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Who can clean up the Rhine: the European Community or the International Rhine Commission?*

Published online by Cambridge University Press:  21 May 2009

Menno T. Kamminga
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Extract

After 30 years of negotiations, the Rhine river is still very polluted. Although the concentration of some pollutants has diminished during the past few years, the quantity of other harmful substances is still increasing. This lack of progress can be explained to a large extent by a set of peculiar circumstances which seems to be unique for the Rhine. The most important of these circumstances is the international dimension of the situation. The main stem of the Rhine flows through the sovereign territories of Switzerland, the Federal Republic of Germany, France and the Netherlands. Its drainage area, moreover, also covers Italy, Austria, Luxemburg and Belgium. Obviously, no anti-pollution policy can hope to be effective until at least the most directly concerned of these eight States have reached agreement on common objectives and common measures. Reaching agreement, however, is complicated by the problem of conflicting uses which may be more intricate for the Rhine than for any other international river.

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Articles
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Netherlands International Law Review , Volume 25 , Issue 1 , May 1978 , pp. 63 - 79
Copyright
Copyright © T.M.C. Asser Press 1978

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References

1. Internationale Arbeitsgemeinschaft der Wasserwerke im Rheinzugsgebiet (IAWR), Rheinbericht 1976 (International Committee of Rhine Basin Water Treatment Works, Rhine Report 1976) p. 13.Google Scholar

2. This is the figure for the main stem of the Rhine. The total number of people served by water of the drainage basin of the Rhine as a whole amounts to 20 million. See International Commission for the Protection of the Rhine against Pollution, Long-term work programme (summary) p. 39.Google Scholar

3. Cf. infra note 15.

4. See, in particular, Wolfrom, Marc, “La pollution des eaux du Rhin” (The pollution of the Rhine waters), Annuaire Français de Droit International, vol. 10 (1964) p. 737CrossRefGoogle Scholar and Lammers, J.G., “International co-operation for the protection of the waters of the Rhine basin against pollution”, Netherlands Yearbook of International Law, vol 5 (1974) p. 59.CrossRefGoogle Scholar

5. For a detailed account of this early form of co-operation see Wolfrom, , “La pollution des eaux du Rhin”, supra note 4 pp. 738–742.Google Scholar

6. French text in Revue générate de droit international public, vol. 69 (1965) p. 897.Google Scholar Dutch and French texts in Tractatenblad van het Koninkrijk der Nederlanden (hereafter Trb.) 1965, no. 104.Google Scholar

7. Art. 1.

8. Commissions for the Moselle, the Sarre, Lake Constance and the Central Commission for Navigation on the Rhine. For a discussion of these Commissions, see Lammers, , “International co-operation for the protection of the Rhine”Google Scholar, supra note 4, passim.

9. Art. 2.

10. Art. 6.

11. Chemical pollution in this context means pollution by all dangerous chemical substances except chlorides and radioactive materials.

12. Convention between France, the Federal Republic of Germany, Luxembourg, the Netherlands and Switzerland for the protection of the Rhine against chlorides. Authentic Dutch and French texts in Trb. 1977Google Scholar, no. 33. Unofficial English translation in International Legal Materials (hereafter ILM), vol. 16 (1977) p. 265.Google Scholar Not yet entered into force.

13. Art 2(2). Before 1 January 1980, discharges will be reduced by at least 60 kg/s.

14. Art. 7(2). It is worth noting that the Netherlands, which discharges practically no chlorides into the Rhine, agreed to contribute to 34% of the costs. It has already been noted on many occasions that apparently the ‘polluter pays’ principle has not been strictly applied here. However, since this paper will focus on the relationship between the EEC and the International Rhine Commission and since the EEC is neither a party to the chlorides Convention nor itself involved in particular activities to limit the discharge of chlorides, that question will be left aside.

15. Convention between the European Economic Community, France, the Federal Republic of Germany, Luxembourg, the Netherlands and Switzerland for the protection of the Rhine against chemical pollution. Not yet entered into force. Dutch and French texts in Trb. 1977Google Scholar, no. 32. German, French and Dutch text and unofficial English translation in Official Journal of the European Communities (hereafter O.J.), vol. 20 (1977), L 240.Google Scholar A different English translation – by the State Department – may be found in ILM, vol. 16 (1977) p. 242.Google Scholar Because the translation in the Official Journal seems to be more accurate and more in tune with the jargon that has developed in western Europe with respect to pollution control, the former text has been used for this paper.

16. Art. 1(a).

17. Ait. 5(2).

18. Art. 1(b).

19. Art. 6.

20. There is a printing error here in the text published in the Official Journal, supra note 15, which refers to “national” species.

21. In addition, Annex A to the Convention contains an interesting further elaboration of the definition of the Rhine as provided for in Article 1 of the Agreement which established the International Rhine Commission (supra note 6) by not only pinpointing the beginning but also the end of the Rhine. Annex A repeats that for the purposes of implementing the Convention, the Rhine shall be taken as “beginning at its outflow from the Untersee” (Lake Constance) but it adds that this also includes “the arms, up to the coastline, through which its waters flow freely into the North Sea, inclusive of the IJssel up to Kampen”. It seems likely that this provision has been added to make sure that the important industrial centers in the harbor area of Rotterdam, at the mouth of the Rhine, could not claim to fall outside the scope of the Convention.

22. Arts. 2(2) and 6(3).

23. Arts. 14(2) and 14(3) specify that “the International Commission shall recommend the amendments or additions which it considers appropriate. The amended or supplemented texts shall enter into force following unanimous acceptance by the Contracting Parties”.

24. Treaty establishing the European Economic Community, Rome, 25 March 1957, between Belgium, France, the German Federal Republic, Italy, Luxembourg and the Netherlands, 298 U.N.T.S. 3. Entered into force on 1 January 1958.

25. Worth mentioning, however, is case 21/76, Handelskwekerij G.J. Bier B. V. v. Mines de Potasse d'Alsace S.A., 1976Google ScholarEuropean Court Reports (hereafter ECR) p. 1735Google Scholar, summarized in this Review, vol. 23 (1976) p. 365. This case did not concern the Treaties establishing the European Communities but Art. 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The European Court of Justice ruled that the expression “place where the harmful event occurred” in this provision must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. Consequently, the Dutch horticulturist Bier could sue the French Mines de Potasse either in Strasbourg or in Rotterdam for damage to his crops. Bier's claim that the discharge of salts into the Rhine is illegal and that the Mines de Potasse must make good the damage is now pending before the Rotterdam Arrondissementsrechtbank (Court of first instance).

26. O.J., vol. 16 (1973), C 112.Google Scholar

27. Unlike what one might expect, Directives are binding upon the Member States. Cf. Art. 189 of the EEC Treaty.

28. O.J., vol. 18 (1975), L 194.Google Scholar Entered into force on 18 June 1977.

29. O.J., vol. 19 (1976), L 31.Google Scholar Entered into force on 10 December 1977.

30. O.J., vol. 19 (1976), L 129.Google Scholar Also reproduced in ILM, vol. 15 (1976) p. 1113.Google Scholar

31. Arts. 6(2) and 6(3).

32. Convention for the prevention of marine pollution from land-based sources, Paris, 4 June 1974, O.J., vol. 18 (1975), L 194.Google Scholar Draft Convention for the protection of international watercourses against pollution, cf. Lammers, Johan G., “The draft European Convention of the Council of Europe for the protection of international watercourses again pollution”, Netherlands Yearbook of International Law, vol. 6 (1975) p. 168.CrossRefGoogle Scholar Rhine chemical pollution Convention, supra note 15.

33. Art. 100: “The Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market”. Art. 235: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures”.

34. Drinking water directive, supra note 28, Art. 6. Bathing water directive, supra note 29, Art. 7. Dangerous substances directive, supra note 30, Arts. 5(2) and 10.

35. Additional Agreement to the Agreement, signed in Bern on April 29, 1963, concerning the International Commission for the Protection of the Rhine against Pollution, Bonn, 3 December 1976. Dutch and French texts in Trb. 1977, no. 31. French, German and Dutch texts and unofficial English translation in O.J., vol. 20 (1977), L 240.Google Scholar Not yet entered into force.

36. Art. 2(c). Similarly, Art. 16 of the Rhine chemical pollution Convention, supra note 15, provides: “For the purposes of applying this Convention, the European Economic Community and its Member States shall act in their respective areas of competence”.

37. Written question 174/77, O.J., vol. 20 (1977), C 223/7.Google Scholar

38. Case 22/70, Commission of the European Communities v. Council of the European Communities, 1971 ECR p. 263.Google Scholar Opinion 1/75, 1975 ECR p. 1355.Google Scholar Cases 3,4 & 5/76, Cornelis Kramer and others, 1976Google ScholarECR p. 1279.Google Scholar Opinion 1/76, O.J., vol. 20 (1977), C 107/4.Google Scholar

39. Supra note 38 p. 274.

40. Resolution on the first environmental action programme, supra note 26 p. 1. This statement was repeated in the Council Resolution on the “second environmental action programme”, 17 05 1977Google Scholar, O.J., vol. 20 (1977), C 139/1.Google Scholar

41. As a matter of fact, theoretically the EEC riparians of the Rhine could agree with Switzerland on less stringent standards for the Rhine than the standards which apply in the Community. In such an imaginary case, the EEC riparians of the Rhine would still have to apply the more stringent Community standards on their discharges into the Rhine, while Switzerland would only be bound by the less stringent standards of the International Rhine Commission.

42. Supra note 34.

43. Supra note 30, Art. 10.

44. In particular, the Rhine Convention contains a more elaborate approach relating to “grey list” substances. The Contracting Parties will draw up reduction programmes within two years and there will be co-ordination within the International Rhine Commission prior to the establishment of these programmes. The EEC Directive contains no time limit and no prior consultation clause. Cf. Rhine Convention, supra note 15, Art. 6 and the EEC Directive, supra note 30, Art. 7.