Case Relating to the Diversion of the Water From the Meuse

(Series A/B No 70 - Series C No 8I)

Judgment of June 28th, 1937

PARTIES

The Netherlands- Belgium.

DOCUMENT INSTITUTING PROCEEDINGS

Application of the Netherlands' Government, filed with the Registry on August 1^st, 1936, based on Article 36, paragraph 2 of the Statute.

AGENTS AND COUNSEL

MM. Telders (Netherlands), de Ruelle, Delmer, Marcq (Belgium).

COMPOSITION OF THE COURT

M. Guerrero, President; Sir Cecil Hurst, Vice-President; Count Rostworowski, MM. Fromageot, de Bustamante, Altamira, Anzilotti, Negulesco, Jonkheer van Eysinga, MM. Nagaoka, Cheng, Hudson, De Visscher, Judges.

The judgment was given by ten votes to three.

POINTS OF LAW

Interpretation of treaties (clear text; treaty as a whole, purpose, intention of the Parties, priority of object and intent over literal meaning) - Law applicable (lex specialis derogat generali) - Treaties (effects, equality of the Parties; obligation to implement; control of implementation) -General principles of law (equity; inadimplenti non est adimplendum) -Equity - Counter-claim - Damages - Judicial inspection.

Facts

On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of which was "to settle permanently and definitively the regime governing diversions of water from the Meuse for the feeding of navigation canals and irrigation channels.⁽¹⁾ Article I of this Treaty provided for the construction below Maestricht, in Netherlands territory, of a new intake which would constitute "the feeding conduit for all canals situated below that town and for irrigation in the Campine and in the Netherlands.⁽²⁾

The Belgian Government accepted the Treaty not without reluctance, in view of the fact that it provided for only one intake and that to be situated in foreign territory.

When the economic development of the Belgian and Netherlands provinces of Limburg necessitated the enlargement of certain canals and the construction of new works, the two States signed in 1925 a new agreement designed to settle the differences which had arisen in respect of the construction programmes. After the rejection of this agreement by the Netherlands First Chamber, the Netherlands proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the Albert Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren.

As no further progress could be made in the settlement of the points at issue between the two States, the Netherlands initiated proceedings in the Court by means of a unilateral application, based on the declarations made by both the Netherlands and Belgium in which they accepted the compulsory jurisdiction of the Court under Article 36 (a) of the Statute. Belgium, on its part, made a counter-claim.

In the course of the proceedings and at the suggestion of the Belgian Agent, which the Netherlands Agent did not oppose, the Court visited the locality in order to see on the spot the installations, canals and waterways to which the dispute related and to witness practical demonstrations of the operations of locks and installations connected therewith.

Submissions of the Parties

The Netherlands ask the Court in the main to adjudge and declare that the works already carried out by Belgium were contrary to the Treaty of 1863, that the proposed works would be contrary to it and, consequently, to "order Belgium a) to discontinue all the works" listed in the Netherlands' submissions and "to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of that Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from any further such feeding.⁽³⁾

On its part, Belgium asks the Court to declare the Netherlands' submissions ill-founded, as well as to adjudge and declare, in respect of the counter-claim, that the Borgharen barrage was constructed in breach of the stipulations of the Treaty of 1863, that the Juliana Canal is subject to the provisions of the Treaty and, finally, to reserve the rights accruing to Belgium from the breaches so committed.

Summary of the Judgment

Since the questions at issue are governed by the Treaty of 1863, the Court at the outset discards the application to the dispute of the general rules of international river law in favour of the interpretation and application of the Treaty.

The Netherlands maintain that Article I of the Treaty,⁽⁴⁾ which provides for a single feeder, situated in Netherlands territory, gives them the right to supervise and control all the intakes, situated not only in their own territory, but also in Belgian territory. This contention necessarily implies that "the Treaty of 1863 intended to place the Parties in a situation of legal inequality by conferring on the Nether-lands a right of control to which Belgium could not lay claim.⁽⁵⁾ But, in order to allow the existence of such inequality between the Parties to a treaty freely concluded, the text of the treaty must say so in precise terms. In the absence of such terms, the Court rejects the Netherlands' submission.

While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands do not invoke a specific provision of the Treaty. The Court grants that the Treaty has brought into existence a certain régime which results from all its provisions taken together and that, accordingly, it forms a complete whole, the different provisions of which cannot be dissociated from the others and considered in isolation. This is equally the case with Article I which must be interpreted together with the other Articles. In the light of this Article, thus interpreted, neither the Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply, can be accepted in its entirety. Furthermore, the Court, after mentioning the construction by the Netherlands of the Bosscheveld Lock, refuses to admit the Netherlands' complaint about the construction and operation of a lock of which they themselves set an example in the past.

With regard to the supply by Belgium to a section of the Albert Canal of water taken from the Meuse elsewhere than at Maestricht, the Court considers that the origin of the water is irrelevant. Nothing prevents either Belgium or the Netherlands from making such use as they may see fit of the canals covered by the Treaty, when the canals do not leave their own territory. Each of the two States is at liberty in its own territory to modify such canals, to enlarge them, to trans-form them, to fill them in and even to increase the volume of water in them, provided that the diversion of water at the feeder mentioned in the Treaty and the volume of water to be discharged therefrom is not affected. The same reasoning applies to the Netherlands' criticism of the proposed supply by Belgium to a section of another canal of water taken from the Meuse elsewhere than at Maestricht.

Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with the Belgian counter-claims, the first of which concerns the Borgharen barrage. The Court finds that the Treaty does not forbid the Netherlands from altering the depth of water in the Meuse at Maestricht without the consent of Belgium, provided that neither the discharge of water through the feeder, nor the volume of water which it must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It is subject to this condition, and not at their arbitrary discretion, that the Netherlands are entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht. With regard to the alleged interference, by the criticized construction, with the navigability of that part of the Meuse common to both States, the Court considers that Belgium has not produced any proof of it. In reply to the second Belgian submission, which relates to the Juliana Canal, the Court finds that the Treaty was designed to regulate the supply of water to the canals situated on the left bank of the Meuse only. Thus, canals situated on the right bank, such as the Juliana Canal, do not come under the regime of water supply provided for by the Treaty.

For these reasons, the Court rejects both the Netherlands' submissions and the submissions contained in the Belgian counter-claim.

Declaration of M. De visscher

M. De Visscher declares that he is unable to concur in the findings of the Court with regard to the Belgian counter-claim.

Dissenting Opinion of Sir Cecil Hurst

Sir Cecil Hurst criticizes the rejection by the Court of the Belgian counter-claim. From the purpose of the Treaty and the intention of its framers, he draws the conclusion that the quantity of water permitted to be taken from the Meuse depended on a minimum depth of water in the river below Maestricht. This minimum depth of water was to safeguard navigation between Maestricht and Venlo. The construction by the Netherlands of the Borgharen barrage has altered this state of things, thus rendering inapplicable a provision of the Treaty.

With regard to the Juliana Canal, the Court has considered that the Treaty of 1863 applied only to withdrawals of water on the left bank of the Meuse. According to Sir Cecil, it is not because in 1863 there was no canal on the right bank that the intention of the Treaty was not to apply the prohibition contained in Article I to a canal situated on the right bank. If in 1863 navigation on the river below Maestricht was important, and if the purpose of the Treaty was to regulate withdrawals of water with the view to maintain a certain depth of water, the intention could not have been to restrict the effect of the Treaty to the left bank. The clear terms of the Treaty ("pour tous les canaux situés en aval de cette ville") are broad enough to cover canals on the right bank.

Dissenting Opinion of M. Altamira

An interpretation of the Treaty of 1863, different from that taken by the Court, leads M. Altamira to dissent from the judgment with respect to the Neerhaeren Lock.

M. Altamira admits that the obligations contained in the Treaty are "somewhat restrictive," having regard to circumstances which have developed since 1863. But this is not a question for the Court. The Treaty must be observed as it stands, as long as it remains in force. It cannot be adapted to circumstances. Should the latter prove to be of a compelling nature, they would have to be provided for by another legal instrument.

Dissenting Opinion of M. Anzilotti

M. Anzilotti is unable to agree with the rejection by the Court of the Netherlands' submission relating to the Neerhaeren Lock and the Belgian submission concerning the Borgharen barrage.

In a suit the main object of which is the interpretation of a Treaty by reference to certain concrete facts, and in which each of the Parties presented submissions based on a different interpretation, the Court should not have confined itself to a mere rejection of the submissions of the Applicant without at the same time expressing its opinion on those of the Respondent; in any ease, it should have declared whet it considered to be the correct interpretation of the Treaty.

In order to determine whether the construction of the Neerhaeren Lock was or was not in violation of Article I of the Treaty, M. Anzilotti proceeds to interpret this Article. He considers that the object and intent of the Treaty must be given priority over its text; "it is always dangerous to be guided by the literal sense of the words before one is clear as to the object and intent of the Treaty; for it is only in this Treaty, and with reference to this Treaty, that these words - which have no value except in so far as they express the intention of the Parties - assume their true significance.⁽⁶⁾

The fundamental object of the Treaty is to allow the withdrawal from the Meuse of a certain quantity of water, fixed with reference to the level of the river. Another object is to establish a regime for the Meuse capable of maintaining and improving its navigability in spite of the quantity of water which would be extracted from the river.

In the light of these objects, the purpose of Article I cannot be to exclude other feeders. Its object is rather to exclude the supply of water to the canals by water withdrawn elsewhere than at the feeder provided for in the Treaty. Consequently, the functioning of the Neerhaeren Lock, which discharges into a canal water diverted at Monsin in excess of the quantity laid down in the Treaty, is contrary to the Treaty.

With regard to the alternative submission of Belgium, claiming that "by constructing certain works contrary to the terms of the Treaty, the Applicant has forfeited the right to invoke the Treaty against the Respondent,⁽⁷⁾ M. Anzilotti is "convinced that the principle underlying this submission (inadimplenti non est adimplendum) is so just, so equitable, so universally recognized, that it must be applied in international relations also. In any case, it is one of these 'general principles of law recognized by civilized nations' which the Court applies in virtue of Article 38 of its Statute.⁽⁸⁾

Still applying the same interpretation of the Treaty of 1863, M. Anzilotti concludes that the barrage at Borgharen is equally contrary to this Treaty. It remains to be seen whether the fact that Belgium has not suffered any injury as a result of it can defeat the Belgian claim. According to M. Anzilotti, the existence of an injury would be relevant if Belgium had made a claim for damages, but not when it simply asks for the interpretation of the Treaty. The circumstances might have changed since 1863 but the Treaty is still in force and none of the Parties to it is entitled to prevent its execution without the consent of the other Party.

Separate Opinion of Jonkheer Van Eysinga

The dispute submitted to the Court is solely concerned with the interpretation of the Treaty of 1863. This Treaty derogates from the normal state of affairs, according to which the discharge of an international river belongs to that river. The compromise established by the Treaty consists in the withdrawal of large quantities of water from the Meuse for the benefit of Belgium, on the one hand, and the measures to offset the undesirable consequences of that withdrawal, on the other hand.

With regard to the control of such an arrangement, Jonkheer van Eysinga does not admit an alleged unilateral right on the part of the Netherlands, for the right of control "is mutual wherever the convention is mutual.⁽⁹⁾ However, the Netherlands have never claimed for this right of control a scope as wide as that attributed to it by the Belgian argument.

Turning to the specific contentions of the Parties, Jonkheer van Eysinga considers as justified the Netherlands' submissions to the effect that the works already carried out by Belgium are not in conformity with the Treaty. He takes a more qualified attitude towards the Netherlands' submissions concerning the Belgian works in course of completion.

With regard to the Belgian counter-claim, he is of opinion that by establishing the barrage at Borgharen the Netherlands have certainly not violated the Treaty and that the Juliana Canal is situated outside the territorial ambit of the Treaty.

Individual Opinion of Hudson

While he concurs in the judgment of the Court, Mr. Hudson considers that there is room to apply here the principle of equity. "A sharp division between law and equity, such as prevails in the administration of justice in some States, should find no place in international jurisprudence.⁽¹⁰⁾ The question here is of a general principle of law re-cognized by civilized nations in the sense of Article 38 of the Statute, and the Court's recognition of equity as part of international law is in no way restricted by the special power conferred on it to decide a case ex aequo et bono if the Parties so agree. "It would seem to be an important principle of equity that where two parties have assumed an identical or a reciprocal obligation; one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party.⁽¹¹⁾ A tribunal, bound by international law, ought not to shrink from applying a principle of such obvious fairness. In equity, the Netherlands cannot ask Belgium to discontinue the operation of the Neerhaeren Lock when the Netherlands remain free to continue the operation of the Bosscheveld Lock. Neither of these two requests should be granted where the circumstances are such that the judgment would disturb that equality which is equity. If it preserves the equality between the Parties, the judgment may better serve to facilitate their negotiations on the conclusion of a new treaty to replace that of 1863.

Eric Suy

FOOTNOTES

1. P. 9.

2. P. 17.

3. P. 6.

4. See above, p. 874.

5. P. 19.

6. P. 46.

7. P. 49.

8. P. 50.

9. P. 63.

10. P. 76.

11. P. 77.