did not want to get involved in the deliberations on the pollution of the Rhine. The pollution of Lake Constance contributes little to that of the Rhine. Para. 2 otherwise leaves intact the obligation to enter into negotiations with a view to concluding a cooperation agreement for each section of the international watercourse.
51. That an obligation to negotiate does not imply an obligation to reach an agreement has already been stated by the Permanent Court of International Justice in the case concerning Railway traffic between Lithuania and Poland (Series A/B, No. 42, 1931, p. 116).
52. In its Judgment in the North Sea Continental Shelf Cases the International Court stated, inter alia: “The parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absense of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.” The Court considered this obligation as “a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes”. (1969 I.C.J. Rep. p. 47).
53. The Convention offers, in Article 22, the possibility of settling disputes about the obligations of the Contracting Parties by arbitration, but this is not an appropriate means of settlement for the above mentioned disputes which are of a political character.
54. Article 13.
55. Article 14 para. 1.
56. See for a discussion of the tasks of the international commissions for the protection of the Rhine, the Moselle, the Saar and Lake Constance J.G. Lammers, op.cit. in note 32 supra, pp. 73–74.
57. See supra, pp. 179–180.
58. See Article 2 of the Agreement concerning the International Commission for the Protection of the Rhine against Pollution referred to in note 3 supra. Notwithstanding that the Rhine Commission faces difficulties in collecting data on the sources of pollution. See J.G. Lammers, op.cit. in-note 32 supra p. 91 note 98.
59. The Member States are otherwise according to Article 18 obliged to furnish to the international commissions of which they arc members “the necessary facilities” to fulfil their tasks. This obligation can be deemed to imply a duty to provide the required additional information.
60. See supra, p. 174.
61. Article 17 para. 1 mentions the following possible uses: (a) production of drinking water for human consumption; (b) consumption by domestic and wild animals; (c) conservation of wild life, both flora and fauna, and securing conditions in which they thrive, and the conservation of the self-purifying capacity of water; (d) fishing; (e) recreational amenities, with due regard to health and aesthetic requirements; (f) the application of freshwater directly or indirectly to land for agricultural purposes; (g) production of water for industrial purposes; (h) the need to preserve an acceptable quality of sea water.
62. As we have already noted in note 16 supra, Appendix III has still to be completed. As yet it contains only quality limits for raw water from surface sources for the production of water for human consumption.
63. Article 16 para. 1.
64. Article 16 para. 2.
65. See Article I (h) of the Agreement of 20 November 1963 amending the Revised Act of Mannheim (Trb. 1964 Nos. 83 and 169, Trb. 1967 No. 72).
66. Article 20.
67. See for a discussion of the difficult negotiations between the Member States of the Rhine Commission, J.G. Lammers op.cit in note 32, supra.
68. It may be recalled that provisions on responsibility for extraterritorial damage appeared in the draft-Convention of the Consultative Assembly. See supra p. 168.
69. In the article proposed by the Secretariat the phrase “or of other rules of public international law” was placed in brackets. See for an explanation the comment of the Secretariat on this article which was quoted infra. p. 197.
70. See on this matter also Diez, op.cit., para. 5.
71. In para. 70 of the explanatory report on the Convention we find the following comment con Article 21: “This provision thus refers firstly to general international law in order to determine the consequences of a violation of an obligation imposed by international law, whether customary or treaty law (the latter including the present Convention) relating to water pollution. Secondly, it in no way affects the validity of any obligation which might exist under general international law concerning water pollution, in particular those which are not dealt with by any of the provisions of the present Convention.”
72. See e.g. E. Jiménez de Aréchaga in Sørensen (ed.), Manual of Public International Law, p. 534.
73. See Article 11 of the Convention, discussed supra p. 173.
74. In its Judgment in the Chorzow Factory Case (P.C.I.J. Ser.A No. 17 p. 29) the Permanent Court stated: “It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation”.
75. In its decision of 11 March 1941 the tribunal stated: “ … that, under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the property or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” See Reports of International Arbitral Awards, Vol. III, p. 1965.
76. In case there is more than one upstream State (as e.g. in the case of the Rhine) it can be very difficult to establish in which country the pollution originated. The calculation of damages can moreover be complicated by the fact that the pollution is the result of discharges in more than one upstream State.
77. In the Corfu Channel Case (Merits) (I.C.J. Reports 1949 p. 18) the International Court stated that a State could not be held responsible for damage caused to other States by acts which had taken place in its territory by reason merely of the fact that those acts had taken place on its territory. Responsibility would only arise if the State knew or ought to have known of the unlawful acts. There could therefore be no question of a prima facie responsibility nor of a shift of the burden of proof. The defendant State could, however, not evade a request for information by limiting itself to a reply that it was ignorant of the circumstances of the act and of its authors. Up to a certain point that State could be bound to supply particulars of the use made by it of the means of information and inquiry at its disposal. The victim State was, moreover, entitled to have recourse to indirect evidence.
78. See, e.g., District Court of Rotterdam, 12 May 1975, Handelskwekerij G.J.Bier B. V. and De Stichting “Reinwater” v. Mines de Potasse d'Alsace S.A. In this decision the District Court of Rotterdam, giving a narrow interpretation to Article 5 of the Treaty of 27 September 1968 concerning Judicial Competence and Execution of Decisions in Civil and Commercial Matters, declared itself incompetent to entertain a claim for damages sustained by a Dutch horticultural undertaking as a result of the discharge of waste salts into the Rhine by the French Mines de Potasse d'Alsace.
79. supra p. 189.
80. In this connection we may also recall the negative reaction of the Committee of Ministers to the provisions in the draft Convention of the Consultative Assembly which imposed strict responsibility on the riparian States for damage caused in the territory of another riparian State. See supra p. 168.
81. There are already a few international agreements which provide for strict civil responsibility, or at least increased civil responsibility for damage resulting from certain inherently hazardous activities. See, inter alia, the Convention of Paris of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy (Trb. 1961 No. 2 7), revised on 28 January 1964 (Trb. 1964 No. 175), and the Supplements to that Convention (Trb. 1964, Nos 176, 178, 179); the Vienna Convention on Civil Liability for Nuclear Damage (Trb. 1964 No. 177), and the International Convention on Civil Liability for Oil Pollution, concluded at Brussels on 29 November 1969 (Trb. 1970 No. 196).
82. For a survey of the international economic aspects of the protection of the environment, see: Malmgren, Harald B., “Environmental management and the international economy”, in: Managing the Environment, International Economic Cooperation for Pollution ControlGoogle Scholar, edited by Allen V. Kneese, Sidney E. Rolfe and Joseph W. Harned (1971) pp. 52–70.
83. Opened for signature at Paris on 4 June 1974. The text of the Convention is reproduced in 13 I.L.M. (1974) p. 352. Provisions for the prevention of marine pollution from land-based sources were also adopted in the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, opened for signature on 22 March 1974; 13 I.L.M. (1974) p. 546.
84. See the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, concluded at Oslo on 15 February 1972 (Trb. 1972 No. 62); the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters, concluded on 29 December 1972 (Trb. 1973 No. 172) and the International Convention for the Prevention of Pollution from Ships adopted by the International Conference on Marine Pollution of the I.M.C.O. at London on 2 November 1973 (12, I.L.M. (1973) p. 1319).
85. Article 15.
86. See Article 16 para.(c) of the Convention of Paris.
87. See, e.g. the treaties concerning the Niger, the Senegal and Lake Chad. The text of these treaties has been reproduced in: André, J.C., “L'évolution du statut des fleuves internationaux d'Afrique Noire”, 19 Revue juridique et politique (1965) pp. 285–310.Google Scholar
88. Article 22. See also Appendix A.
89. Thus the provisions concerning the protection of the Moselle and the Saar and their tributaries (respectively Article 55 of the 1955 Convention concerning the Canalization of the Moselle concluded between France, Luxembourg and the Federal Republic of Germany and Article 8 of Annex 8 to the Treaty concerning the Settlement of the Saar question concluded at the same time between France and the Federal Republic of Germany: the German, Bundesgesetzblatt 1956, II, p. 1837 and p. 1687Google Scholar respectively) were part of a comprehensive settlement of essentially unrelated questions in which all of the States concerned made concessions. Sec Merle, M., “Le règlement de la question sarroise et la liquidation du contentreux franco-allemand”: 2 A.F.D.I. (1956) p. 192Google Scholar. Moreover, Chapter 4 of the Frontier treaty concluded on 8 April 1960 between the Netherlands and the Federal Republic of Germany (Trb. 1960 No. 68) contains a satisfactory regulation for the Netherlands regarding the use of frontier waters, which could only be obtained after not unimportant concessions had been made by West Germany. That this latter country –which finds itself in respect of most international watercourses which it has in common with the Netherlands in the upstream position– was prepared to make those concessions is explained by the fact that the frontier waters provisions were part of a general settlement of questions which had arisen out of the Second World War and the German occupation of the Netherlands. See Bijl. Hand. II 1960/61 -6250 (R214) No. 3 p. 21, and Bijl. Hand. II 1962/63 -6250 (R214) No. 9, pp. 6, 7. Reference must further be made to the fact that the Netherlands had to promise to contribute to the financing of the stacking of the waste salts of the French Mines de Potasse d'Alsace in order to reduce to some extent the salt load of the Rhine. That this promise was not made voluntarily appears clearly from the statements made by the Netherlands Minister for Foreign Affairs in the Second Chamber of the Staten-Generaal: Hand. II 1972 p. 860. See on this matter also J.C. Lammers, op.cit. in note 32 supra, pp. 78–81, 84–86 and 91.
90. According to Article 6 the provisions of Articles 3 and 4 may not be invoked against a Contracting Party to the extent that the latter is prevented, as result of water pollution having its origin in the territory of a non Contracting Party from ensuring their full application. The Contracting Party concerned must, however, endeavour to cooperate with the non-Contracting Party so as to make possible the full application of these provisions.
91. Article 24.
92. Para. 70.
93. See supra, pp. 188–189.
94. See supra, note 69.
95. Doc CM (70) 134, p. 7, of the Council of Europe.
96. Assuming that no important modifications are made in the text of the Convention or the explanatory report, and that no important developments take place on this point at the occasion of the conclusion of the Convention.