COUNCIL OF EUROPE ------CONSEIL DE L’EUROPE

Strasbourg, 23 April 1968 CE/Nat (68) 31

COE053425

EUROPEAN COMMITTEE FOR THE CONSERVATION OF NATURE AND NATURAL RESOURCES

Working Party on Flora, Fauna and Landscapes

EUROPEAN DIPLOMA

Legal protection of the Nature Reserve of the Wollmatinger RIed

A. Introduction by the Secretariat B. Opinion of the Directorate of Legal Affairs C. Two memoranda from the German delegation

9693 0 3 .3/58.1 A. INTRODUCTION The manifest European interest of the nature reserve of the Wollmatinger Ried has been recognised by the European Committee and by the Working Party on flora, fauna and landscapes. After considering the report submitted after his on-the-spot appraisal by Mr. Herberigs (CE/Nat (68) 18), the Working Party decided to recommend that the European Committee award the diploma for the nature reserve (CE/Nat (68)-22, point 4(c)(i)).

As regards the legal position of the Wollmatinger Reid, this document contains:

A. The opinion given by the Legal Directorate of the Council of Europe regarding the degree of protection of the reserve; B. Two tekts submitted by the German authorities:

(1) -A report on the legal regulations governing the wild-fowling preserves on the Untersee and on the near Constance, and the possibilities of abolishing this wild-fowling;

(2) A list of principles drawn up by the local administrative authorities for nature conservation and landscape preservation in the area and its surroundings.

B. OPINION OF THE COUNCIL OF EUROPE DIRECTORATE OF LEGAL AFFAIRS

Prom a legal point of view there does not seem to be any. major objection to the granting of the European Diploma to the nature reserve of the Wollmatinger Ried.

The shooting rights are apparently well-defined and limited

The taking of water and the disposal of waster or sewage is a matter for the appreciation of the European Committee. The camping site is only a tiny part of the reserve but do the campers' activities adversely affect the natural amenities As to paragraph 10* of Mr. Herberigs1 report* pleasure boating* it is not clear whether Mr. Herberigs considers the damage so great that the Diploma should not be awarded until the position is regulated by law.

It does not appear wise to insist on guarantees that the situation will not change (see conclusions of the report). The position is that the Diploma would be withdrawn if the protection were reduced.

C. TWO MEMORANDA PROM THE GERMAN DELEGATION

1. "The legal bases and the wild-fowling preserves on the Untersee (Lower Lake) and on the Rhine near Constance and the possibilities of abolishing wild- fowling there11

Report by Dr. Bernhard Everke, Gerichtsreferendar* 2 November 1966 Legal situation of wild-fowling preserves on the Untersee (Lower Lake) and on the Rhine near Constance - possibilities of abolishing wild-fowling there-

I. Report on' the facts On the Untersee (Lower Lake) and on the Rhine near Constance, fishermen and wild-fowlers from the neighbouring municipalities shoot wild-fowl every year during the period from 15 September or 26 October to l4 February.. First* for game shooting over part of the area* the city of Constance issues a licence* the "Konstanzer Wasserjagdkarte" (wild- fowling permit in the Constance area)* which gives the holder the right to shoot wild-fowl: (a) on the Rhine between the month of the Grenzbach and the lower part of the Lohnerhof, and between the Kuhhorn am Fall and the mouth of the Baumlegraben (zone A)j (b) on the islands and along the edge of the fields at the end of the Wollmatinger Ried from Gottlieben to the mouth of the Mtihlegraben (zone B). Secondly, the administrative departments (Landratsamt of Constance) issue a licence, a wild— fowling permit, which authorises wild-fowling in an area called the municipal wild- fowling preserve, which comprises the "surface of the Untersee" (Lower Lake) and the Rhine from a line passing from the Kuhhorn am Fall to the Baumlegraben on the right bank of the Rhine to the point where the south-western extremity of the island of Reichenau (Buchhorn or Klempern) and the church tower of Berlingen are opposite each other in a straight line (paragraph 1 of the Order on wild-fowling (VZO) of 21 June 195^.

About 130 wild-fowling permits are issued on the Swiss side and about thirty on the German side. The birds are mainly moorhens and coots. Until recently a beat, known as the battle of the coots, was held on the first day of the shooting season; nowadays it is held on the third day,

The city of Constance seeks to exclude zones A and B from the common wild-fowling preserves, on the ground that zone B is in a stretch of land comprising an island which is part of Constance and cannot be the subject of an international agreement. Game-hunting rights within the two zones regarded as the game-hunting preserves of Constance are based on "an ancient right guaranteed by a written deed".

On the other hand, the Swiss who practice wild—fowling and the Ministry of Food, Agriculture and Forests of Baden-Wurtemberg consider that the regulations governing the common shooting preserves also apply in zone B. The Baden-Wurtemberg Ministry urged "the Municipality and the Landratsamt of Constance to deliver shooting permits for wild—fowling over Constance preserves only for zone A, but to prohibit game-shooting over the island of Langenrain" (hunting and shooting regulations II, page 57). II. Assessment

(A) Legal bases and the wild-fowling preserves in the"Untersee and on the Rhine near Constance

(1) The Constance wild—fowling preserves (a) Origin of wild— fowling rights

(aa) Zone A ;

By contract concluded on 12 November 1576 between the- Grand Chapter of Constance, Lord of the Village of Wollmatingen, which at that time was part of the island of Reichenau, and the city of Constance, higher jurisdiction and lower jurisdiction including shooting rights "over the Rhin- from the city to the Khhhorn downstream" (cf. paragraph 11 of the contract) were transferred to the city of Constance. The territory on the other bank is demarcated in detail under paragraph 1 of the contract, dating back to 1763, between the "Oberamt Reichenau" and the' city of Constance concerning game-shooting rights over land and water. According to that contract, the area downstream of the said Lohnerhof as far as the municipal boundaries (BSum le or - Trankegraben) were to form part of the Constance wild- fowling' preserve.

Since that date there is no authentic reference to this preserve, either in the Treaty of 20 - 31 October 1854- or in the Order on fishing of 16 November 1861. Nevertheless, the city of Constance includes this area on its map of the Constance game preserves, enacts its own game-shooting regulations and applies to the Constance game preserves the Order on wild- fowling of 1954- (paragraph 4-, page 5 of the regulations governing the Constance wild-fowling preserve).•

(bb) Zone B:

In the agreement between "Oberamt Reichenau'" and .the city of Constance, concluded in 1763 (Appendix 4-),. the game preserve B, i.e. the islands situated at the extremity of the Wollmatinger Ried and the edges of the fields of Gottlieben an far as the Schopfel Road (Allée de Reichenau} near the Chapel of the child Jesus (Kindlebild-Kapelle), 'was ceded to the City of Constance. The two preserves ((A) and (B)) were therefore created as a result of the transfer of the monopoly of game-shooting rights. Whilst game-shooting rights had until then been included among the general personal right granted to inhabitants of the area, they had almost completely been withdrawn from the peasants from the Eranconian period to the beginning of the 16th century. Thus came into being the monopoly of game-shooting rightswhich was independent.of land ownership; from that time onwards, the monopoly belonged to religious foundations .and.princes and was transferable. For the temporal and spiritual rulers this monopoly was a profitable prerogative which at the same time meant that wild-fowling was effectively controlled (cf. Mittèis, Privatrecht, pp. 85 et seq,; Mitteis, Rechtsgeschichte, ppV T67 et seq.; Brtinneck, Jagdrecht, p. 1506 et seqq.). •At the time when the Constance wild-fowling preserves came into being (i.e. during the period of the monopolies).game-shooting rights were therefore granted by the "Oberamt Reichenau" to the city of Constance. It appears from the documents referred to above.that the., exercise of game-shooting rights was granted to the burghers (as regards the ancient customary distinction between game-shooting rights ("droit de chasse") and the right to engage in wild-fowling"("droit à 1 ’exercise' de la chasse"), cf. also Bluntschli, vol. 5, pp. 587 et seq.). The contracts do not define the legal form of the authorisation to shoot wild-fowl given by the city of Constance to fishermen.

However, as it was a question of part of.the.small. .. preserve, and probably of a transfer free of charge, the form may -be assumed to have been either what was - termed "game-shooting'by favour" ("chasse de grâce") or "free game-shooting right" ("droit d e .chasse,à.tir - . libre"). The latter is the more likely, because the game-shooting rights were open not only to a few individual burghers, but to all the burghers (all wild-fbwlers) resident in the city of Constance (as regards the "droit de chasse à tir libre", cf. BrUnneck, pp. 1508 et seq.). The right to engage in wild-fowling granted to the burghers of Constance was not awarded directly by the spiritual holder of the shooting monopoly but indirectly through the partner (the city).

The existence of game-shooting rights in zone B was confirmed by the Government of the Grand-Duchy of Baden on 14- May 1861 (cf. Appendix 7)' and included in paragraph 38,. sub-paragraph 8, of 'the Order on fishing of 1861. This is' surprising as meanwhile the French Revolution and•the meeting of the Constituent Assembly at the Church of St. Paul (Frankfurt-on- Main) had abolished hunting over other people's land. However zone B is not mentioned in the Order on wild-fowling of 1898, nor does-it appear in the 1934-'Order'on wild-fowling. A Land Order concerning wild-fowling on the waters of Constance- was never formally adopted. The game-shooting area B is included on the Constance wild-fowling map (paragraph b, p. 2) and is subject to the same regulations as zone A (i.e. it is also subject to the 1954- Order on wild-fowling).

4-, (dd) Wild-f owl which may be shot: Under paragraph 4- on page 2 of the Constance wild-fowling regulations, it is also permitted to shoot wild duck (except eiders and red-crested pochards), wild geese, divers, grebes and coots.

5• (b) Legal position concerning common wild-fowling rights :

6» (dd) Wild-fowl which may be shot: Under the Order on wild-fowling (paragraph 6) it is permitted to shoot only wild duck (excépt red-crested pochards, eiders and shelduck), mergansers, divers, grebes and coots in the common wild-fowling preserve. However, under paragraph 1 (1) on page 1 of the Order on the close season in Baden-Württemberg, of 13 July 1961, it is prohibited to shoot mergansers. The 1961 Order was enacted later than the wild-'fowling Order of 1954-. Where similar provisions exist the most recent has priority and paragraph 6 of the Order on wild- fowling referring to permission to shoot mergansers is therefore annulled.

In the common shooting preserve the following "birds may therefore be shot: wild duck (except red-crested pochards, eider and shelduck) divers, grebes and coot.

III. Motion for a decision: (A) Preparatory measures to restrict shooting:

1. Request for expert ornithological opinion from ' the ornithological station at Radolfzell regarding the need to create a bird sanctuary in the Ermatinger Becken (Ermatinger Basin).

2. Regular patrolling of the German bank of zone A from the Tr&nkegraben to the lower wall of the Stromeyer factory.

(B) Partial restrictions upon game-shooting: After the attempt to conclude arrangements•or to induce the municipalities to restrict game-shooting rights, the following measures appear the most useful:. 1. Zone B of the Constance wild-fowling preserves: promulgation of a Land Order to include the following:

(a) reasonable reduction of the number of permits is.sued for wild-fowling over Constance waters;

(b) postponement of the opening of the game-shooting season •until the first day of the season for the common wild-fowling area;

(c) restriction of open days to the usual three days for game-shooting in the week; (d) prohibition of the use of decoys. 2. The common wild-fowling area:

The Landratsamt to instruct the Water Police to prohibit a- beat for coots- on the first two days of a game-shooting season when there are over fifty guns.

(C) Measures for the total abolition of game-shooting

1, Zone A: - , Prohibition of wild-fowling .by the.. Landratsamt undqr' paragraph 20 (1) of the Pedêral Law on hunting and shooting (BJG). •

2, Zone B: Abolition of wild-fowling by order of the Regierungspr&sidium (Provincial Administrative Authority) of South Baden, abrogating paragraph 4 (a), sub-paragraph 1, of the "Wollmatinger Ried" Order on nature conservation, subject to the payment of an equitable indemnity to the city of Constance, based on the average revenue for the previous year from wild-fowling' taxation.'

5. Common game-shooting area: • (a) Land Order to deny German wild-fowlers access to the common game-shooting area. (b) Abrogation of the 1954- Order on wild-fowling, and establishment of a protected area for birds by agreement between the Government of the Baden-WUrttemberg Land and the Grand Council of the-Canton of . 2, "Principles for nature conservation and the preservation of landscape in the area ofr Lake Constance and its surroundings TXroa of Lake Constance)" By the Landrhte (local administrative councillors) of the districts of Constance, Stockach, Ueberl'ingen, Ravënsburg, Tettnang and Wangen

Weingarten, 9 October 1967 Dr. Seiterich . Freiherr von Gleichenstein Constance Stockach Schiess MdL. Sailer Ueberlingen Ravensburg

Dr. Diez Dr. Mtlnch Tettnang Wangen im Allga.u

I. Introduction 1. The region of Lake Constance is a particularly well- endoia'ed part of the Baden-WUrttemberg Land in its history, civilisation,' climate and natural beauty. Lake Constance and its surroundings should not be merely a tourist area offering peace and calm.

Its population has a natural right to have a fair share in the general development of the area. This area, the "Regio potamica", should be methodically developed to become an active region but of creative calm as well as of bustling activity.

2. Public administration, economy, tourism, agriculture, forestry and land and water traffic, together with sport and recreation, are factors of importance in the planning ana development of this region. Intellectual and cultural influences especially those of research and education establishments of all levels also play an active part. All these factors have, a bearing on the common task and balance must be preserved in promoting them, none being given priority over another. 3. The' outstanding beauty of the landscape in the area of Lake Constance demands that special attention be given to nature conservation and the' preservation of landscape.

Nature conservation in its broad sense means combining all efforts to preserve natural resources and ensure country planning in a free landscape. It includes the activities of bodies concerned with these matters, especially the departments, responsible for nature' conservation and the independent nature protection associations. The conservation of nature and landscape also helps to fulfil the general purpose-. It is no longer an end in itself: it must serve mankind by making a significant contribution of great social importance to the safeguarding of man's physical and mental health, his mind and spirit.

Nature conservation does not simply mean the total preservation of the status quo. On the contrary, it gives . rise to compelling new lines of'thought and-action aimed at achieving order and paving the way for the future.

II.- Organisational questions 1. Nature conservation is a branch of administration just as important- as- the traditional special fields of competence of the LandratsSmter (Landkreis - rural district administrative authoritie-s) and their departments. The departments immediately responsible for nature conservation should be so organised as regards staff, premises and fields - of activity that they are able to master their increasingly numerous and important tasks.

2. By agreement with the Landkreise (rural districts) concerned, the powers of the Kreis representative for - nature conservation and landscape protection should be expanded, as either a secondary or a primary responsibility by extending his geographical purview if necessary. 5* Current nature conservation practice is also increasingly concerned with countryside planning. . The representative of the Ereis should therefore be assisted by particularly well-qualified landscape architects.

4, In the most important nature and landscape conservation areas, there should be an adequate number of qualified supervising staff. 5. The nature conservation associations of the region , of Lake Constance should be given every encouragement and support, including adequate funds,

III. Principal specific aims 1. The practice of camping should be governed by clear regulations which meet the requirements of the law. For impei'ative sanitary reasons, it will be essential to prohibit camping outside the sites reserved for the purpose.

2. The same considerations apply to the regulation of bathing in Lake Constance and to the consumption of water by the public. 3. Where gravel, sand., stones and earth are quarried, great importance should be attached to the replanting of the 3.and exploited. Current legal provisions should be strictly enforced. Funds should be made available to meet the financial implications. 4. Every municipality has the right to sufficient space in which to expand.

When building plans are being drawn up steps must be taken to ensure that all building is prohibited in green-belts of adequate area between towns, on the shore of the lake as well as inland. No more building should be permitted in the shore area.

Building regulations in the outer area must be strictly observed. Building on spurs and outcrops and in other elevated areas overlooking the countryside will not be authorised. 5. Existing bind sanctuaries must be protected against any encroachment on their area and against all harmful acts.

6. A large wild-fowl reserve in the Ermatinger Basin (between the Wollmatinger Ricd , the island of Reichenau and the Swiss bank) should be established.

7. The public authorities should allocate sufficient funds to purchase 'stretches of land on the lake shore which are particularly worthy of protection.

8. The lake-side is far too precious an amenity for building of weekend chalets to be permitted.

9. The Mindelsee should -remain wholly untouched and preserve its absoluté- calm. As owner of the lake, the Land should assume specific commitments in this respect.

10. It is most desirable that all measures, especially municipal action, with the assistance of the Land, be taken to ensure that Lake Constance is kept clean.

All riparian property owners on Lake Constance should take part in measures to prevent pollution of the lake by undertaking to carry out the provisions of agreements or arrangements. 11. The region of Lake Constance offers facilities for creating nature parks. 12. Strict measures should be taken to restrict the noise and speed of motor-boats on the lake.

13. Those parts of the lake shore area which are not built over should, in so far as they meet the requirements of the law, be classified as either nature reserves, protected landscapes or natural sites and monuments.