The Convention on the Protection of the Rhine (the “Convention”) was opened for signature at Berne, Switzerland on 12 April 1999 and entered into force on 1 January 2003.
The Contracting Parties to the Convention and the members of the International Commission for the Protection of the Rhine (“ICPR”) are Switzerland, France, Germany, Luxembourg, the Netherlands, and the European Community (which is represented by the European Commission Environment Directorate-General). In addition, Belgium, Liechtenstein and Austria, in which parts of the Rhine watershed are located, have observer status and possess the same rights in the Rhine Coordination Committee as the members of the ICPR. A small part of Italy is also included in the Rhine watershed.
Under Article 2, the Convention applies to the Rhine; groundwater, aquatic and territorial ecosystems interacting with the Rhine; and the Rhine catchment area (in regards to pollution affecting the Rhine and flood prevention and protection). Article 1 of the Convention defines the “Rhine” to be “the Rhine from the outlet of Lake Untersee and, in the Netherlands, the branches Bovenrijn, Bijlands Kanall, Pannerdensch Kanaal, Ijssel, Nederrijn, Lek, Waal, Boven-Merweded, Noord, Oude Maas, Nieuwe Mass and Scheur and the Nieuwe Waterweg as far as the base line as specified in Article 5 in connection with Article 11 of the United Nations Convention on the Law of the Sea, the Ketelmeer and the Ijsselmeer.”
Pursuant to Article 6.2 of the Convention, the ICPR is granted legal personality. While in the territory of the Contracting Parties, the ICPR is represented by its Chairman and enjoys the legal capacity conferred on legal persons by domestic law.
According to its Preamble, the goal of the Convention is, through the use of a comprehensive approach, to increase multilateral cooperation in the sustainable development of the Rhine’s ecosystem. As specified in Article 3, the aims of the Convention include:
- Maintaining and improving the quality of the Rhine’s waters (including the quality of the suspended matter, sediments, and groundwater) through the prevention, reduction, or elimination of pollution caused by noxious substances, nutrients from point sources (such as industry and municipalities), diffuse sources (such as agriculture and traffic), and shipping, as well as to ensure the safety of installations and to prevent accidents;
- Protecting species diversity and populations of organisms, and reducing the contamination of organisms from pollution;
- Maintaining, improving, and restoring the natural function of the Rhine’s waters, ensuring proper flow management, as well as conserving and protecting the alluvial areas (low-lying river meadows characterized by floods and low water) along the Rhine as natural floodplains;
- Conserving and improving natural habitats for wild fauna and flora, and restoring free migration for fish;
- Ensuring the environmentally sound management of water resources;
- Taking ecological requirements into account when developing the waterway (such as for flood protection, shipping, or hydroelectric power);
- Producing drinking water from the Rhine;
- Improving sediment quality (so that dredged material could be deposited or spread and not adversely affect the environment);
- Instituting general flood prevention and protection, which incorporates ecological requirements; and
- Coordinating with other projects to protect the North Sea (as the Rhine empties into the North Sea).
In addition under Article 5, the Contracting Parties agreed to:
- Increase their cooperation and inform each other in regards to actions taken to protect the Rhine;
- Implement, in their respective territories, international measuring programs and studies of the Rhine ecosystem agreed upon by the ICPR, and inform the ICPR of the results;
- Conduct studies to identify the causes of and the parties responsible for pollution;
- For actions undertaken in each Contracting Party’s territory, ensure that the discharge of waste water, which could affect water quality, receives prior authorization or is subject to general rules on emission limits; discharges of hazardous substances are gradually reduced; discharges and compliance with authorizations and general rules are monitored; the authorizations and general rules are periodically reviewed; the risk of pollution from accidents is reduced through the use of regulations and measures are in the place to be used in case of emergency; and technical measures, which could have a serious effect on the ecosystem, receive prior authorization or are subject to general regulations;
- Undertake actions in their territories to implement the decisions of the ICPR; and
- In cases of imminent flooding or accidents that could threaten the water quality of the Rhine, immediately inform the ICPR and the other Contracting Parties who could be affected, according to the established warning and alert plans.
In implementing the Convention, the Contracting Parties, under Article 4, pledged to be guided by the following principles: the precautionary principle; the principle of preventive action; the principle of rectification; the polluter pays principle; the principle of not increasing damage; the principle of compensation for major technical measures; the principle of sustainable development; the application and development of the state of the art and best environmental practices; and the principle of not transferring environmental pollution from one environment to another.
Under Article 8, the ICPR is responsible for: (a) preparing international measuring programs and studies of the Rhine ecosystem and using the results of these analyses, including cooperating with scientific institutions if needed; (b) making proposals for action, while considering the expected costs and including economic instruments where appropriate; (c) coordinating the Contracting Parties’ Rhine warning and alert plans; (d) evaluating the effectiveness of actions taken, based on the Contracting Parties’ reports and the results of the measuring programs and the studies of the Rhine ecosystem; (e) submitting an annual activity report to the Contracting Parties; (f) informing the public about the condition of the Rhine and the results of its works; and (g) carrying out any other tasks as assigned by the Contracting Parties.
In January 2001, the Contracting Parties adopted “Rhine 2020” – a sustainable development program that details objectives and measures for a Rhine protection policy. Core parts of the Rhine 2020 program include:
- The implementation of Rhine habitat patch connectivity (i.e., maintaining, upgrading and linking habitat types along the Rhine from Lake Constance, at the northern foot of the Alps, to the North Sea). The ICPR program includes actions to: (a) preserve freely flowing river sections; (b) restore river dynamics; (c) allow a more varied design of the structure of river banks and bottom; (d) open old alluvial areas to the river; (e) shift to more extensive agriculture in the floodplain; (f) remove obstacles to the migration of river fauna; and (g) reconnect old river branches and torrents. The goal is to reconnect the eight different habitats along the Rhine and to provide ecological continuity to the Rhine ecosystem.
- The Salmon 2020 program, which aims at creating an almost stable wild salmon population in the Rhine ecosystem by 2020. This program builds upon the ICPR’s Salmon 2000 initiative which assisted natural salmon reproduction in several Rhine tributaries. The goals of Salmon 2020 are: (a) 7,000-21,000 upstream migrating salmon in the Rhine; (b) free upstream migration of salmon as far as Basel, Switzerland; (c) self-sustaining salmon stocking; and (d) the return of wild salmon from the ocean by 2020 and their natural reproduction.
- The improvement of flood mitigation, through the implementation of the Action Plan on Floods. In response to the floods of the Rhine in 1993 and 1995, the ICPR, under the old treaty regime, adopted the Action Plan on Floods at a Conference of Ministers on 22 January 1998 in order to improve flood protection and to enhance the floodplains of the Rhine. The Action Plan on Floods is scheduled to be undertaken in phrases and to be implemented by all of the Rhine bordering countries by 2020, at a projected cost of 12 billion euros. The first phase was completed in 2005. The objectives for 2020 are to: (a) reduce damage risks by 25%; (b) reduce by up to 70 centimeters the extreme flood stages downstream of the impounded sections; (c) warn the populations living in the immediate vicinity or near the Rhine of the flood dangers by drafting maps of the flood dangers and pointing out the areas of risk; and (d) prolong the period of flood forecasting in order to avoid potential damages.
- Improving water quality. The ICPR is focused on reducing micro-pollutants (synthetic organic substances used in daily life – such as residues of pharmaceuticals and cleaning products) and agricultural pollutants and nutrients that seep into the water. The water quality of the Rhine will be evaluated against target values and environmental quality standards.
- Groundwater protection. Targets in this area include: (a) protecting groundwater from the infiltration of polluted Rhine water (as well as protecting the Rhine against polluted groundwater); (b) maintaining the dynamic relationship between running waters and groundwater, especially in the floodplain; (c) protecting, improving and restoring the groundwater; (d) restoring the balance between groundwater extraction and recharge; (e) enhancing rainwater seepage and infiltration, without causing damage; (f) improving the soil ecosystem through the restoration of natural floodplain dynamics; (g) accounting for the vulnerability of groundwater, as well as the aquifer in potable water protection areas, when new surfaces are subjected to industrial or commercial use; (h) maintaining high levels of security when stocking and transporting water polluting substances; and (i) protecting groundwater when flooded gravel pits are used in the floodplain of the Rhine.
- Continual monitoring of the Rhine (from Switzerland to the Netherlands), including biological monitoring and the classification of plants and animals. When an accident does occur along the Rhine or one of its major tributaries (or large amounts of hazardous substances flow into the river), the Warning and Alarm Plan is to be applied. Approved by the ICPR, the Warning and Alarm Plan is intended to alert downstream users of serious water pollution events. The Warning and Alarm Plan also provides a forum for the Contracting Parties to exchange information, gathered by monitoring stations along the river, on water pollution levels. For more information, see Data Information Sharing, Exchange, and Harmonization and Notifications.
Under Article 7 of the Convention, the ICPR is composed of delegations appointed by its Contracting Parties, with each delegation serving as chair and appointing the presiding Chairman for three years in turn. The ICPR has drafted rules of procedure and financial regulations to govern its operation.
Since 1972, the Conference of Ministers (composed of the ministers from the Contracting Parties who are in charge of water protection) has met periodically to determine commitments for the Contracting Parties and tasks for the ICPR to undertake. The decisions of the Conference of Ministers are binding on the Contracting Parties. The most recent conference was in Bonn, Germany in 2007.
The ICPR holds one Plenary Assembly a year in which it prepares resolutions to be passed by the Ministers in the Contracting Parties who are in charge of the Rhine. Extra sessions can be convened by the Chairman, or at the request of any two delegations. Although the Chairman proposes the agenda for the meeting, each Contracting Party has the right to include any item it wants to discuss on the agenda.
The Rhine Coordination Committee, which is held annually with the Plenary Assembly, coordinates the tasks of the ICPR and decides on the establishment of various project groups. A Strategy Group, in turn, prepares decisions to be adopted by the Plenary Assembly and the Rhine Coordination Committee. The Strategy Group is also responsible for: (a) preparing solutions for budget and staff issues; (b) coordinating, managing and overseeing the ICPR’s work – for example, activities related to Rhine 2020, the European Water Framework Directive, and the European Community Flood Management Directive, as well as reports to the Plenary Assembly, Rhine Coordination Committee, and working groups; and (c) facilitating public relations and information exchange.
Various working groups and expert groups handle technical questions related to the management of the Rhine. There are currently groups addressing floods, water quality/emissions, ecology, data management, and an integrated economic approach. In addition, the ICPR has also established a project group on micro-pollutants that is charged with developing, by the end of 2010, a comprehensive strategy for reducing micro-pollutants from urban wastewater and other sources in the Rhine and its tributaries through improved knowledge on emissions, eco-toxicological reactions and suitable treatment methods.
The international secretariat of the ICPR is headquartered in Koblenz, Germany. The secretariat provides support services to the Chairman, Plenary Assembly, and the Rhine Coordination Committee. The secretariat is also responsible for public relations efforts and serves as the point of contact for experts and other interested parties. The secretariat is headed by an Executive Secretary appointed for a four year term with the option of renewal. The Executive Secretary is appointed by the Chairman and approved by the ICPR on the recommendation of the Dutch delegation and a selection committee.
Article 14 of the Convention specifically obligates the ICPR to cooperate with other intergovernmental organizations. The ICPR is also authorized to recognize states, intergovernmental organizations, and non-governmental organizations as observers. Observers can submit relevant information to the ICPR and be invited to participate in ICPR meetings. In addition, the ICPR is supposed to exchange information with nongovernmental organizations working in relevant areas and, when making decisions likely to have an important impact on these organizations, to consult with them and inform them once a decision has been made.
Certain European Union directives and regulations affecting watersheds also impact the work of the ICPR. For example, the 2000 European Water Framework Directive establishes a framework for implementing comprehensive water protection in the various European river districts, requiring, among other mandates, all European water bodies to achieve good status by 2015 and to employ transboundary, integrated assessment techniques to manage rivers and maintain good ecological and chemical status. The Rhine 2020 is intended to satisfy the relevant requirements of the European Water Framework Directive for the Rhine watershed. In addition, the European Community Flood Management Directive calls for flood risk assessments to be completed by 2012, draft maps by 2013, and flood management plans by 2015 for all international river basin districts. The ICPR has already drafted an Action Plan for Floods for the Rhine. See Functions.
Under Article 10 of the Convention, decisions of the ICPR must be approved by a unanimous vote – with each Contracting Party possessing one vote. A vote will still be considered unanimous if one delegation (not including the European Community) abstains. For decisions involving individual measures falling within the competency of the European Community, the European Community may vote with 4 votes (representing the number of countries that are both Contracting Parties of the Convention and of the European Community). But, the European Community may not vote in cases where those Contracting Parties vote, and vice versa.
Pursuant to Article 16 of the Convention, any dispute between the Contracting Parties regarding the interpretation or application of the Convention should be resolved by negotiation or another form of dispute settlement. If the dispute persists, it will, upon the request of one of the parties to the dispute, be referred to arbitration.
An annex to the Convention sets forth the applicable arbitration procedures, which will be used unless the parties to the dispute agree otherwise. Under the terms of the annex, the arbitral tribunal will consist of three members, one appointed by each party and a chair to be agreed upon by the two party-appointed arbitrators. Following certain procedures and timeframes, the President of the International Court of Justice is authorized to select the arbitrators for the panel if the parties to the dispute or the party-selected arbitrators are unable to select their required arbitrator(s). The tribunal is to base its decisions on the provisions of the Convention and the rules of international law. Both procedural and substantive decisions may be made by majority vote of the arbitral tribunal and are binding. Each party will be responsible for the costs of its appointed arbitrator and will equally share the costs of the tribunal.
Under Article 5(1) of the Convention, the Contracting Parties agreed to cooperate and inform one another of actions taken in their territory to protect the Rhine. In addition, under Article 5(2), the Contracting Parties have also committed to implementing international monitoring programs and studies of the Rhine ecosystem in their territories and to inform the ICPR of the results of those studies and programs.
The ICPR relies on the data collection and monitoring efforts of the Contracting Parties. For example, the Warning and Alarm Plan allows the ICPR to gather information on water pollution levels collected by monitoring stations along the river, with more than 100 substances monitored. For more information on the Warning and Alarm Plan, see Notifications. In addition, the Rhine 2020 program contains numerous targets designed to improve the health and ecological balance of the Rhine, and which call upon the Contracting Parties to work in collaboration in order to meet the stated goals of the program. See Functions.
In addition, as required by the European Water Framework Directive, an Internationally Coordinated Management Plan for the International River Basin District of the Rhine (Part A) was released in December 2009. The report contains a discussion, as it pertains to the Rhine, of: (a) human activities and stresses; (b) a register of protection areas; (c) surveillance networks and results of surveillance programs; (d) environmental objectives and adjustments; (e) economic analysis; (f) summary of the program of measures; (g) a list of the program and management plans; (h) as well as other relevant items. There are also coordinated reports for the areas of operation in the Rhine international river basin district (the Alpenrhein/Bodensee, High Rhine, Upper Rhine, Neckar, Main, Middle Rhine, Mosel/Saar, Niederrhein, and the Delta Rhine), as well as national management plans for Switzerland, Liechtenstein, Austria, France, Germany (broken down by different regions in the country), Luxembourg, Belgium, and the Netherlands. For additional information on the European Water Framework Directive, see Relationships.
Under Article 5(6) of the Convention, the Contracting Parties must immediately inform the ICPR and other potentially affected Contracting Parties when there is an accident that threatens the water quality of the Rhine or in the event of imminent flooding. The Warning and Alarm Plan provides procedures for identifying, countering and mitigating pollution. The International Main Alert Centers (“IHWZ”) along the Rhine are supposed to issue warnings in cases of water pollution if the amount or concentration of the pollutants could potentially have a detrimental impact on the Rhine’s water quality or water supply or raise a high level of public interest. A search report will be issued when it is necessary to find, in a particular incident, the entity that is polluting the Rhine. In addition, the IHWZ will also release information on the status of Rhine, such as notifying countries bordering the Rhine if certain target values are exceeded. A report on all the warnings, information, and search reports for each year is made available on the ICPR’s website.
There are seven IHWZ, which are located in Basel, Switzerland; Strasbourg, France; Karlsruhe, Germany; Wiesbaden, Germany; Koblenz, Germany; Düsseldorf, Germany; and Arnhem, the Netherlands. In the event of an accident, the IHWZ in whose territory the incident occurs is responsible for preparing the initial report. Reports are immediately delivered to the regional and national warning authorities. The responding water center also faxes the report to the downstream IHWZ and the secretariat as rapidly as possible. (If the location of the accident is not clearly identified, the report is also sent to upstream IHWZ) After the danger has passed, an “all clear” signal will be issued to all IHWZ who received the initial report, as well as to the ICPR secretariat.
Under Article 8(3) of the Convention, the ICPR is required to submit an annual activity report to its Contracting Parties. The Contracting Parties are also required, according to Article 11(3), to report regularly to the ICPR concerning: (a) legislative, regulatory and other measures that are taken to implement the Convention and the ICPR’s decisions; (b) the results of those measures; and (c) any problems arising in their implementation.
According to Article 13 of the Convention, each Contracting Party is responsible for the costs associated with its representation in the ICPR and for studies and other actions it undertakes within its territory. The distribution of the annual operating budget costs between the Contracting Parties is set forth in Article 9 of the ICPR’s Procedural Rules. Switzerland’s share of the budget is 12% and the European Community’s share is 2.5%. The remaining 85.5% share is divided between Germany (32.5%), France (32.5%), Luxembourg (2.5%), and the Netherlands (32.5%).
The Executive Secretary is responsible for drafting the annual budget and managing the ICPR’s income and expenditures. Prior to the Plenary Assembly, the Executive Secretary submits to the Contracting Parties’ delegations: the draft budget for the next year, the non-binding budgetary planning for the following three years, and an annual statement of the accounts from the past year. The Plenary Assembly adopts the budget for the next year. Afterwards, the Executive Secretary notifies each Contracting Party of the amount of its required contribution, with payment due by February 15. If a Contracting Party does not timely pay its contribution and this has a detrimental impact on the budget, the ICPR has the authority to charge the delinquent Contracting Party, in its assessed contribution for the following year, for the deficit it caused. The ICPR is also empowered to establish a reserve fund equal to 10% of the budget. During the course of a year, if the ICPR is confronted with new or higher than anticipated expenses, a supplementary budget may be drawn up and additional expenses covered by the reserve fund or additional supplementary contributions from the Contracting Parties. The ICPR also employs two auditors to manage bookkeeping.
Through programs adopted by the ICPR and decisions implemented by the Contracting Parties, the Contracting Parties are obligated to undertake certain measures in regards to the Rhine. But, the aim of the Convention is to promote the sustainable development of the Rhine ecosystem for the benefit of all.
Under Article 11 of the Convention, the ICPR conveys to its Contracting Parties directives on measures that are to be implemented by individual states in their territories. The ICPR maintains a list of these decisions, which is updated on an annual basis. The ICPR may impose timetables for implementation and/or require other forms of coordination. The Contracting Parties must also report regularly to the ICPR on: (a) the legislative, regulatory and other measures taken to implement the Convention and the ICPR’s decisions; (b) the results of these measures; and (c) any problems arising from their implementation. If a Contracting Party cannot implement a decision, it must inform the ICPR and detail the reasons why it was unable to comply. In certain situations, the ICPR may assist a Contracting Party in implementing its directives.
Under Article 14, the ICPR may recognize as observers, states and other intergovernmental and nongovernmental organizations who work in related fields. Observers are allowed to submit relevant information and reports to the ICPR, but not to vote. The ICPR is also allowed to consult relevant experts. Pursuant to Article 8 of the Procedural Rules, observer status is granted in part on the basis of a non-governmental organization’s specific technical or scientific knowledge and acceptance of the Convention’s targets and basic principles. See also Relationships. Observer organizations include, among other organizations, Greenpeace International, the European Chemical Industry Council, the European Union of National Associations of Water Suppliers and Waste Water Services, the International Commission of the Meuse, and the Oslo and Paris Commissions for the protection and conservation of the North-East Atlantic.
Although meetings of the Plenary Assembly and other ICPR meetings and their correspondence and documents are not public according to Procedural Rule 11, the ICPR occasionally makes documents publicly available on its website.
Under Article 18, a Contracting Party may withdraw from the Convention by submitting a written declaration to Switzerland, the Convention’s depositary. This withdrawal takes effect at the end of the year following the submission.
On 11 July 1950, based upon an initiative by the Netherlands, the first conference of the “International Commission for the Protection of the Rhine against Pollution” was held. The conference aimed to provide a forum for the discussion of issues related to the pollution and restoration of the Rhine and had Switzerland, France, Luxembourg, Germany, and the Netherlands in attendance. In 1963, Switzerland, France, Luxembourg, Germany, and the Netherlands signed the Berne Convention and officially established the International Commission on the Protection of the Rhine against Pollution (with the European Economic Community becoming a party to the convention in 1976). Also in 1976, the Contracting Parties signed the Convention on the Protection of the Rhine against Chemical Pollution and the Convention on the Protection of the Rhine against Chloride Pollution (which contained a supplementary agreement signed in 1991). In addition, in response to the Sandoz chemical spill in the Rhine in November 1986, the Contracting Parties established the Rhine Action Programme (“RAP”). The RAP, a precursor to Rhine 2020, was designed to rehabilitate the river by 2000. The program’s goals were to: (a) return fauna species, such as salmon, to the Rhine; (b) continue drinking water production; and (c) reduce the pollutant contents of river sediments. The ICPR established concrete targets and measures for compliance. In 1998, the 12th meeting of the Conference of Ministers, the text of the current Convention was adopted, which replaced the above-mentioned international agreements governing the Rhine (even though the decisions, recommendations, limit values, and other arrangements adopted under these previous agreements still apply, unless they were expressly repealed).
- International Commission for the Protection of the Rhine, available at http://www.iksr.org/index.php?id=58&L=3&cHash=455fdab52c.
- EUROPA: Summary of Treaty – Convention on the Protection of the Rhine, available at http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=634.
- Laurence Boisson de Chazournes, The “Rhine Chlorides” Arbitration Concerning the Auditing of Accounts (Netherlands – France) – Its Contribution to International Law, PERMANENT COURT OF ARBITRATION AWARD SERIES: THE RHINE CHLORIDES ARBITRATION CONCERNING THE AUDITING OF ACCOUNTS (NETHERLANDS-FRANCE) AWARD OF 2004 (Cambridge University Press 2008).
- Elli Louka, International Instruments, INTERNATIONAL ENVIRONMENTAL LAW: FAIRNESS, EFFECTIVENESS, AND WORLD ORDER, 231-235 (Cambridge University Press 2006).
- Mark Cioc, THE RHINE: AN ECO-BIOGRAPHY 1815-2000 (University of Washington Press 2002).
- Marco Verweij, TRANSBOUNDARY ENVIRONMENTAL PROBLEMS AND CULTURAL THEORY: THE PROTECTION OF THE RHINE AND GREAT LAKES (Palgrave Macmillan 2000).
- Renate I. Mreschar, Cleaning up the Rhine: how this famous river has been restored to its former glory, MAX PLANCK RESEARCH, 2001, available athttp://www.mpg.de/english/illustrationsDocumentation/multimedia/mpResearch/2001/heft01/Environment_Rhine.pdf.
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Depending on the project scope the treaty may not be applicable to all projects