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International cooperation for the protection of the waters of the Rhine basin against pollution*

Published online by Cambridge University Press:  07 July 2009

Johan G. Lammers
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During the last century the use of water in Western Europe has increased enormously as the result of the growth of the population and the expansion of industrial and agricultural activities. At the same time and for the same reason the quality of the available fresh water resources has also rapidly deteriorated. The river Rhine in particular, once so often praised for its beauty, is nowadays, especially in its downstream sections, little more than an open sewer. This river has become seriously polluted with organic substances, chloride, heavy metals and other chemical pollutants. In recent years moreover a new form of pollution has made its appearance, namely the heating of the water through the discharge of cooling water by (nuclear) power stations. The heavy pollution of the Rhine not only affects the ecological balance but also other interests, such as the supply of drinking water, the use of the water for industrial purposes, agriculture, horticulture and recreation.

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Articles
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Netherlands Yearbook of International Law , Volume 5 , December 1974 , pp. 59 - 110
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Copyright © T.M.C. Asser Press 1974

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References

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, publication of the Council of Europe, 1966.

2. Pollution with organic substances causes a decrease of the oxygen percentage.

3. In 1970 an average of 30,000,000 kg per day was carried by the Rhine.

4. These heavy metals adversely affect the growth and metabolism of the river organisms and some of the metals – especially mercury and cadmium – are even toxic for human beings. See for the seriousness of the situation the data mentioned in the resolution of the 1971 Conference of the Internationale Arbeitsgemeinschaft der Wasserwerke im Rheineinzugsgebiet (IAWR). See Bericht über die 2. Arbeitstagung vom 27–20 Oktober, 1971 in Rotterdam [Report of the Second Conference, 27–29 October 1971 in Rotterdam]. IAWR is an international association of 50 water supply agencies in the Rhine basin.

5. See with regard to the pollution of the Rhine: Water Pollution Problems on the Rhine River, Lectures delivered in the Course of the Rhine Seminar on Water Pollution Problems Basle-Rotterdam (30 September - 10 October 1962), U.N. Doc. ECE WATER POLL./Sem. 5; Die Verunreinigung des Rheins und seiner wichtigsten Nebenflüsse in der Bundesrepublik Deutschland, Denkschrift der Arbeitsgemeinschaft der Länder zur Reinhaltung des Rheins, 1965 [The pollution of the Rhine and its most important Tributaries in the German Federal Republic, Report of the Workgroup of the Länder for the Protection of the Rhine against Pollution, 1965]. This Report will hereafter be cited as Denkschrift ALRR, 1965; Lambert, J., “The Rhine: Europe's mainline sewer”, Vision (1971), 15 October, pp. 32–36Google Scholar; Kleijn, H.F.W., “De chemie van de Rijn van bron tot monding” [The chemical composition of the Rhine from source to mouth], Chemisch Weekblad (1970), 17 aprilGoogle Scholar; van der Veen, C., “Wie steht es heute um den Rhein?” [How is the Rhine to-day?], lecture held at a symposium organized by the European Federation for Water Protection (Föderation Europäischer Gewässerschutz), 16–18 October 1972Google Scholar, Zürich; Jaarverslagen van de Rijncommissie Waterleidingbedrijven (RIWA) [Annual Reports of the Rhine commission established by 6 Netherlands Water Supply Agencies]; Rousseau, Ch., “Chronique des faits internationaux”, 74 R.G.D.I.P. (1970) p. 439Google Scholar, 75 R.G.D.I.P. (1971) p. 1086, 76 R.G.D.I.P. (1972) pp. 477, 803–808.

6. See. Denkschrift ALRR 1965, pp. 16–17.

7. See with regard to the pollution of Lake Constance the Swiss, Bundesblatt 1961, I, pp. 1168–1170Google Scholar and the literature mentioned in note 105.

8. E.g. Art. 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. By note of 31 July 1920, France declared that it was willing to continue to apply this convention in fact until the conclusion of new agreements between Switzerland and France concerning fishing in the Rhine. See Feuille Fédérate de la Confédération Suisse, 1920, IV, p. 378Google Scholar. Also Art 12 of the 1893 Fisheries Convention concluded between Austria-Hungary, Baden, Bavaria, Switzerland, Liechtenstein and Württemberg, which applies to the Upper Lake, including the Ueberlingen Lake, of Lake Constance, Confédération suisse. Chancellerie fédérate, Recueil systématique des lols et ordonnances 1848–1947, Vol. 14, p. 212Google Scholar. Also in U.N.Doc. ST/LEG/SER.B/12, pp. 403, 407. Further Art. 2 para. 10 of the 1892 Fisheries Convention concluded between Prussia and Luxembourg, which applies to the frontier sections of the Moselle, the Our and the Sauer, , De Martens, Nouveau Receuit Général de Traités, 2nd series, vol. XXIV, 1899, p. 153Google Scholar. Also in U.N. Doc. ST/LEG/SER.B/12, pp. 716–721. All three Conventions are still in force.

9. Art. 44 of the Treaty. See 75 L.N.T.S. p. 104. Also U.N. Doc. ST/LEG/SER.B/12, pp. 657–658.

10. Luxembourg is not a riparian State of the Rhine, but of the Moselle, the pollution of which contributes to that of the Rhine. This does, however, not imply that the territorial competence of the Rhine Commission also extends to the Moselle. See infra, p. 75.

11. This Commission will herafter be indicated as Rhine Commission. See with regard to the establishment of the Commission Feuille Fédérate de la Confédération Suisse, 1963, II, pp. 1498–1499.Google Scholar

12. See infra, p. 76 et seq.

13. See van Santen, C.W., “Het internationale recht en de problemen van de Rijn” [International law and the problems of the Rhine] in: “Technische Hogeschool, Dertiende Vakantiecursus in Drink watervoorziening, januari 1961”, The Hague, 1961, p. 138.Google Scholar

14. See Feuille Fédérale de la Confédération Suisse, 1963, II, pp. 1504–1505Google Scholar and Bijl.Hand. II 1963/64 - 7484 No. 1.

15. This agreement will hereinafter be referred to as the Rhine Convention. It entered into force on 1 May 1965. See for the text of the Convention and the Protocol on Signature Feuille Fédérale de la Confédération Suisse, 1963, II, pp. 1510–1515Google Scholar; Trb. 1963 No. 104. For an English translation see Fresh Water Pollution Control in Europe, Council of Europe, 1966, pp. 183–189.Google Scholar

16. For the sake of completeness mention may be made of two treaty provisions of a rather specific nature aiming at maintaining the water quality in certain parts of the Sauer and the Our. Article 6 para 2 of the Treaty concerning the construction of a hydro-electric power plant on the Sauer at Rosport/Ralingen, concluded in 1950 between Luxembourg and the German Land Rhine-land Palatinate (Mémorial du Grand-Duché de Luxembourg, No. 46, 24 July 1953; English text in U.N. Doc. ST/LEG/SER.B/12 pp. 721/726) provides that in the event of unsanitary or other undesirable conditions arising in the tail-water of the dam, Luxembourg shall supply such larger quantities of water as are required for the purpose of scouring. It is not entirely clear whether the anticipated undesirable conditions in the tail-water of the dam will be only due to the construction of the dam or (also) to the fact that pollutants are discharged in the water above the dam. In 1958 another agreement was signed between the two countries (Mémorial du Grand-Duché de Luxembourg, No. 25, 11 June 1959; English text in U.N.Doc. ST/LEG/SER.B/12, pp. 726–735). This time it concerned the construction of hydro-electric power installations on the Our. Article 2 of this agreement inter alia provides that the water above the installations may not be polluted or chemically contaminated in a manner detrimental to the operation of the plants.

17. See with regard to these Luxembourg Agreements, Merle, M., “Le règlement de la question sarroise et la liquidation du contentieux franco-allemand” [The settlement of the Saar question and the termination of the Franco-German dispute] 2 Annuaire français de droit international (1956) pp. 181–205.CrossRefGoogle Scholar

18. See the German, Bundesgesetzblatt 1956, II, pp. 1838, 1853.Google Scholar

19. See the German, Bundesgesetzblatt 1956, II, pp. 1687, 1688.Google Scholar

20. The two Protocols, which entered into force on 1 July 1962 and which will hereafter be referred to as the Moselle Protocol and the Saar Protocol, were published in the German, Bundesgezetsblatt 1962, II, p. 1102 and p. 1106Google Scholar. The Commissions will hereafter be referred to as the Moselle Commission and the Saar Commission.

21. This Commission will hereinafter be referred to as the Commission for Lake Constance. See with respect to the establishment of the Comission the Swiss, Bundesblatt 1961, I pp. 1165–1168.Google Scholar

22. The Convention, which will hereinafter be referred to as the Convention on Lake Constance, entered into force on 10 November 1961. The text of the Convention can be found in the Swiss, Bundesblatt 1961, I, pp. 1174–1177Google Scholar. For an English translation see Fresh Water Pollution Control in Europe, Council of Europe, 1966, pp. 191–194.

23. Art. 2 para 1 of the Moselle Protocol and Art. 2 para 1 of the Saar Protocol.

24. See with regard to these Conventions supra, note 8. See also Art. 8 para.1 of the Convention on Lake Constance.

25. Art. 1 para 2.

26. Ibidem.

27. K.Kübler, “Aufgaben, Organisation und Tätigkeit der Internationalen Gewässerschutzkommission für den Bodensee” [Tasks, Organisation and Activities of the International Commission for the Protection of Lake Constance against Pollution], in: Water Pollution Problems on the Rhine River, mentioned in note 5, p. 41.

28. See Art. 1 para 3 of the Convention on Lake Constance.

29. See supra, p. 66.

30. See supra n. 8.

31. See Diez, E., “Die Gewässerschutzabkommen für Rhein, Bodensee und Genfersee”, in Wasser-bedrohtes Lebenselement ed. by Walther, K.A., Zürich.Google Scholar

32. Art. 3 para 1 of the Rhine Convention; Art. 3 paras 1 and 2 of the Moselle Protocol; Art. 3 paras 1 and 2 of the Saar Protocol.

33. The competence of the Länder was affirmed by the Bundesverfassungsgericht in its decision of 30 October 1962, BVerfGE 15.1. The Länder, united in the Arbeitsgemeinschaft der Länder zur Reinhaltung des Rheins, and the Federal Government now cooperate within the framework of the Deutsche Kommission zur Reinhaltung des Rheins. In this commission the Federal Government and the Länder reach agreement on the instructions for the German delegation in the Rhine Commission. See Denkschrift ALRR 1965, p. 19.

34. Art. 1 para 2. Since the financial consequences of measures to be taken for the protection of the Lake will in first instance have to be borne by the Cantons of St. Gallen and Thurgau, the Federal Government has agreed with the Cantons that before expressing a vote in the Commission, the chairman of the Swiss delegation shall first obtain the approval of the Canton(s) which will in concreto be affected by the decision of the Commission. See the Swiss, Bundesblatt 1961, I, p. 1171.Google Scholar

35. Art. 3 para 3 of the Convention on Lake Constance.

36. See 16 Official Journal of the European Communities (1973) No. C 112, p. 28.

37. Art. 3 para 2 of the Rhine Convention; Art.3 para 3 of the Moselle Protocol; Art. 3 para 3 of the Saar Protocol; Art. 3 para 4 of the Convention on Lake Constance.

38. The right to establish working-parties has been explicitly granted in Art. 7 of the Rhine Convention; Art. 8 of the Moselle Protocol; and Art. 8 of the Saar Protocol. E.g. The Rhine Commission decided in July 1950 to set up a permanent working-party for regular investigation of the physical-chemical condition of the Rhine water. In order to intensify the activities of the Rhine Commission several new working-parties with special research tasks were established in the spring of 1960. Working-party A was to study the effect of the high salinity of the Rhine water on agriculture. Working-party B was to investigate the effect of the pollution on the supply of drinking water, hygiene and public health. The study of hydrological questions and water management, with particular reference to the salinity problem in the Netherlands, was assigned to working-party C. Working-party D was to investigate technical measures to restrict the salinity of the Rhine, while the study of economic and financial questions was assigned to working-party E. Finally, working-party F was established in order to prepare the 1963 Rhine Convention. In November 1969 the Rhine Commission decided to set up two new working-parties. Working-party R was directed to prepare a report in view of the eventual conclusion of an international agreement concerning radio-active pollution of the Rhine. The technical ground-work for an eventual agreement concerning the discharge of cooling-water in the Rhine was assigned to working-party T. Working-party F, which had been dissolved after it had prepared the text of the 1963 Rhine Convention, was later reestablished in order to draft an agreement concerning the reduction of the salinity of the Rhine (See the Tätigkeitsberichte of the Rhine Commission 1965, pp. 4–5, and 1969, pp. 6, 12–13. These annual reports of the Rhine Commission will hereafter be indicated as Tatigkeitsbericht (e) RC)

39. Art. 8 of the Rhine Convention and the Protocol on Signature ad Art. 8.

40. See Feuille Fédérale de la Confédération Suisse, 1963, II, p. 1505, 1506Google Scholar; and Wolfrom, M., “La pollution des eaux du Rhine” [The pollution of the waters of the Rhine], 10 Annuaire français de droit international (1964), p. 743.CrossRefGoogle Scholar

41. Art. 5 paras 1 and 2 of the Rhine Convention.

42. See Tätigkeitsbericht RC, 1969, p. 7Google Scholar. The endosulfan incident brought to light that the warning-system which had been set up by Germany and the Netherlands did not function properly. At the Maastricht session of the Commission France and Switzerland were requested to participate in the (improved) warning-system. See Verhandlungen des Deutschen Bundestages, 6th election period, 28th session of 30 January 1970, p. 1235.

43. Art. 5 paras 1 and 2 of the Moselle Protocol; Art.5 paras 1 and 2 of the Saar Protocol.

44. Art. 2 para 1 of the Internal Rules of the Commission for Lake Constance.

45. Art. 6 para 2 of the Rhine Convention; Art. 7 of the Moselle Protocol; Art.7 of the Saar Protocol; Art. 5 para 1 of the Convention on Lake Constance.

46. Art. 5 para 2 of the Convention on Lake Constance. While the pollution of the Upper Lake can affect the quality of the water of the Lower Lake, the pollution of the Lower Lake cannot affect the quality of the water of the Upper Lake.

47. Art. 6 para 3 of the Rhine Convention; Art. 5 para 2 of the Convention on Lake Constance.

48. During the negotiations for the Convention on Lake Constance Switzerland and the two German Länder proposed to confer on the Commission the right to take binding decisions but Austria did not want to go that far. See the Swiss, Bundesblatt 1961, I, p. 1171.Google Scholar

49. Art. 6 para 1 of the Convention on Lake Constance.

50. See infra, note 79.

51. These investigations must as a rule be carried out by the competent national bodies of the member States. See the Protocol on Signature to the Rhine Convention ad Art. 2 para 1 (a).

52. Art. 2 of the Moselle Protocol; Art. 2 of the Saar Protocol.

53. Art. 4 of the Convention on Lake Constance.

54. Ad.Art. 10.

55. Art. 9 of the Moselle Protocol; Art. 9 of the Saar Protocol; Art. 8 of the Convention on Lake Constance.

56. It is interesting that the communiqués of the Conferences of Ministers of the Member States of the Rhine Commission sometimes refer to the Rhine basin instead of the Rhine. Moreover, the conventions regarding the pollution by chloride and chemical substances which are now prepared by the Rhine Commission deal with the discharge of those substances to the Rhine basin and not merely to the Rhine. It is possible that the Rhine Commission is now taking, for certain purposes at least, a somewhat broader view than before as to its territorial competence.

57. Art. 12 of the Rhine Convention; Art. 10 of the Moselle Protocol; Art 10 of the Saar Protocol; Art. 7 of the Convention on Lake Constance.

58. Ad Art. 12 para 2.

59. The places where water samples are taken have been indicated on the map reproduced on p. 62.

60. See Tätigkeitsbericht RC, 1965, pp. 8–10.Google Scholar

61. See NRC Handelsblad of 9 June 1971, p. 3.Google Scholar

62. The discharge of phosphorus and nitrogen compounds in particular may give riso to an excessive growth of algae. When these algae die off, their degradation by oxygen consuming organisms may completely upset the oxygen economy of the water which will be catastrophic for the fish. This process is called eutrophication.

63. See NRC Handelsblad of 25 November 1971, p. 2.Google Scholar

64. The figures for the years 1875, 1900, 1925 and 1950 were provided by the municipal water supply agency of Amsterdam. Those of 1960 and 1970 have been taken from the Tableaux num-eriques des analyses physico-chémiques des eaux du Rhin ainsi que de la Moselle/Coblence [Numerical tables of the physical-chemical analyses of the water of the Rhine and the Moselle/ Coblenz] of the Rhine Commission.

65. These data were cited by Maas Geesteranus, G.W., “De strijd tegen grensoverschrijdende waterverontreiniging” [The fight against frontier-transgressing water pollution], in Volkenrechtelijke aspecten van de waterverontreiniging [International Aspects of water pollution], Deventer: Kluwer, 1972 [report presented at the 1972 annual meeting of the Netherlands International Law Association and published in the Mededelingen (Proceedings) of the Association No. 65] p. 94, n.1.Google Scholar

66. See with regard to these mines Delacôte, M., “Historique des Mines Domaniales de Potasse d'Alsace” [History of the Domanial Potassium in the Alsace], in: Water Pollution Problems on the Rhine River, mentioned in note 5, pp. 192–193.Google Scholar

67. See Hopmans, J.J., “The Importance of the River Rhine for the Water Economy of the Netherlands”, in: Water Pollution Problems on the Rhine River, mentioned in note 5, pp. 154–167.Google Scholar

68. For financial estimates of the damage suffered by the Netherlands water supply agencies and horticulture see: “Waterverontreiniging ten gevolge van verzilting 1950–1970 [Water pollution as a result of salination 1950–1970], report published by the (Netherlands) Central Statistics Office and edited by the Staatsuitgeverij, 1973.

69. Arrête du Préfet du Haut-Rhin of 12 September 1955. See M.Wolfrom, op.cit. p.741.

70. See supra, note 38.

71. See Tätigkeitsbericht RC, 1965, p. 13.Google Scholar

72. See with regard to the experimental stack ibidem, 1965, pp. 13–14; 1966, pp. 2–4; 1967, pp. 10–11, 1969, pp. 14–16.

73. Ibidem, 1969, pp. 8, 17.

74. Ibidem, 1968, pp. 7–9; 1969, pp. 6–7, 10; 1970, pp. 9, 16–19; 1971, p. 11.

75. See, for the results of these studies, Tätigkeitsbericht RC, 1970 pp. 13–16.Google Scholar

76. Ibidem, p. 5.

77. Ibidem, 1971, pp. 9–10. See on the Basle session also NRC Handelsblad of 20 November 1971, p. 3; 23 November 1971 p. 1; 25 November 1971, pp. 1, 2.

78. See Tätigkeitsbericht RC, 1969, p. 3.Google Scholar

79. Ibidem, 1971, p. 14. The German delegation, which had proposed the recommendation, took the unusual step of declaring that it considered the recommendation binding where Germany was concerned. See NRC Handelsblad of 30 January 1971, p. 1.Google Scholar

80. See Tätigkeitsbericht RC, 1971, pp. 14–15.Google Scholar

81. See NRC Handelsblad of 14 July 1972, p. 1Google Scholar. The French decision also seemed motivated by the fact that in the past Germany had already built a number of power plants without alternative cooling-installations, while the Fessenheim plant was the first one to be built on the French bank of the Rhine. See NRC Handelsblad of 19 September 1972.

82. See Tätigkeitsbericht RC, 1970, pp. 10–11Google Scholar. With the exception of Switzerland all the member States of the Rhine Commission are also members of the European Atomic Energy Community (Euratom) and hence obliged to comply with the provisions of Chapter III of the Euratom Treaty concerning the protection of health and safety (298 U.N.T.S. p. 167; Trb. 1957 No. 75). These provisions inter alia provide that basic standards for the protection of the health of workers and of the general public against radio-active contamination be laid down within the Community (See for the basic standards the Council Directive of 21 February 1959, in: Official Journal of the European Communities (1959) p. 221)Google Scholar. For amendments to the basic standards see: ibidem (1962) p. 1633 and ibidem (1966) p. 3693). The supervisory function of the European Commission is particularly important. This Commission has a right of access to the monitoring facilities of the member States and may check their operation and efficiency. It is also entitled to make recommendations to the member States with regard to the level of radio-activity in air, water and soil. In urgent cases it can even issue a directive requiring the State concerned to take within a period laid down by the Commission all measures necessary to prevent the basic standards from being exceeded and to ensure compliance with regulations. If the State in question fails to comply with the directive the Commissions or any member States concerned may bring the matter immediated before the Court of Justice of the European Communities. Each member State is, moreover, obliged to provide the Commisson with such data relating to any plan for the disposal of radio-active waste as will enable the Commission to determine whether the implementation of such plans is liable to result in the radio-active contamination of water, soil or air-space of another member State. The Commission must express its opinion on the plan within six months.

83. See supra, p. 77.

84. See NRC Handelsblad of 14 July 1972, p. 3.Google Scholar

85. Aanh. Hand. II 1971/72 No. 1039, p. 2097.

86. See Bijl. Hand. II 1972 - 12108 for the text of the communiqué of the Conference. For a discussion of the results of the Conference in the Second Chamber of the Staten-Generaal see Hand. II 1972 pp. 858–863.

87. See Hand. II 1972, p. 861.

88. Hand. II 1972, p. 860.

89. The Rhine Commission later put this quantity at 1 kg/sec chloride-ions.

90. 11 I.L.M. (1972) p. 262; Trb. 1972 No. 62.

91. See at present also the Convention for the Prevention of Marine Pollution from Land-Based Sources, which was adopted by a Conference of States on 21 February 1974 and opened for signature on 4 June 1974. All the Member States of the Rhine Commission participated in the afore mentioned conference. The text of the Convention is reproduced in 13 I.L.M. (1974) pp. 352–372.

92. Since water purification plants require a lot of space, cities located near or even partially surrounded by an international border may not be in a position to build those plants in the territory of the State in which they are located. The city of Basle, which contributes substantially to the pollution of the Rhine, has been confronted with this problem. In order to solve this problem Switzerland has concluded an agreement with France for the construction of a purification plant in St. Louis Huningue in French territory in order to purify the waste water of that part of the city of Basle which is located on the left bank of the Rhine. The waste water of the part of the city which is located on the right bank will be purified by a plant to be constructed near Haltingen in German territory. See Verhandlungen des Deutschen Bundestages, 5th election period 1969, printed document No. V/4694, pp. 127–128. For the text of the agreement with France see Report No. 43 of 6 November 1969 delivered by Jung during the first ordinary session of 1969–1970 of the French Senate.

93. In this context it is interesting to note that the question of the apportionment of the cooling capacity of the Upper Rhine has been a point of dispute between Switzerland and the Land Baden-Württemberg for several years. During a meeting of experts of the two countries in December 1969 the Swiss experts maintained that Switzerland was entitled to 80 per cent of the water of the Upper Rhine for the cooling of nuclear power plants to be built on the Swiss bank of the river. This claim was based on the fact that 80 per cent of the water of the Upper Rhine near Basle originates in Switzerland while only 14 per cent originates in Austria and 6 per cent in West-Germany. The Swiss claim was, however, rejected by the experts of Baden-Württemberg. The latter were of the opinion that the apportionment should be based on the proportion between the lengths of the banks of the Upper Rhine belonging to the riparian States. On the basis of this test Switzerland and West-Germany would be entitled to respectively 55 per cent and 45 per cent of the water. According to Baden-Württemberg the Swiss claim was contrary to the rules or principles of general international law concerning the use of international rivers. When it turned out that the Swiss experts were not prepared to abandon their claim Baden-Württemberg asked the German Federal Government to open negotiations with the Swiss Federal Government. The controversy has, however, not yet been solved and will probably come up for discussion in the Rhine Commission. See on this question: Verhandlungen des Deutschen Bundestages, 6th election period of 21 January 1970, p. 1005Google Scholar; ibidem, 1970, printed document No VI/383; ibidem, 38th session of 13 March 1970, p. 1930; ibidem, 115th session of 28 April 1971, p. 6820. See also Verhandlungendes Landtages von Baden-Württemberg, 4th election period, 106th session of 23 November 1967, pp. 5940–5943Google Scholar and Rousseau, Ch., “Chronique des faits internationaux”, 74 R.G.D.I.P. (1970) pp. 1045–1047.Google Scholar

94. See Hand. II 1972 p. 858.

95. According to M.F.Vigeveno, President of the Rhine Commission this decision was the most important one that came out of the Conference. Address for the panel discussion on “Environmental Protection: The Trade-Offs” at the International Industrial Conference sponsored by The Conference Board and Stanford Research Institute, 17–21 September 1973 in San Francisco, California, p. 15.

96. See Bijl. Hand. II 1973/74 – 12600 XII No. 10 for the text of the communiqué of the Second Conference of Ministers. See also Bijl. Hand. II 1973/74 – 12872 No 1 for an explanation of the results of the Conference by the Netherlands Minister of Public Health and Environment.

97. See NRC Handelsblad of 5 December 1973, p. 9.

98. New problems also arose with regard to the listing of the salt discharge which has been decided by the Ministers of the Hague Conference (see p. 86). Basing itself on a statutory restriction Germany appeared unwilling to hand over to the Rhine Commission a list of industries or other sources responsible for the salt discharges. See: NRC Handelsblad of 19 October 1973, p. 9. In view of the task conferred on the Commission by Article 1 para. 1 (a) of the Rhine Convention the legality of the German refusal must be doubted.

99. The Rhine Commission decided in March 1974 that the list should include all industries which annually use at least 100 kg mercury or 50 kg cadmium. See NRC Handehblad of 29 March 1974, p. 9.

100. See supra, p. 89.

101. See the Bulletin of 6 February 1963 No. 24 p. 211 published by the Press and Information Office of the German Federal Government.

102. According to Articles 2 of the Moselle and Saar Protocols the Commissions were to protect the water of the Moselle and the Saar. The 1956 Luxembourg Agreements provide, however, that riparian States will take measures to protect those waters and their tributaries against pollution and in practice the Commissions have also extended their activities to those tributaries.

103. See with regard to the pollution of the Moselle and the Saar: Wagner, H., “Gewässerschutz-probleme an Mosel und Saar” [Water protection problems on the Moselle and the Saar], in: Europäische Gewässerschutzprobleme [European water pollution problems], pp. 103–106Google Scholar, published by the Föderation Europäischer Gewässerschutz, Zürich, 1957. See also Denkschrift ALRR 1965, p. 14.

104. See with regard to the complaints in the Bundestag and the measures taken by France to limit the coal-sludge pollution: Verhandlungen des Deutschen Bundestages, 5th election period, 21st session of 16 February 1966, pp. 899–900Google Scholar; ibidem, 5th election period, 34th session of 25 March 1966, pp. 1622–1623; ibidem, 5th election period, 96th session of February 1967, p. 4363.

105. Every two years the Commission draws up a Tätigkeitsbericht [Report of activitiesj which is, however, only intended for official use. Information about the activities of the Commission can be obtained from the Berichte which are from time to time published by the Commission; E.Diez, op.cit; K. Kübler, op.cit.; Lectures held during a Press Conference organized by the Commission which took place on 26 October 1971 in St. Gallen (Switzerland).

106. The text of the Richtlinien can be obtained from the Swiss Federal Office of Environmental protection at Berne. The Richtlinien are from time to time amended in order to keep pace with new technical and scientific developments.

107. This may also lead to cooperation between neighbouring cities which are not located in the same State. Thus it is interesting to note that the effluents of the Swiss city of Kreuzlingen will be treated by the purification plant of Constance in Germany (see Rousseau, Ch., “Chronique des faits internationaux”, 76 R.G.D.I.P. (1972) p. 805)Google Scholar and that a common German-Swiss purification plant is being built in Ramsen (Switzerland). (See H. Gässler, “Stand der Gewässerschutzmassnahmen in baden-württembergischen Einzugsgebiet des Bodensees” [State of the water protection measures in the drainage basin of Lake Constance situated in Baden-Württemberg], Lecture held at the Press Conference mentioned in note 105, pp. 1–2.

108. The Commission has always paid much attention to the protection of the Lake against pollution by oil. In order to deal effectively with oil accidents a warning system has been estabished between the riparian States. In November 1963 the Commission held an extraordinary session in order to discuss the implications of the projected oil pipeline Genou-Ingolstadt for the quality of the water of the Lake. See Diez, op.cit. and Verhandlungen des Deutschen Bundestages, 5th election period, 1967, printed document V/1634, pp. 5069–5070Google Scholar.

109. It is possible that the rather general provisions for the protection of the Lake against pollution caused by navigation and floating installations will be deleted from the Richtlinien in the near future. On 1 June 1973, West Germany, Austria and Switzerland concluded an Agreement with Additional Protocol concerning navigation on Lake Constance (Upper Lake). On the same day an Additional Treaty concerning navigation on the Lower Lake and the Rhine between Constance and Schaffhausen was concluded between West-Germany and Switzerland, while an Additional Treaty concerning navigation on the Old Rhine was concluded between Austria and Switzerland (the text of the three Agreements can be found in resp. 125 Feuille Fédérale de la Confédération Suisse (1973), II, pp. 945, 959, 964). The three Agreements, which are closely interconnected, are also important in view of the protection of the above-mentioned waters against pollution.

According to Article 5 of the Agreement on Lake Constance (Upper Lake) the contracting States shall enact uniform regulations for the navigation. These regulations shall inter alia provide for the protection of the environment against damage caused by navigation or floating installations. They may even prohibit the navigation on the Lake by certain types of vessels or in certain parts of the Lake or during certain periods. The Agreement (Article 19) further provides for the establishment of an International Commission for Navigation on Lake Constance. The delegation of each of the three riparian States will consist of three delegates. Decisions must be taken unanimously, each delegation having one vote. The Commission is inter alia charged with the preparation of the regulations mentioned above.

According to Article 6 of the Additional Treaty on the Lower Lake and the Rhine between Constance and Schaffhausen, West Germany and Switzerland will apply the uniform navigation regulations which have been enacted for the Upper Lake to the Lower Lake and the Rhine between Constance and Schaffhausen, unless local conditions require that special regulations are enacted by the riparian States. Article 5 of the Additional Treaty on the Old Rhine provides mutatis mutandis the same. Article 19 para 3 of the Additional Protocol to the Agreement on Lake Constance (Upper Lake) extends the competence of the Commission established under that Agreement to matters exclusively or partially concerning the Lower Lake and the Rhine between Constance and Schaffhausen on the one hand and the Old Rhine on the other, provided that West Germany does not take part in the voting on matters concerning the Old Rhine and Austria does not take part in the voting in matters concerning the Lower Lake and the Rhine between Constance and Schaffhausen.

110. See H.Gässler, “Die Konzeption der Reinhaltungsmassnahmen” [The concept of the cleansing measures], Lecture held during the Press Conference mentioned in note 105.

111. See Gässler, H., Die Reinhaltung des Bodensees als Voraussetzung für die weitere Entwicklung des Fremdenverkehrs [The cleansing of Lake Constance as a condition for the further development of tourism], Schriftenreihe der Industrie- und Handelskammer, Konstanz, Heft 17, p. 24 (1972).Google Scholar

112. The 1970 Police Regulation was adopted by the Central Commission during its session of of 23 October 1969 (Protocol 1969-IV-18). See for the Netherlands implementation of the Police Regulation Stb. 1972, No. 48.

113. See Graff, M., “Intervention de la Commission central du Rhin en matière de la lutte contre la pollution des eaux du Rhin” [Measures taken by the Central Commission of the Rhine for the protection of the waters of the Rhine against pollution], in: Water Pollution Problems on the Rhine River, mentioned in note 5, pp. 27–20.Google Scholar

114. Para 4 reaffirmed certain amendments to the 1955 Police Regulation which had the same object and were adopted by the Central Commission in 1961 (Protocol 1961-II-35) and 1964 (Protocol 1964-II-14).

115. See for measures taken by the riparian States to control the oil pollution of the Rhine: Verhandlungen des Deutschen Bundestages, 5th election period, 1966, printed document V/922; ibidem, 5th election period, 1968, printed document V/2518;Aanh. Hand. II 1970/71 No. 1111 p. 2235; NRC Handelsblad of 21 September 1972, p. 3.Google Scholar

116. Adopted by the Central Commission by Resolution of 29 April 1970 (Protocol 1970-I-6). See for the Netherlands implementation of the Regulation Stb. 1971 No. 778. The Regulation was based on the “Accord européen relatif au transport international des marchandises dangereuses par voie de navigation intérieure” (abbreviated: A.D.N.), adopted by the Economic Commission for Europe of the United Nations by Resolution of 8 April 1964. Hence the abbreviation A.D.N.R. for the Rhine Regulation. The “R” stands for “Rhénane”.

117. Trb. 1955 No. 161.

118. See Verhandlungen des Deutschen Bundestages, 6th election period, 1970, printed document VI/537.

119. E.g. rules relating to the carriage of substances which do not constitute a danger to the safety of navigation but can adversely affect the quality of the water or rules regarding the storage of dangerous substances in the vicinity of the river.

120. Some contacts have already taken place between the Rhine Commission and the Central Commission, See Tätigkeitsberichte RC, 1969, pp. 7–8Google Scholar; 1970, p. 7 and 1971, p. 16.

121. A complicating factor is that ships belonging to nationals of States, which are not members of the Rhine Commission (e.g. Belgium), also ply the Rhine.

122. See with regard to the international legal aspects of the Rhine pollution: M. Wolfrom, op. cit; C.W. van Santen, op. cit.; de Wilde, K.T., Riviervervuiling in het bijzonder die van de Rijn als probleem van volkenrecht [Pollution of rivers, especially of the Rhine, as a problem of international law], The Hague: T.M.C. Asser Instituut, 1971, 48 pp.Google Scholar; van Panhuys, H.F., “Rijnvervuiling en het volkeniecht” [The pollution of the Rhine and international law] 57 Waterschapsbelangen (1972) pp. 3–11 and 26–28Google Scholar. With regard to the international legal aspects of the pollution of other international inland waters or of international inland waters generally see: Baskin, J.J., “Questions de droit international relatives à la pollution des Eaux” [Problems of international law with regard to water pollution] 73 R.G.D.I.P. (1969) pp. 421–431Google Scholar; Bilder, B., “Controlling Great Lakes Pollution: A Study in United States-Canadian Environmental Co-operation”, in Law, Institutions and the Global Environment, ed. Hargrove, John L., 1972, pp. 294–380Google Scholar; Bystricky, R., “La pollution des eaux de surface du point de vue international” [The pollution of surface waters from the viewpoint of international law] 13 Revue de droit contemporain (1966), pp. 33–77Google Scholar: Despax, M., La pollution des eaux et ses problèmes juridiques [Legal aspects of water pollution], Paris: Librairies Techniques, 1968, especially pp. 141–164Google Scholar; Dintelmann, K., Die Venunreinigung internationaler Binnengewässer insbesondere in Westeuropa aus der Sicht des Völkerrechts [The pollution of international inland waters – in particular in Western Europa – from the viewpoint of international law], Köln: Carl Heymans Verlag K.G., 1965Google Scholar; Dobbert, J.P., “Water pollution and international river law”, 35 Yearbook of the A.A.A. (1965), pp. 60–99Google Scholar; Grawe, J., “Problems des Umweltschutzes im deutsch-französischen Grenzgebiet” [Problems of environment protection in the German-French border region] in 34 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1974) pp. 299–319Google Scholar; Kiss, A.Ch. and Lambrechts, Cl., “La lutte contre la pollution de l'eau en Europe occidental” [The fight against water pollution in Western Europe] 15 A.F.D.I. (1969), pp. 718–736Google Scholar; Lammers, J.G., “Volkenrecht en rivierwater” [Rivers and international law] Intermediair of 16 February 1973, pp. 7–11Google Scholar; Lammers, J.G., “The activities of the Council of Europe concerning the protection of fresh water against pollution”, 41 Yearbook of the A.A.A. (1971) pp. 55–67Google Scholar; Lester, A.P., “River pollution in international law”, 57 A.J.I.L. (1963) pp. 828–853Google Scholar; G.W. Maas Geesteranus, op. cit; Manner, E.J., “Water pollution in international law. The rights and obligations of States concerning pollution of inland waters and enclosed seas”, in Vol. II of the Documents mentioned in note 1, pp. 446–472Google Scholar; Pondaven, Ph., “Le statut international du Lac Léman” [The international regime of Lake Geneva] 78 R.G.D.I.P. (1974) pp. 60–120Google Scholar, in particular pp. 101–119; Stainov, P., “Les aspects juridiques de la lutte Internationale contre la pollution du Danube” [Legal aspects of the international fight against the pollution of the Danube] 72 R.G.D.I.P. (1968), pp. 97–118Google Scholar; and the literature mentioned in the comment on Articles IX-XI of the Helsinki Rules concerning the use of water of an international drainage basin adopted by the I.L.A. in 1966, in: Report of the 52nd Conference of the I.L.A., pp. 494–505 (1966).

123. Aanh. Hand. II 1971/72 No. 411 p. 829. See also the evasive reply of the Government in Hand. II 1972 pp. 860–861.

124. Bijl. Hand. II 1967/68–7884 No. 5 p. 7.

125. Hand. II 1972 p. 863.

126. See supra, p. 85.

127. See infra, p. 108.

128. See, however, the Articles concerning water pollution in the 1956 Luxembourg Agreements and Art. 1, para 2 of the Convention on Lake Constance, discussed supra, pp. 68–69.

129. Verhandlungen des Deutschen Bundestages, 5th election period, 1969, printed document No. V/4694, p. 130.Google Scholar

130. See the Bulletin of 6 December 1973, No. 158, pp. 1581–1582, published by the Press and Information Office of the German Federal Government.

131. See for the text of the Declaration U.N.Doc. A/CONF.48/14 of 3 July 1972, pp. 2–7.

132. See the communiqué published after the meeting in Bonn, point 4, 7th dash.

133. See with regard to the principle of absolute territorial sovereignty, the principle of absolute territorial integrity (mentioned on p. 107), and the principle of restricted territorial sovereignty and of restricted territorial integrity (mentiond on p. 107) – which are principles developed in literature – Berber, F.J., Rivers in International Law, London: Stevens/New York: Oceana, 1959, pp. 11–40 and the authors quoted by him.Google Scholar

134. See with regard to this principle, the Helsinki Rules, referred to in note 122, especially Articles IV and V. Article X para 1 of these Rules reads: “Consistent with the principle of equitable utilization of the waters of an international drainage basin (it.added) a State (a) must prevent any new form of water pollution or any increase in the degree of existing water pollution in an international drainage basin which would cause substantial injury in the territory of a co-basin State, and (b) should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent that no substantial damage is caused in the territory of a co-basin State”.

135. See supra, p. 103.

136. See e.g. Hand. II 1969/70 pp. 1960–1961, 1976; Bijl. Hand. II 1969/70–10300 XV No. 19; Hand. II 1971/72 p. X 15. See also Jaarverslag '71 van de Rijncommissie Waterleidingbedrijven [The 1971 Annual Report of the Rhine commission established by 6 Netherlands Water Supply Agencies] p. 25 and van der Veen, C. and Zijlstra, K.G., “Normen en internationaal beheer [Norms and international administration], 83 De Ingenieur (1971) pp. A 816 and A 817–818.Google Scholar

137. “But it has to be remembered that the Commission would probably never have been set up if there had been any intention of according it the right to make binding provisions by majority vote”, J.Berg, former president of the Rhine Commission, before the Consultative Assembly of the Council of Europe, in: Council of Europe, Consultative Assembly, seventeenth session, 27 September - 1 October 1965, Official Report of Debates, vol. II, Sittings 8–16, p. 477. See also M.F. Vigeveno, president of the Rhine Commission, op. cit. p. 7. See further the sceptical view of the Netherlands Government in Aanh. Hand. II 1969/70, No. 459, pp. 925–926.

138. See supra, p. 102. See also in this connection the open letter of H.F. van Panhuys, Professor of International Law at Leyden University, in NRC Handelsblad of 25 October 1971, p. 7.

139. The reluctance of the Netherlands Government to institute proceedings before the International Court of Justice against France because of the artificial salination of the Rhine by the potassium mines in the Alsace even went so far that on several occasions it (all but) denied the existence of international legal means to put an end to this pollution. See Hand. II 1967/68 p. 2438; Hand. II 1972 p. 863; see also the statement made by Mrs. I. Vorrink, Netherlands Minister of Public Health and Environment, at the opening of the “Rhine afternoon” organized by the Netherlands Association for the Protection of the Environment (Vereniging van Milieudefensie) on 24 October 1973, The Hague, p. 5. By a letter of 2 January 1974, the French Government notified the termination of its declaration of acceptance of the Court's compulsory jurisdiction under Article 36 para. 2 of the Statute of the Court which could have served as a basis for the Netherlands Government to institute proceedings against France. See I.C.J. Yearbook 1973–1974, p. 49.

140. See in this connection the North Sea Continental Shelf Cases (1969), I.C.J. Rep. 1969, p. 4). In those cases the Court was asked to decide what the applicable rules and principles of international law were with regard to the delimitation of the areas of the continental shelf in the North Sea pertaining to the Netherlands, the Federal Republic of Germany and Denmark.

141. Presuming that the Court or the riparian States will not accept or adhere to the extreme principle of absolute territorial sovereignty or the equally extreme principle of absolute territorial integrity.