International Regime of Inland Waterways
Dr. Javier Alvarez.
A) Evolution
In history, inland waterways have been used for sailing by original citizens, not only in Europe but also in America.
That is to say, neither a special juridical status nor any infrastructure works were ever required, because inland waterways were provided by nature, and they were used within their own natural limits.
However, as modern States were constituted, it was imperative to implement agreements that ruled the use of rivers with shared waters, and to foster the cooperation between the various riverside States, to avoid conflicts.
We should stress the fact that the power of a navigable waterway increases greatly –as an international cargo carriage system- when there is a fluvial-oceanic connection. Among the most famous around the world, we can mention:
In Europe, we should mention the basins of the Rhine River, which extends over 6,900 Km., and on which two thirds of the cargo carried by the fluvial ways is transported, and which is the natural exit of the port of Rotterdam. And the Danube river, that crosses the continent from west to east, and represents a fundamental carriage system for the greater Europe. Both systems have been connected since 1992 by the river main channel.
In North America, we should mention the basin formed by the Great Lakes, the San Lorenzo River Channel, the Erie River, and the Ohio, Mississippi and Missouri Rivers. The Mississippi River is connected to the Gulf of Mexico and receives 70% of the cargo coming from the inner USA and carried by the fluvial way, mainly, cargo bound for South America.
In South America, there is the Hidrovía (waterway), which is formed by the Paraguay-Paraná rivers and, through the River Plate, connects to the Atlantic Ocean.
International trade and free navigation have been the drivers of a process that boosted inland navigation as a means of transport.
It was thus that the specialized commissions and technical regulations related to navigation were complemented by public infrastructure works, whereby the great carriage systems were formed, and gave rise to an alternative way to multimodal carriage, as we know it today.
Law has been a fundamental tool in this evolution process.
First, accompanying agreements entered into between nations with the implementation of the Statutes of International Rivers, the Manheim Agreement, 1868, which made possible the implementation of rules of the Central Commission of the Rhine, and the Belgrade Agreement, 1948, which originated the Commission of the Danube.
Then, with the enforcement of the technical regulations for navigation on the part of the above mentioned Commissions; later on, with the constitution of Administration Bodies specializing in the north of America for the Great Lakes area, and the fluvial waterways connecting to the Gulf.
Finally, the regional integration processes in South America, which led to the signature of the River Transport Agreement for the Paraguay-Paraná Waterway in 1992, with the creation of international organizations.
Thus, we can see how the organized legal rules allowed the flow of private investments the result of which was the existence of ports, fleets, and industries along navigable rivers, and the undertaking of public investment works to foster the development of the “Inland Navegation Transport “, transforming these river waterways in true Transport Systems, enhanced with dredging works, buoyage, waiting areas, improvement of sharp turns, roadsteads, ports, industries, dams, etc.
b) Present situation and prospects
International globalization and regionalization phenomena stress and drive the need to promote inland waterways, for economic, logistic, safety and environmental reasons.
In the 21st Century, we are in the presence of a rebirth of waterways and cargo carried by “Inland Navigation Transport “ at the international level, which lead to changes in public and private law by the day.
1) Europe:
In the first years of the new millennium, Europe started to revise the legal system related to the area and rethink the design of its “Inland Navigation Transport “. Now, the EU, which represents an enlarged, integrated continent, has an institutional and regulatory dispersal which needs to be revised. This task has already been commenced.
* Public Law:
In the matter of public law, the following are in force at present: a) the scope of application of the Manheim Agreement, 1868, (Regulations of the Central Commission of the Rhine and its jurisdiction); b) the scope of application of the Belgrade Agreement, 1948, (the regulatory system of the Commission of the Danube); and c) the scope of application of the Community Treaties and the European Commission are under the jurisdiction of the Transports scope, which is implemented in the White Papers, which set forth the objectives for 2010.
The solution being sought is a coordination of the different authorities and the harmonization (respecting the experience and background of the Central Commission for Navigation of the Rhine), by the creation of an European Agency for “Inland Navigation Transport” that seeks to unify the system throughout Europe. Let us remember that the CCNR has uniform legislation (Germany, France, the Netherlands, Belgium and Switzerland), because its set of rules is integrated into the respective national legislations. Instead, the Commission of the Danube can only issue recommendations that each participant State may choose to incorporate to its internal law or not (the following form part of this Agreement: Germany, Austria, Hungary, Rumania, Bulgaria, Croatia, Russia, Serbia and Montenegro, Moldavia, Slovakia and Ukraine).
*Promotion Policies and Programs:
Regarding promotion programs, a public-private synergy has taken place in this matter. In 2003, the EFIN Group, formed by experts from several Western European countries reached the conclusion that this transport was underexploited and underestimated, it was undergoing a disinvestment, and lacked public policies seeking to boost it. This state of events did not allow to show the benefits of this way of transport –one of the cheapest, most efficient, and clean, from the point of view of environmental health. In 2004, the European Economic and Social Committee pointed out the existing problems and presented an “Pan European inland navigation” panorama.
In 2006, the NAIADES program was launched. This is an action plan for the period 2006 to 2013 for the “Inland Navigation Transport”, the objectives of which are: the market, the fleet, the training, the image, and the infrastructure.
That is to say: 1. Create a market that is wider and more appealing for investors, with new players, and to attract new cargoes, specially those that are now carried by truck. 2. Manage to update the fleets of barges, tugboats, self-propelled boats, and vessels, which are now in a state of obsolescence and must be improved. 3. Obtain more labor for the area, with more training (at present, there is scarce suitable labor offer worldwide, with lack of crew, officers and shipmasters). 4. Implement a marketing system for this very attractive mode of carriage and create an information platform that includes businesses, services, frequencies, statistics, etc. 5. Finally, generate the financial assistance required to carry out the infrastructure works in the navigable waterways, removing the obstacles that prevent their expansion.
In order to develop the market and the image, PLATINA, a VNE diffusion and promotion platform, was created in 2006.
In 2008, EDINNA (European Network of Inland Navigation Schools) was created for the harmonization of educational and training programs for inland navigation personnel.
*Private law
Europe’s “Inland Navigation Transport “ is governed by several legal systems. This is why, in 1997, the CLNI (Strasburg Convention on Limitation of Tort Liability for Inland Navigation with respect to third-party damages) was signed, and, in 2001, also the CMNI (Budapest Agreement related to contract for the transport of carriage through inland waterways) was signed, setting forth the carrier liability in a system that is similar to the Hague Rules. This convention came into force in 2005.
The infrastructure works are financed and carried out by public authority, with respect to their “ Inland Navigation Transport”.
2) America
We are not going to make a comparison against the North American system, because this is beyond the scope of this presentation.
But we are going to focus on the international treaty on the Paraguay-Paraná Waterway, entered into by Argentina, Brazil, Bolivia, Paraguay, and Uruguay, which is an agreement with a partial scope within the framework of ALADI, that involves a 3,442 Km. navigable waterway that connects 5 countries from Puerto Cáceres (Brazil) to Nueva Palmira (Uruguay). However, and in order not to affect the Pantanal –a natural resource transcendental to the environment, located in Brazil- its design has been rethought, and, in practice, navigation takes place more to the south, that is to say, from Corumbá (Brazil), by Asunción and the Ports of Paraná to Nueva Palmira (Uruguay) and/or the Ports of Argentina.
It comprises a 720,000 Km2 area of direct incidence, and 3,500,000 Km2, indirectly, with a population of 40,000,000 inhabitants, which the MERCOSUR affects directly, and integrates physically and geographically.
* Public Law:
From the point of view of the scope of public law, the River Transport Agreement was signed in 1992. It sets forth the free navigability of rivers, freedom of transit, and equality of opportunities for shipowners of member countries, and sets forth the following as executive organs of the Agreement: a) the CIH as the executive body, and b) the Commission with the technical body. Also, the following protocols are applied for better competition: Insurance, Customs, Navigation and Safety, Temporary Change of Flag, Equal Opportunity Conditions.
The purpose of this legal instrument was the sailing of the stretch between Santa Fe –to the north of Argentina- and Corumbá, in Brasil, at a depth of 10 feet, 365 days a year. And it also has the purpose for each country to be in charge of the respective infrastructure works in their national stretch.
All the foregoing instruments have been incorporated to the internal legislation member countries, which ratified them.
Furtherly, regulations have been passed that have not been incorporated into all national legislations of member countries yet.
Even though the tasks performed by the CIH and the Commission have been very important, the transcendental objectives in the matter of harmonization and/or uniformity of legislation have not been achieved yet. And the national regulations and bilateral sailing agreements signed earlier by member countries are still in force.
*Private law
In the matter of private law, the internal laws of each State and the Fluvial Transport Agreement by the HPP continue in force to the extent of their applicability. Many of these sets of rules related to navigation are still incorporated into the old Commercial Codes of the 19th Century.
*Promotion Policies and Programs.
In the matter of infrastructure works, public-private synergy has been the formula applied by the Argentine Republic, a country that has led the process of infrastructure works in the Emilio Mitre navigation Channel of the River Plate, and in the main waterway of the Paraná River, because it has carried out dredging and buoyage works in its oceanic navigation stretch (from Santa Fe to San Martín Port at a draft of 25 feet, and from San Martín Port to the Ocean, at a draft of 34 feet). The public work was subject to an international bidding process and the concession was granted to the private sector from 1996, under the toll system, at its risk. The territorial extension of the works is approximately 700 Km. and it allows the oceanic and fluvial traffic of great vessels.
The other navigable channel in the River Plate is Martín García –which is binational, and has been granted to the private sector under a concession for dredging and buoyage works.
Under an agreement entered into by and between Argentina and Uruguay, in 1999, and through the CARP (Spanish acronym for Management Commission of the River Plate), the works were started, and have now reached a depth of 32 feet.
The news in this matter is that, in 2008, the Argentine State signed a letter of understanding with the private licensee to Emilio Mitre Channel, to start the buoyage and 10-feet dredging tasks from Santa Fe, to the north, to Confluencia –convergence with Paraguay River- for the navigation of barge convoys by towage, under the provisions of the river transport agreement, since now it is possible to sail at a 6-feet depth approximately, and the barge convoys must be gathered and split according to the critical passes and the dimensions of the convoys, as requested by the authorities.
The letter of understanding between the licensor and the licensee was submitted to a Public Hearing and would have recently been granted approval by the Bicameral Committee of the National Congress.
In the same letter of understanding between the Argentine State and the concessionaire (Hidrovía S.A.), it has been agreed to improve the navigation depth for ocean vessels, from a draft of 34 to 36 feet.
In the matter of programs for promotion and investments, the situation of South America differs enormously from the situation in Europe and North America; this is why the private sector has a very important role to play.
In fact, the Port Activities Act No. 24,093 is in force, which allows particulars to install Port facilities. This is a new situation from the legal point of view, which permitted the private investment in Terminals and industrial Plants which process cereals, oils and oilseeds in the area of the ports of Up-River Paraná, transforming Rosario –Argentina- in the main world hub for Soy Crushing.
To sum up, the Paraguay-Paraná Waterway is now under the patronage of the Argentine Republic in the matter of infrastructure works, specially the privatization in the matter of dredging and buoyage, and the legal recognition of private Terminals or Ports, which has given rise to an investment boom in the area of Santa Fe, Rosario and Buenos Aires.
For its part, the Republic of Brazil has just set into operation a system for the opening and privatization, in the matter of dredging; the Republic of Paraguay is in a dredging projects stage. The Republic of Bolivia is developing terminals; and the Republic of Uruguay has taken a firm stake at capitalizing its public ports system with the project of deepening the Martín García Channel.
Given this leading role played by Argentina in general, and the City of Rosario in particular, the Argentine authority –from the public sector- is developing a Paraná River Master Plan in order to raise awareness and find modern solutions for the VNE; and the Rosario Stocks Exchange –from the private sector- has just launched the CUFHID (Commission for the Use and Promotion of the Waterway, of which the undersigned is a member), resembling the “PLATINA” European experience, and the CTT and U.M.W.A. commissions of the United States).
The purpose of these promotion programs is to boost the performance of infrastructure works required in the HPP, specially in the north stretch of Asunción del Paraguay, where there are rocky passes which make difficult and prevent fluent navigation at a 10-feet depth for barge convoys. Also, to create a positive image on the use of the VNE over road transport of cargo and, finally, to obtain private investments to finance port and industrial projects and the renewal of the fleet.
By way of example, we should mention that, in 2007, 15 million tons passed from Cáceres (Brazil) via Rosario, to the Ocean: 5.6 tons of grain and sub-products. from Bolivia and Paraguay; 4 million tons of iron ore coming from Brazil; 2.5 millions of tons of fuel; 800 thousand tons of general cargo, and 500 thousand tons of clinker. Let us, for example, imagine the potential that could be reached in the next years, considering only the exportation of soy from the region, bearing in mind the fact that Paraguay and Bolivia are Mediterranean producers, that Rosario has got the number one industrial complex in the world, and that Uruguay has a first-rate international port system.
Conclusion:
The world has rediscovered hidrovías or inland waterways, as true transport systems to substitute for other modes of transport of cargo, and is ready to develop and optimize them, as they are an effective, economic and environmentally friendly means of transport.
This is very convenient for the transport of heavy cargo, voluminous cargo, indivisible, hazardous cargo, or cargo carried in bulk due to their scarce unit value: grain, wood, iron ore, fuel, fertilizers, sugar, etc.
At the same time, it is an easy means to connect to others, such as railways, vessels, or dry cargo docks. Therefore, the transport of cargo by water on a regional level has developed at great speed and, in Europe, there are SSS (Short Sea Shipping) routesthat prevent the reproduction of innumerable trucks on the roads, for which new cargoes are choosing this means. This is the case of containers in feeder traffic.
The world is facing the change of transport paradigms, and the VNE is an excellent logistic solution, that leads us to generate new legal rules and new answers for its promotion.