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[p.209]
The Court,
composed as above,
delivers the following Judgment:
By a letter of 26 November 1957 received in the Registry on 27 November, the
Minister for Foreign Affairs a.i. of the Netherlands transmitted to the
Registry a certified true copy of a Special [p 211] Agreement concluded
between the Government of the Kingdom of Belgium and the Government of the
Kingdom of the Netherlands, signed at The Hague on 7 March 1957, Articles 1
to IV of which are as follows:
"Article I
The Court is requested to determine whether sovereignty over the plots shown
in the survey and known from 1836 to 1843 as Nos. 91 and 92, Section A,
Zondereygen, belongs to the Kingdom of Belgium or the Kingdom of the
Netherlands.
Article II
Without prejudice to any question as to the burden of proof, the Contracting
Parties agree, having regard to Article 37 of the Rules of Court, that the
written proceeding should consist of:
I. a Memorial of the Kingdom of Belgium to be submitted within three months
of the notification of the present Agreement to the Court in pursuance of
Article III below;
2. a Counter- Memorial of the Kingdom of the Netherlands to be submitted
within three months of delivery of the Memorial of the Kingdom of Belgium;
3. a Reply of the Kingdom of Belgium followed by a Rejoinder of the Kingdom
of the Netherlands to be delivered within such times as the Court may order.
Article III
Upon the entry into force of the present Agreement, it shall be notified to
the Court under Article 40 of the Statute of the Court by the Kingdom of the
Netherlands.
Article IV
The present Agreement shall be subject to ratification.
The instruments of ratification shall be exchanged as soon as possible in
Brussels and the present Agreement shall enter into force immediately upon
the exchange of those instruments."
The Minister for Foreign Affairs a.i. of the Netherlands attached to his
letter a certified true copy of the Certificate of the exchange of
instruments of ratification of the Special Agreement, which took place at
Brussels on 19 November 1957.
Pursuant to Article 33, paragraph 2, of the Rules of Court, the Registrar at
once informed the Belgian Government of the filing of the Special Agreement.
In accordance with Article 34, paragraph 2, of the Rules of Court, copies of
it were transmitted to the other Members of the United Nations and to
non-Member States entitled to appear before the Court.
By an Order of 12 December 1957, time-limits for the filing of the Memorial
and Counter-Memorial were fixed in accordance with [p 212] the proposals
made by the Parties in paragraphs I and 2 of Article II of the Special
Agreement. At the request of the Netherlands Government and with the
agreement of the Belgian Government, the time-limit for the Counter-Memorial
was extended by an Order of 27 May 1958. The time-limits for the filing of
the Reply and Rejoinder were fixed by an Order of I July 1958.
These pleadings having been filed within the time-limits fixed by these
Orders, the case was ready for hearing on 31 March 1959.
Hearings were held on 27, 28 and 29 April and on 1, 2, 4 and 5 May 1959, in
the course of which the Court heard the oral arguments and replies of M.
Devadder and Me Grégoire on behalf of the Government of the Kingdom of
Belgium, and of M. Riphagen and Me Wijckerheld Bisdom on behalf of the
Government of the Kingdom of the Netherlands.
In the course of the written and oral proceedings, the following submissions
were presented by the Parties:
On behalf of the Belgian Government, in the Memorial: May it please the
Court to adjudge and declare that:
"sovereignty over the plots shown in the survey and known from 1836 to 1843
as Nos. 91 and 92, Section A, Zondereygen, belongs to the Kingdom of
Belgium".
On behalf of the Govemment of the Netherlands, in the Counter-Memorial :
May it please the Court to adjudge and declare that:
"sovereignty over the plots shown in the survey and known from 1836 to ,1843
as Nos. 91 and 92, Section A, Zondereygen, belongs to the Kingdom of the
Netherlands".
These submissions were maintained by the Parties in the Reply and in the
Rejoinder and during the oral proceedings.
By the Special Agreement the Court is requested to determine whether
sovereignty over the plots shown in the survey and known from 1836 to 1843
as Nos. 91 and 92, Section A, Zondereygen, belongs to Belgium or to the
Netherlands.
The frontier between the two States in the area where the two plots in
dispute are situated presents certain unusual features. Whilst the frontier
in general is a linear one, in the area north of the Belgian town of
Turnhout there are a number of enclaves formed by the Belgian commune of
Baerle-Duc and the Netherlands commune of Baarle-Nassau.
The territory of the Belgian commune of Baerle-Duc is not continuous. It is
made up of a series of plots of land, many of which [p 213] are enclosed in
the Netherlands commune of Baarle-Nassau. Various pieces of the commune of
Baerle-Duc are not only isolated from the main territory of Relgium but also
one from another. Neither is the territory of the commune of Baarle-Nassau
continuous: that commune has enclaves within Belgium. The Court is informed
that the origin of this situation is very ancient.
In 1826, when the Netherlands and Belgium were a single Kingdom, a proposal
was made to fix the boundaries between the two communes. A minute of
delimitation, drawn up on 10 September of that year, to which was appended a
map,-proposed a continuous boundary for Baarle-Nassau, the abolition of
enclaves within its territories and compensation in land. This proposal was
abandoned as it was rejected by the commune of Baerle-Duc.
In 1836, an attempt was made by the burgomasters of the two communes to
establish the exact boundaries between the two communes in order to secure
an equitable allocation of land tax. In that year, the burgomasters, with
their officials, proceeded to establish as exactly as possible the division
that had existed from the earliest times between the plots of land enclosed
within these communes. They established a Minute which is dated 29 November
1836, but which was not completed until about the middle of 1839. It was
finally signed on 22 March 1841. It is hereinafter referred to as the
"Communal Minute".
This Minute was drawn up in two original copies to be deposited in the
archives of each of the two communes. What purports to be one of these
original copies has been produced by the Netherlands.
The copy produced by the Netherlands states under "Section A called
Zondereygen" as follows:
[Translation]
"Plots numbers 78 to 111 inclusive belong to the commune of Baarle-Nassau."
The Communal Minute was not established without difficulty. For a
considerable time the commune of Baerle-Duc refused to sign it. In some
respects the decisions taken in 1836 left some doubt and did not satisfy
either commune. Considerable effort appears to have been made to remove
mistakes. The Communal Minute itself provided that any errors therein could
be corrected by common accord. There seems to have been no intention that
the Communal Minute should constitute an immutable document.
The separation of Belgium from the Netherlands was sanctioned by the Treaty
of London of 19 April 1839. Under the terms thereof, [p 214] a Mixed
Boundary Commission was set up to fix and determine the limits of the
possessions of the two States.
This Commission was already engaged upon its work at the time when the
Communal Minute was signed in March 1841. Shortly thereafter, it directed
its attention to the situation existing between the two communes and
continued to do so till the end of 1841. It then discontinued its labours
and they were not resumed until early 1843.
During this interval the two Governments had, on 5 November 1842, signed a
Boundary Treaty which entered into force on 5 February 1843. They had
considered it necessary to intervene to settle by their common agreement
certain questions relating to the determination of the frontier. It should
here be recalled that on 4 September 1841 the Belgian Government had
rejected a proposal to settle, by means of mutual exchange of territories,
the situation in respect of the communes of Baerle-Duc and Baarle-Nassau,
and had declared in favour of the maintenance of the status quo.
Accordingly, Article 14 of this treaty stated:
[Translation]
"The status quo shall be maintained both with regard to the villages of
Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and with regard to the
ways crossing them."
Article 70 stipulated that the Mixed Boundary Commission should "draft the
convention ... in accordance with the foregoing provisions...".
The work of the Mixed Boundary Commission resulted in the text of a Boundary
Convention dated 8 August 1843, ratifications of which were exchanged on 3
October 1843. Articles 1, 2 and 3 of this Convention provided as follows:
[Translation]
"Article I. The frontier between the Kingdom of the Netherlands and the
Kingdom of Belgium stretches from Prussia to the North Sea.
This frontier, which is divided into three sections, is defined in an exact
and invariable way by a Descriptive Minute, drawn up according to the
detailed survey maps, drawn to a scale of 1/2,500, and by means of
examinations made on the spot by commissioners delegated for that purpose.
However, as an exception, the maps to a scale of 1/10,000 have been
considered sufficient to show that part of the frontier formed by the Meuse
and the Scheldt.
The same is the case for the communes of Baarle-Nassau (Netherlands) and
Baerle-Duc (Belgium) in regard to which the status quo is maintained in
virtue of Article 14 of the Treaty of 5 November 1842.
A special map, in four sheets, comprising the whole survey, plot by plot, of
these two communes, has been drawn up to a scale of 1/10,000 and to this map
are annexed two separate sheets [p 215] showing, to the scale of 1/2,500,
such parts of those two communes as a smaller scale would not show clearly.
Article 2. Topographical maps, to the scale of 1/10,000, designed to show
the frontier as a whole and in relation to bordering localities, have been
prepared in sections, as follows:
On the Netherlands side, by means of survey maps, lists of particulars, and
examinations on the spot, so far as these were necessary to determine the
frontier;
On the Belgian side, by means of survey maps and examinations on the spot,
covering the whole of the Belgian part.
These maps take in the whole of the frontier, to an average depth of 2,400
'aunes' (metres).
Article 3. The descriptive minute, the detailed survey maps and
topographical maps, scale 1/10,000, prepared and signed by the
Commissioners, shall remain annexed to the present Convention and shall have
the same force and effect as though they were inserted in their entirety."
The descriptive minute referred to in Article 3 contains an article, Article
90, relating to the communes of Baerle-Duc and Baarle-Nassau: this Article
is referred to in the present Judgment as the "Descriptive Minute". The
special map relating to the disputed plots, being one of the maps referred
to in Articles I and 3, was produced before the Court on behalf of the
Belgian Government at the hearing on 2 May 1959.
Article 14, paragraph 5, of the Boundary Convention provides:
[Translation]
"On reaching the said communes of Baerle-Duc and Baarle-Nassau, the boundary
is interrupted in consequence of the impossibility of drawing a continuous
line between these two communes, in view of the provisions of Article 14 of
the Treaty of 5 November 1842, which says:
'The status quo shall be maintained both with regard to the villages of
Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and with regard to the
ways crossing them.'
The division of these two communes between the two Kingdoms is the subject
of a special study.
(Article 90 of the Descriptive Minute.)"
The Descriptive Minute is made up of two parts. The first determines the
procedure used when the demarcation of the frontier reaches the temtory of
the communes of Baarle-Nassau and Baerle-Duc. It reads as follows:
[Translation]
"As regards these two communes the boundary commissioners:
In view of Article 14 of the Treaty of 5 November 1842 worded as follows: [p
216]
'The status quo shall be maintained both with regard to the villages of
Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and with regard to the
ways crossing them.'
Considering that the present situation of these places, maintained by the
provision of Article 14 above, does not allow of a regular delimitation of
the two communes in question ;
Considering, however, that it may be useful to note what was established
with the agreement of both sides, by the Minute of 29 November 1836, agreed
to and signed on 22 March 1841 by the local authorities of the two communes.
Decide :
a. The above-mentioned Minute, noting the plots composing the communes of
Baerle-Duc and Baarle-Nassau, is transcribed word for word in the present
Article.
b. A special map, in four sheets, showing the whole detailed survey plot by
plot of the two communes, on a scale of 1/10,000, has been made, and to this
map have been annexed two separate sheets showing on a scale of 1/2,5oo
those parts of the communes which a smaller scale would not show clearly."
The second part, expressed in Dutch, follows the text of the Communal
Minute. Instead, however, of the words appearing in the Communal Minute in
the copy thereof produced by the Netherlands, namely:
[Translation]
"Plots numbers 78 to III inclusive belong to the commune of Baarle-Nassau",
there appears the following:
[Translation]
"Plots numbers 78 to go inclusive belong to the commune of Baarle-Nassau.
Plots numbers 91 and 92 belong to Baerle-Duc.
Plots numbers 93 to in inclusive belong to Baarle-Nassau FN1. "
------------------------------------------------------------------------------------------------------------
FN1 Translation of the text reproduced in the Rejoinder of the Netherlands
Government, Vol. II, p. 79. The text reproduced in the Memorial of the
Belgian Government, p. II, is as follows:
[Translation]
"Plots numbers 78 to go inclusive belong to the commune of Baarle-Nassau.
Plots numbers 91 and 92 belong to the commune of Baerle-Duc.
Plots numbers 93 to III inclusive belong to the commune of Baarle-Nassau. "
------------------------------------------------------------------------------------------------------------
The special map referred to in Article I of the Boundary Convention and
which, in accordance with Article 3 thereof, has the same force and effect
as though inserted therein, shows the disputed plots as belonging to
Belgium.
The Belgian Government relies upon the above quoted terms of the Communal
Minute as they appear in the Descriptive Minute annexed to the Boundary
Convention and as having the same force and effect as if inserted therein,
for the purpose of showing that the [p 217] disputed plots have thus been
recognized as belonging to the commune of Baerle-Duc. It follows, in its
view, that in accordance with the terms of the Boundary Convention
sovereignty over these plots belongs to Belgium.
On its side, the Netherlands Government itself claims to have a title to
sovereignty over the disputed plots and at the same time it challenges the
validity of the title invoked by the Belgian Government. It relies upon the
following grounds:
In the first place, it maintains that the Boundary Convention of 1843 did
not by its terms do any more than recognize the existence of the status quo
and did not determine what that status quo was; that accordingly the status
quo must be determined in accordance with the Communal Minute under which
sovereignty over the disputed plots was recognized as vested in the
Netherlands.
Alternatively, the Netherlands Government maintains that, even if the
Boundary Convention purported to determine the sovereignty over the disputed
plots, this was vitiated by mistake and did not carry out the intention of
the Parties. It contends that a mere comparison between the terms of the
Communal Minute and the Descriptive Minute establishes this. It states that
it is not necessary to establish the origin of the mistake because the
mistake itself is apparent on the face of the two documents. In support,
however, of its contention that a mistake did occur, it advances an
hypothesis, as to the origin and consequences of the alleged mistake, which
will be adverted to later.
As a further alternative, the Netherlands Government submits that, should it
be held that the Boundary Convention determined the sovereignty in respect
of the disputed plots and is not vitiated by mistake, acts of sovereignty
exercised by it since 1843 over the plots have displaced the legal title
flowing from the Boundary Convention and have established sovereignty in the
Netherlands.
The Court will proceed to deal with these three grounds in the order in
which they have been presented by the Netherlands.
***
Did the Boundary Convention itself determine sovereignty over the disputed
plots or did it confine itself to a reference to the status quo?
At its 174th meeting held on I December 1841 the Mixed Boundary Commission
took note of the difficulty which had prevented it from proceeding to a
continuous boundary delimitation between Baarle-Nassau and Belgium, which
was due "to the very special situation of the territories of Baarle-Nassau
and Baerle-Duc which consist of intermingled plots of land". It was decided
to proceed to the verification of the work of a Sub-Commission which had
been[p 218] deputed "to establish the sovereignty of each power over the
plots of land which form the territory of these communes".
The work and deliberations of the Sub-Commission are recorded in what is
known as the Achel Minute, dated 26 October 1841. The Sub-Commission therein
reported that because of the decision of the Belgian Government that the
status quo was to be maintained, it was not able to apply to the
"delimitation" between the communes "the same methods and types of
operations used for the rest of the frontier line", and for that reason
agreed to act as follows:
(a) "It not being possible to effect a delimitation properly so called
without infinite difficulty and serious drawbacks", all that could be done
was to "recognize and note" which were the plots which belonged to the
Netherlands and Belgium respectively.
(b) The Communal Minute should be taken as the basis for the separation of
the territories of the two communes.
(c) It was therefore decided and accepted by both sides that the territory
of the Netherlands commune of Baarle-Nassau consisted of certain enumerated
plots or parts of plots and, in the same way, the Belgian territory of
Baerle-Duc consisted of certain enumerated plots or parts of plots. Under
this enumeration, the disputed plots were attributed to Baarle-Nassau.
At the 175th meeting of the Mixed Boundary Commission held on 2 December
1841 the examination and verification was continued. It was decided that the
Achel Minute should be an annex to the minutes of that meeting and that the
proposals to be made for Baarle-Nassau and Baerle-Duc by the Mixed Boundary
Commission should be inserted textually in the minutes of the meeting. Under
the heading: "Separation of the territories of the communes of Baarle-Nassau
(Netherlands) and Baerle-Duc (Belgium)", paragraph I reads: "It not being
possible without the very greatest difficulty to effect a delimitation
properly so called as between these two communes, all that can be done is to
recognize and designate the plots ... which belong respectively to the
commune of Baarle-Nassau (Netherlands) and the commune of Baerle-Duc
(Belgium)."
At its 176th meeting held on 4 December 1841, after the Mixed Boundary
Commission had continued the examination and verification of the work of the
Sub-Commission and after discussion, the following paragraph was added:
[Translation]
"Paragraph 2:
The plots which should belong to each of the two States are therefore
recognized and designated by their number and Section in the Survey as
follows: [p 218]
Plots forming the commune of Baarle-Nassau (Kingdom of the Netherlands)..."
Here they are set out and include the disputed plots.
[Translation]
"Plots forming the commune of Baerle-Duc (Kingdom of Belgium)..”
Here they are set out and do not include the disputed plots.
The Mixed Boundary Commission did not take up the matter again until its
208th meeting, held on 23 February 1843. In the meantime, the Treaty of 5
November 1842 had been ratified.
Up to this point of time, the following conclusions emerge from a perusal of
the Minutes:
From 4 September 1841, the work of delimitation proceeded on the basis of
the maintenance of the status quo. Because of this, it was not possible to
establish any regular and exact delimitation of boundaries between the
Netherlands and Belgium. Methods and types of operation differing from those
pursued in respect of the rest of the frontier line had to be adopted to
delineate the boundaries between the two communes and by so doing between
the two States. These methods and types of operation consisted of
recognizing and designating the plots which belonged to the Netherlands on
the one hand and Belgium on the other. For these purposes a survey was used.
The Mixed Boundary Commission carefully examined and verified the work of
separation of the territories of the two communes. The Communal Minute was
taken as the basis of its labours.
When the work of delimitation of boundaries was resumed by the Mixed
Boundary Commission at its 208th meeting on 23 February 1843, it took note
of the Treaty of 5 November 1842. Since the Commission had, from 4 September
1841 onwards, based its labours on the maintenance of the status quo and
since the said Treaty did not modify this position, it was agreed that the
work would begin with the definitive revision of its previous minutes
describing the boundary.
At the 209th meeting held on 3 March 1843, it was decided that the
Presidents of the respective Boundary Commissions should take immediate
steps for the preparation and for fair copies of maps of the plots which had
become necessary as the result of the Treaty of 5 November 1842 and that the
Descriptive Minute should be revised and completed by one of several
sub-commissions, which should submit the result of its work for the approval
of the Commission.
The minutes of the 211th meeting of the Mixed Boundary Commission held on g
March 1843 indicate that it met to consider the course which should be
followed regarding the villages of Baarle-[p 220]Nassau and Baerle-Duc, and
that after discussion it was decided that:
(1) The boundary of the communes should not be described, the regular
description of the boundary line should stop at a certain point and be
resumed again at a certain point; and
(2) The Descriptive Minute of the second section of the Convention should
include one or several articles referring, by their numbers and section in
the Survey, to all the plots of which the sovereignty belongs to one State
or the other, in conformity with the minute of the 176th meeting.
The problem of the separation of the two communes had been in the hands of a
sub-commission. At its 220th meeting held on 27 March 1843, the Mixed
Boundary Commission had before it a draft proposed by that sub-commission.
The discussion was to be taken up at a future meeting. Ample notice of the
draft which subsequently came before the 225th meeting was thus given to
both Parties.
At that meeting held on 4 April 1843 the Mixed Boundary Commission resumed
consideration of the "description for the communes of Baarle-Nassau and
Baerle-Duc". It annulled its Minutes of the 175th and 176th meetings which
attributed the disputed plots to the Netherlands. It adopted the text of an
article which provided, in the terms appearing in the first part of the
Descriptive Minute, for the transcription word for word of the Communal
Minute and for the preparation of detailed survey maps. Thereby it
attributed the disputed plots to Belgium.
The importance of these detailed survey maps must have been obvious to both
the Netherlands and Belgian Commissions. The Mixed Boundary Commission
recognized the necessity for detailed survey maps, which of their nature
require most careful preparation and checking. These maps, in which the
disputed plots are shown as belonging to Belgium, were designed to become
and did become part of the Convention and, in accordance with Article 3
thereof, had the same legal force as the Convention itself.
The Mixed Boundary Commission did not confine itself to a mere reference to
Article 14 of the Treaty of j November 1842 and to the status quo whatever
it was. From the record of its proceedings as disclosed in the minutes, it
appears that the Commission went much further and proceeded to delimit the
boundaries between the two States in respect of the two Baarles in the only
way which was open to it.
In fact this was what the Commission had been doing from 4 September 1841
when Belgium declared in favour of the maintenance of the status quo, as
appears clearly from the letter from the President of the Netherlands
Commission of 16 December 1841 to the Netherlands Foreign Minister in which
he stated: [p 221]
[Translation]
"the two sub-commissions, at the time of their work on the spot, had
therefore to confine themselves to drawing up a Minute of Separation of the
territories of the two enclosed communes and that therefore they were not
able to fix a continuous and uninterrupted line between Baarle-Nassau and
Belgium ... it was decided to reconsider the Minute of the Separation of the
Territories, which was previously established in agreement by the respective
local administrators of the two communes ... so that if necessary the Minute
in question could be incorporated in the Boundary Conventian to be drawn up
and so as to decide which parts of these enclosed communes should
henceforward belong to the Netherlands and which parts should belong to
Belgium."
This letter, read together with that of the Burgomaster of Baerle-Duc of 23
December 1841 to the President of the Belgian Boundary Commission, where he
speaks of studies and researches then being carried out "to form the line
dividing the plots in these communes" and states that "there are certain
disputed points in the Minute of 22 March 1841 and it will be difficult to
complete the work because on a number of different points we and the
communal administration of Baarle-Nassau are unable to agree...", provides
clear contemporaneous evidence of the nature of the task on which the Mixed
Boundary Commission was engaged.
The authority of the Mixed Boundary Commission to demarcate the two communes
was, in the view of the Court, beyond question. It follows from Article 6 of
the Treaty between the Netherlands and Belgium concluded at London on 19
April 1839, which provides:
"In consideration of the territorial arrangements above stated, each of the
two Parties renounces reciprocally and for ever, all pretension to the
Territories, Toms, Fortresses, and Places, situated within the limits of the
possessions of the other Party, as those limits are described in Articles 1,
2 and 4.
The said limits shall be marked out in conformity with those Articles, by
Belgian and Dutch Commissioners of Demarcation, who shall meet as soon as
possible in the tom of Maestricht."
This is confirmed by the Preamble to the Boundary Convention of 8 August
1843, which recites that:
"... The King of the Netherlands ... and ... the King of the Belgians,
taking into consideration the Treaty of 19 April 1839, and wishing to fix
and regulate all that relates to the demarcation of the frontier between the
Kingdom of the Netherlands and the Kingdom of Belgium, have for this
purpose, and in conformity with Article 6 of the said Treaty, appointed as
their commissioners the following:... [the names of the Commissioners
appointed follow]."
This statement represents the common intention of the two States. Any
interpretation under which the Boundary Convention is regarded as leaving in
suspense and abandoning for a subsequent appreciation of the status quo the
determination of the right of one [p 222] State or the other to the disputed
plots would be incompatible with that common intention.
The Court reaches the conclusion that the Boundary Convention was intended
to determine, and did determine, as between the two States, to which State
the various plots in each commune belonged. Under its terms, the disputed
plots were determined to belong to Belgium.
***
The Court will now proceed to an examination of the contention of the
Netherlands that the Convention is vitiated by mistake.
This contention may be stated as follows:
The Descriptive Minute, after reciting "that it may be useful to note what
was established with the agreement of both sides, by the Minute of 29
November 1836, agreed to and signed on 22 March 1841 by the local
authorities of the two communes", stated that "the above-mentioned Minute,
noting the plots composing the communes of Baerle-Duc and Baarle-Nassau, is
transcribed word for word in the present Article". A comparison of the copy
of the Communal Minute produced by the Netherlands with the Descriptive
Minute discloses that there was not a "word for word" transcription of the
former, inasmuch as the Descriptive Minute attributed the disputed plots to
Belgium, whereas this copy of the Communal Minute attributed them to
Baarle-Nassau. Therefore, the Netherlands contends, it follows that there
was a mistake and that that mistake vitiates the Convention in this respect.
The Court does not consider that a mere comparison of these two documents
establishes any such mistake. Under the terms of the Boundary Convention,
sovereignty over the disputed plots is vested in Belgium. The only question
is whether a mistake, such as would vitiate the Convention, has been
established by convincing evidence.
To succeed on the basis of the alleged mistake, the Netherlands must
establish that the intention of the Mixed Boundary Commission was that the
Descriptive Minute attached to and forming part of the Convention of 1843
should set out the text of the Communal Minute contained in the copy
produced by the Netherlands, and that this intention was defeated by the
transcription in the Descriptive Minute of a different text, which, contrary
to the text of that copy and the intention of the Mixed Boundary Commission,
attributed the disputed plots to Baerle-Duc instead of to Baarle-Nassau.
The duty of the Mixed Boundary Commission was to determine and fix the
limits of fhe possessions of the two States. So far as the two communes were
concerned, the essence of its task was to determine the status quo. In order
to discharge its duty, the Commission, directly and through sub-commissions,
made examinations on the [p 223] spot, had recourse to researches, records
and surveys, verified the findings of the sub-commissions and carefully
checked its own labours.
On 26 October 1841 the Commissioners delegated by the Mixed Boundary
Commission drew up the Achel Minute in which plots 91 and 92 were attributed
to Baarle-Nassau. On the following day, 27 October 1831, the Belgian
Commissioner, Viscount Vilain XIIII, writing from Achel, addressed a letter
to the Burgomaster of Baerle-Duc. It read as follows:
"The boundary minute for the commune of Baarle-Nassau shows, in the section
known as Sondereggen, that the plots Nos. 91 and 92 belong to the commune of
Baerle-Duc. Our commune's minute does not mention them. Would you kindly
reply to me at Maastricht letting me know whether in fact these two plots
belong to Baerle-Duc."
The reply to this letter is not before the Court. But that a divergence in
fact existed in relation to plots 91 and 92 between the two copies of the
Communal Minute mentioned in that letter is confirmed by a letter of 31
October 1841 from the President of the Netherlands Commission to the
Netherlands Minister for Foreign Affairs in which the former stated that
"... at our meeting at Achel on the 26th of this month, we signed the minute
determining and fixing the bounds of the two enclaved communes... As regards
details, I have the honour to submit herewith a copy containing a few formal
changes..." This copy was produced during the hearings. It sets out a number
of articles under the heading "Minute of the separation between the
territories of the communes, etc.", Article 4 of which reads:
"It is therefore agreed and accepted, on both sides, by the delegates of the
Mixed Commission that the territories of the two communes of Baarle-Nassau
and Baerle-Duc consist of the plots or parts of plots shown in the following
table..."
This table is in the form of vertical columns. Under Section A Zondereygen
appears the following:
Nos. of plots
To the Netherlands To Belgium
62 to 67 inclusive
entirely
68 to 77 inclusive
entirely
78 to 90 inclusive
entirely
91 and 92
entirely
93 to III inclusive
entirely
The attribution of the disputed plots to Belgium in this document was
different from the attribution made in the Achel Minute and there can be
little doubt that the reason was that the copy of the Communal Minute then
in the possession of the President of the [p 224] Netherlands Commission
attributed these plots to Baerle-Duc and that in his report he followed the
text of that copy.
The Court draws the conclusion from these documents that the two copies of
the Communal Minute held by the Netherlands and Belgian Commissions were at
variance on the attribution of the disputed plots to the two communes. There
is no satisfactory explanation how a text—which according to the copy of the
Communal Minute produced by the Netherlands consists of one paragraph
reading "plots numbers 78 to III inclusive belong to the commune of
Baarle-Nassau”—could have by mistake been broken up into three separate
paragraphs giving a different attribution to the disputed plots.
The President of the Netherlands Commission had received a copy of the
Communal Minute which had not then been signed. It was described by him in
his letter to the Governor of North Brabant of 16 March 1841 as "a most
important document". Later, he personally went to both communes and learned
that the Minute had been signed a few days before. To the copy which had
been sent to him he at once added the names of the signatories, and it was
"signed and stamped as being authentic by the municipality of
Baarle-Nassau". (Letter of 5 April 1841 from the President of the
Netherlands Commission to the Governor of North Brabant.)
The Netherlands has suggested that this copy contained in manuscript not one
but three paragraphs dealing respectively with plots 78 to go, 91 and 92,
and 93 to III as they appear in the Descriptive Minute, but that this copy
was not an authentic copy. It suggests that the commune of Baarle-Nassau,
when certifying it as an authentic copy, could not suppose that an error had
already crept into it. A further collating of the two documents would, it
was urged by the Netherlands, have entailed a great deal of work.
To explain how the Netherlands Commission's authenticated copy was in the
same terms as those used in the Descriptive Minute, the Netherlands advances
the following hypothesis. The Controller of the Survey at Bois-le-Duc
(Netherlands) made a mistake in 1840 as to the numbers of the different
plots, disregarding the fact that a renumbering of plots had taken place in
the Netherlands survey, and altered a copy of the Communal Minute which copy
or a copy of it subsequently found its way to the Netherlands Commission. In
that copy the disputed plots were attributed, by this official's mistake, to
Baerle-Duc, in the form in which the entry appears in the Descriptive
Minute.
The material placed before the Court in support of this hypothesis fails to
establish it; nor does it appear to the Court that the hypothesis is a
plausible one. [p 225]
The Netherlands contends however that it need not establish the origin of
the mistake, since a simple comparison between the copy of the Communal
Minute produced by it and that appearing in the Descriptive Minute reveals
sufficiently that a mistake occurred. The matter is not, however, capable of
being disposed of on this narrow ground. The Court must ascertain the
intention of the Parties from the provisions of a treaty in the light of all
the circumstances.
As of April 1843, the position was as follows: Since October 1841, both
Commissions were in possession of copies of the Communal Minute. These
copies differed in relation to the attribution of the disputed plots. This
difference was known to the two Commissions and must have been a subject of
discussion between them in 1841. The divergence between their copies could
hardly have been overlooked in April 1843 by the two Commissions and by
their respective staffs. The divergence must have been known to the Mixed
Boundary Commission from 1841 onwards. Detailed survey maps of the commune
of Baarle-Nassau with a map of that part of Baerle-Duc which was included
therein according to the Communal Minute, had been prepared by the
Netherlands and placed at the disposal of the Belgian Commission. Both sides
could have had no doubt that the Mixed Boundary Commission, in dealing with
the two Baarles, was itself determining the status quo and was proposing to
fix the boundaries between the two States on that basis. It was to decide
which parts of these enclosed communes belonged to the Netherlands and which
parts belonged to Belgium.
The President of the Netherlands Commission had anticipated in his letter of
16 December 1841 to the Netherlands Minister of Foreign Affairs that a copy
of the Communal Minute would be incorporated in the Boundary Convention to
show—on the basis of the maintenance of the status quo—which parts of the
two communes belonged to the Netherlands and which parts belonged to
Belgium. The copy of the Communal Minute which he then had in mind to be so
incorporated was not, word for word, a copy of the Communal Minute produced
in these proceedings by the Netherlands. It could only have been the copy
which he then possessed, and which, as is clear from his letter of 31
October 1841 to the Minister of Foreign Affairs and as stated in the
Descriptive Minute, attributed the disputed plots to Belgium.
In the detailed map which was drawn up pursuant to the decision of the Mixed
Boundary Commission at its 225th Meeting and which was to become part of the
Boundary Convention, it was shown clearly, and in a manner which could not
escape notice, that the disputed plots belonged to Belgium. They stood out
as a small island in Netherlands territory coloured to show, in accordance
with the legend of the map, that they did not belong to the Netherlands but
to Belgium. The situation of those plots must have immediately arrested
attention. This map, signed by the members of the res-[p 226]pective
Commissions, of its very nature must have been the subject of check by both
Commissions against original documents and surveys.
It is difficult to accept the view that an error was made in the Descriptive
Minute in the process of copying. The difficulty in the way of the Court
accepting such a view as a practical possibility appears to have been
appreciated by the Netherlands. In the case put forward by it in its
pleadings, it accordingly presented the argument that there was an error in
the copy of the Minute in the hands of the Netherlands Commission which had
automatically repeated itself, both in the word for word transcription of
the Communal Minute into the Descriptive Minute and in the detailed map,
without the error being discovered by the Mixed Boundary Commission. The
Descriptive Minute, it was argued, could never have been checked, except
perhaps against the allegedly incorrect Netherlands copy.
This explanation fails to have regard to the true function of the Mixed
Boundary Commission and to the facts as they appeared to it. The Commission
was not a mere copyist. Its duty was to ascertain what the status quo was.
It had authority to fix the limits between the two States, which duty it
discharged. At the 175th and 176th meetings of 2 and 4 December 1841, it was
aware of the discrepancy between the two copies of the Communal Minute. That
uncertainty still prevailed in the minds of both Commissions is evident from
the contemporaneous correspondence of December 1841 and January 1842. Each
side was seeking further information. Between the 175th and 225th meetings
the Commission, by enquiries on the spot and by recourse to records and
surveys of both communes, must have reached its own conclusion and
determined, as was its duty, what the status quo was in relation to the
disputed plots. At the 225th meeting, it must have decided that the status
quo was correctly stated in the copy then in the possession of the
Netherlands Commission and that it was this text—and not the copy produced
by the Netherlands before the Court—which was to be transcribed word for
word in the Descriptive Minute. Consequently it annulled the Minutes of its
175th and 176th meetings and attributed sovereignty over the disputed plots
to Belgium. This decision found its expression in the Boundary Convention.
In the view of the Court, apart from a mere comparison of the text of the
Descriptive Minute with the copy of the Communal Minute produced by the
Netherlands, all attempts to establish and to explain the alleged mistake
are based upon hypotheses which are not plausible and which are not
accompanied by adequate proof.[p 227]
The Boundary Convention of 1843 was the result of several years of labour,
with members of the Mixed Boundary Commission not only in contact with the
respective communal administrations but also with the Governments of the
respective States. According to information furnished to the Court, copies
of the text of the Communal Minute to be incorporated in the Descriptive
Minute, and which was in fact incorporated therein, were signed by the
secretaries of each commune. The actual text transcribed was accordingly
known to both communes and both States. The Convention was confirmed by the
Parliament of each State and ratified in accordance with their
constitutional processes. Its terms have been published in each State. For
almost a century the Netherlands made no challenge to the attribution of the
disputed plots to Belgium.
The Court is satisfied that no case of mistake has been made out and that
the validity and binding force of the provisions of the Convention of 1843
in respect of the disputed plots are not affected on that account.
***
The final contention of the Netherlands is that if sovereignty over the
disputed plots was vested in Belgium by virtue of the Boundary Convention,
acts of sovereignty exercised by the Netherlands since 1843 have established
sovereignty in the Netherlands.
This is a claim to sovereignty in derogation of title established by treaty.
Under the Boundary Convention, sovereignty resided in Belgium. The question
for the Court is whether Belgium has lost its sovereignty, by non-assertion
of its rights and by acquiescence in acts of sovereignty alleged to have
been exercised by the Netherlands at different times since 1843.
As to the question whether Belgium ever relinquished its sovereignty over
the disputed plots, it is to be observed that Belgian military staff maps
since their first publication in 1874 have shown these plots as Belgian
territory. The plots were included in Belgian survey records from 1847 to
1852, when one plot for some reason was struck out but restored about 1890,
since which time both have continued to appear therein. Transfer deeds
relating to one of the plots were entered in the Records of the Survey
authorities at Baerle-Duc in 1896 and 1904.
In 1843, the plots were uncultivated land, of which one was described by the
Netherlands as being in 1860-1863 "a clearing of heathland". The Netherlands
state that since 1866 the use to which both plots have been put has changed
a number of times, although the nature and dates of these changes are not
stated. Prior to 1906 some transfers of land were recorded in the Office [p
228] of Baarle-Nassau. In 1906 some houses were erected upon part of plot 91
and thereafter further transfers of lands were recorded in that Office.
Since that time also, registrations of births, deaths and marriages of
inhabitants of these houses have been entered in the Baarle-Nassau Communal
Register. It is stated by Belgium that these houses, constructed round the
Baarle-Nassau (frontier) station built by the Netherlands Government, were
occupied by Netherlands officials.
Some time after their erection, a Belgian inspector of survey, having
visited Baarle-Nassau, found that plots 91 and 92, entered in the Belgian
survey, were also entered in the Netherlands survey. Official Belgian
enquiries were then initiated, and finally, in July 1914, the Director of
the Survey at Antwerp informed the Belgian Minister for Finance that he
thought it necessary for the matter to be submitted to the Belgian Ministry
for Foreign Affairs. The First World War then intervened. In December 1919
the file was transmitted to that Ministry.
Following examination by that Ministry, the Belgian Minister at The Hague in
August 1921 drew the attention of the Netherlands Government to the fact
that the two disputed plots and two other plots belonging to Baerle-Duc were
entered in the survey documents of both States. The Netherlands Minister for
Foreign Affairs replied on 6 October 1922, when he acknowledged that the
t~7o other plots were Belgian and should be struck out of the Netherlands
survey documents, but for the first time it was claimed that the Communal
Minute had been inaccurately reproduced in the Descriptive Minute and that
plots 91 and 92 belonged to the Netherlands. Since then, sovereignty over
these two plots has been the subject of dispute between the two States.
The Netherlands relies, in addition to the incorporation of the plots in the
Netherlands survey, the entry in its registers of land transfer deeds and
registrations of births, deaths and marriages in the communal register of
Baarle-Nassau, on the fact that it has collected Netherlands land tax on the
two plots without any resistance or protest on the part of Belgium.
Belgium's reply is that it was quite unaware that tax was being collected;
that neither plot was under Belgian law liable to its land tax, since both
plots were until recent years uncultivated and one of them was State
property. This explanation is disputed by the Netherlands Government.
Reliance is also placed by the Netherlands upon certain proceedings taken by
the commune of Baerle-Duc before a Breda tribunal in 1851. These proceedings
were concerned with a proposed sale of a large area of heathland over which
the commune of Baerle-Duc [p229]claimed to have certain rights of usufruct.
This area included part of the disputed plots.
A further act relied upon by the Netherlands is the sale by the Netherlands
State, publicly announced in the year 1853, of the heathland above referred
to. The Belgian Government states that the fact that this area included a
part of the disputed plots escaped its notice.
The Netherlands also claims that Netherlands laws, more particularly in
regard to rents, were applied to houses built on the plots.
Finally, the Netherlands places reliance upon the grant of a railway
concession which related to a length of line, a small portion of which
passed through the disputed plots.
The weight to be attached to the acts relied upon by the Netherlands must be
determined against the background of the complex system of intermingled
enclaves which existed. The difficulties confronting Belgium in detecting
encroachments upon, and in exercising, its sovereignty over these two plots,
surrounded as they were by Netherlands territory, are manifest. The acts
relied upon are largely of a routine and administrative character performed
by local officials and a consequence of the inclusion by the Netherlands of
the disputed plots in its Survey, contrary to the Boundary Convention. They
are insufficient to displace Belgian sovereignty established by that
Convention.
During the years 1889 to 1892 efforts were made by the two States to achieve
a regular and continuous frontier line between them in this region through
exchanges of territory. A new Mixed Boundary Commission, which met during
those years, finally prepared a Convention which was signed by the
plenipotentiaries of the two States in 1892, but which was never ratified.
Under the terms of the Convention, Belgium agreed to cede to the
Netherlands, inter alia, the two disputed plots. The Netherlands urged that
this should not be read against it since the Convention was not ratified and
since little importance had attached to the two plots in question and it had
allowed itself to be misled by the text of the Descriptive Minute and the
significance of any cession was not the subject of consideration.
The unratified Convention of 1892 did not, of course, create any legal
rights or obligations, but the terms of the Convention itself and the
contemporaneous events show that Belgium at that time was asserting its
sovereignty over the two plots, and that the Netherlands knew it was so
doing. In a letter of 20 August 1890, the Belgian Minister for Foreign
Affairs had informed the Netherlands Minister in Brussels that an enclave,
intersected by the railway from Turnhout to Tilburg, had been omitted from
the list of territories to be ceded by Belgium to the Netherlands. This
enclave comprised the disputed plots; they were incorporated in the
Convention of [p 230] 1892 and subsequently specifically covered by a
separate Declaration of December of that year. The Netherlands did not in
1892, or at any time thereafter until the dispute arose between the two
States in 1922, repudiate the Belgian assertion of sovereignty.
Having examined the situation which has obtained in respect of the disputed
plots and the facts relied upon by the two Governments, the Court reaches
the conclusion that Belgian sovereignty established in 1843 over the
disputed plots has not been extinguished.
For these reasons,
The Court,
by ten votes to four,
finds that sovereignty over the plots shown in the survey and known from
1836 to 1843 as Nos. 91 and 92, Section A, Zondereygen, belongs to the
Kingdom of Belgium.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of June, one thousand nine
hundred and fifty-nine, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Kingdom of Belgium and the Government of the Kingdom of the Netherlands,
respectively.
(Signed) Helge Klaestad,
President.
(Signed) Garnier-Coignet,
Deputy-Registrar.
Judge Sir Hersch Lauterpacht makes the following Declaration:
I have voted in favour of a decision determining that the sovereignty over
the plots in dispute belongs to the Netherlands.
Article 90 of the Descriptive Minute of the Boundary Convention of 1843, in
assigning these plots to Belgium, purports to transcribe word for word the
Communal Minute between Baerle-Duc and Baarle-Nassau which assigns these
plots to the Netherlands. The Netherlands has produced before the Court what
it described as one of the two original copies of the latter Minute. No
other copy of the original Minute has been produced before the Court. The
authenticity of the Minute produced by the Netherlands has not [p 231] been
challenged—though it has been alleged by Belgium that a mistake had occurred
in the course of transcribing it. On the other hand, it has been alleged by
the Netherlands that a mistake, in the contrary direction, had occurred in
the process of transcribing that document when the Descriptive Minute was
adopted in 1843. In the words of Counsel for Belgium, the accumulation of
errors in this case was such "as though some evil genius had presided over
the whole affair". I have formed the view that the evidence submitted to the
Court in the shape of the formal Minutes, succinct in the extreme, of the
Boundary Commission and of fragmentary correspondence lacking in sequence
has not wholly dispelled the impact of the confused situation thus created.
The circumstances of the adoption, in 1843, of the Descriptive Minute must,
to some extent, be in the nature of conjecture. In particular, it has not
been proved possible to state a direct conclusion as to the authenticity or
otherwise of the cardinal piece of evidence, namely, of the only existing
copy of the Communal Minute produced by the Netherlands. Moreover, while the
Commissioners who drafted the Descriptive Minute enjoyed wide powers, they
had no power to endow with legal efficacy a document in which they purported
to transcribe word for word the Communal Minute and to observe the status
quo but in which they actually modified the Communal Minute and departed
from the status quo. The law knows of no such power. For these reasons, I am
of the opinion that the relevant provisions of the Convention must be
considered as void and inapplicable on account of uncertainty and unresolved
discrepancy.
The Special Agreement of 26 November, 1957, submitting the dispute to the
Court is by design so phrased as not to confine its function to giving a
decision based exclusively on the Convention of 1843. By the generality of
its terms it leaves it open to the Court to determine the question of
sovereignty by reference to all relevant considerations—whether based on the
Convention or not. Accordingly, in the circumstances, it seems proper that a
decision be rendered by reference to the fact, which is not disputed, that
at least during the fifty years following the adoption of the Convention
there had been no challenge to the exercise, by the Government of the
Netherlands and its officials, of normal administrative authority with
regard to the plots in question. In my opinion, there is no room here for
applying the exacting rules of prescription in relation to a title acquired
by a clear and unequivocal treaty; there is no such treaty. It has been
contended that the uninterrupted administrative activity of the Netherlands
was due not to any recognition of Netherlands sovereignty on the part of
Belgium but to the fact that the plots in question are an enclave within
Netherlands territory and that, therefore, it was natural that Netherlands
adminis-[p 232]trative acts should have been performed there in the ordinary
course of affairs. However, the fact that local conditions have necessitated
the normal and unchallenged exercise of Netherlands administrative activity
provides an additional reason why, in the absence of clear provisions of a
treaty, there is no necessity to disturb the existing state of affairs and
to perpetuate a geographical anomaly.
Judge Spiropoulos makes the following Declaration
The international legal status of the disputed plots seems to me to be
extremely doubtful.
The facts and circumstances (decisions of the Mixed Boundary Commission,
letters, etc.) at the basis of the Belgian hypothesis that the copy, which
has not been produced before the Court, of the Communal Minute of 1841
attributed the disputed plots to Belgium or that the Boundary Commissioners
had corrected it to that effect—which facts go back more than a century—do
not, in my opinion, make it possible to conclude with sufficient certainty
that the Belgian hypothesis corresponds with the facts.
On the other hand, the thesis of the Netherlands to the effect that an error
crept into the Minute attached to Article 90 of the Descriptive Minute of
1843 is also merely based on a hypothesis, i.e. on the mere fact that the
text of the Communal Minute of 1841 departs from the text of the Minute
attached to Article 90 of the Descriptive Minute of 1843.
Faced as I am with a choice between two hypotheses which lead to opposite
results with regard to the question to whom sovereignty over the disputed
plots belongs, I consider that preference ought to be given to the
hypothesis which seems to me to be the less speculative and that, in my
view, is the hypothesis of the Netherlands. For this reason I have hesitated
to concur in the Judgment of the Court.
Judges Armand-Ucon and Moreno Quintana, availing themselves of the right
conferred upon them by Article 57 of the Statute, append to the Judgment of
the Court statements of their Dissenting Opinions.
(Initialled) H. K.
(Initialled) G.-C.
[p 233]
DISSENTING OPINION OF JUDGE ARMAND-UGON
[Translation]
I very much regret that, for the reasons set out below, I am unable to
concur in the Judgment of the Court.
Enclaved within the territory of the commune of Baarle-Nassau (Netherlands),
which extends over more than 4,000 hectares, is the commune of Baerle-Duc
(Belgium), of an area of 200 hectares. In Section A, known as Zondereygen,
of the commune of Baarle-Nassau, two plots shown in the survey and known,
from 1836 to 1843, as numbers 91 and 92, are the subject of the present
dispute and the Parties ask the Court to decide to which of the two this
territory, of 14.378 hectares, belongs.
***
The Belgian Government bases its claims to sovereignty in respect of these
plots on the express provisions of the minute reproduced in Article 90 of
the Descriptive Minute of the convention of 1843. This minute was drawn up
in Dutch; the part relating to the plots is in the following terms:
"The plots numbered 91 and 92 belong to the commune of Baerle-Duc" (De
parceelen nummer 91 en 92 behoren tot de gemeente Baerle-Hertog).
The Dutch Government relies on two main propositions in asserting its
sovereignty: the status quo laid down by the Treaty of 1842 and by the
Convention of 1843, and, after that date, effective, notorious and peaceful
possession of the plots. The Communal Minute of 1836-1841, of the commune of
Baarle-Nassau, shows the two plots as belonging to that commune. Its text,
which is in Dutch, is to the following effect:
"Section A, known as Zondereygen:
The plots numbers 78-111 inclusive belong to the Commune of Baarle Nassau"
(De parceelen van en met nummer 78 tot en met no. III behoren tot de
Gemeente Baarle Nassau).
***
The Court has to decide which of these two texts is that of the Convention
of 1843.
The first text indicated by the Belgian Government would attribute—wrongly,
according to the Dutch Government—the plots to Belgium. This text appearing
in a certain minute inserted in the Descriptive Minute of Article 90 in no
way expresses the consent and the will of the Contracting Parties; a mistake
was made in [p 234] reproducing in Article 90 a minute which was not the
Communal Minute of 1836-1841 upon which the Mixed Commission had decided.
The burden of proving this allegation lies upon the Dutch Government.
***
An examination in their chronological order of the most important of the
relevant documents facilitates an understanding of the discussions and
changes of opinion within the Mixed Boundary Commission with regard to the
plots. Such an examination will also lead to a decision in the present case.
Certain facts adduced by the Parties, which may not be necessary to the
decision on the question submitted to the Court, will not be dealt with
here.
The Communal Minute, which was begun on 29 November 1836 and completed in
1839, being agreed and signed by the authorities of the two communes on 22
March 1841, occupies a position of cardinal importance in the present case.
That document, indeed, was to become, as the result of a resolution of the
Mixed Commission, the second part of Article 90 of the Descriptive Minute of
the 1843 Convention.
The separation of Belgium and the Netherlands, in 1830, had made it
necessary to draw up a minute recording the ownership of the plots making up
the two communes of Baarle-Nassau and Baerle-Duc.
The authorities of the two communes and those who drew it up proceeded, in
pursuance of instructions received from the respective authorities, to
"ascertain as accurately as possible the boundaries which had long existed
between the enclaved plots within the communes". This minute was drawn up
after discussion on the bases of the Survey Register, the lists of plots,
the Property Registers, and the testimony of the oldest inhabitants; all
differences of opinion were settled with the assent of the owners
(Counter-Memorial, Annex 1, pp. 6-21). The document was completed in 1839
but signed by the authorities of Baerle-Duc only in March 1841, when the
Mixed Boundary Commission had already begun its work. All the precautions
indicated reveal the care and seriousness which went into the drafting of
this important document, free of erasures or additions, stamped with the
seals of the two communes, which was drawn up in two copies recording the
official text, and deposited in the archives of each of the two communes.
The original copies could not but be identical. The two Minutes follow the
forms of a treaty or convention between the two communes. It is a single
legal instrument, the work of the authorities of the two communes which it
will not be possible to alter Save by their agreement. It indicates who are
the contracting parties; a preamble States the reasons which have determined
its conclusion and the purpose in view, which is to record certain facts.
The Minute [p 325] agreed by the two communes, which consists of fourteen
pages and relates to 5,732 survey plots, constitutes an agreement between
the communal authorities of the two States. Only the copy deposited in the
archives of the commune of Baarle-Nassau has been put in in this case; the
other copy, belonging to Baerle-Duc, has not been produced by the Belgian
Government. This failure to produce it is to be regretted, for, clearly,
either the missing copy agreed with that which has been put in, or it
differed from it. In either event, the presence of the document would have
cast decisive light upon the rights of the Parties. The present case would
probably not have been submitted to the Court. The non-possession of this
document, invoked by the Belgian Government, cannot create for that
Government a more favourable situation. It has neither explained nor proved
when and how this disappearance occurred; neither accident nor force majeure
has been put forward by way of explanation. It is a mere assertion on its
part, made in 1955.
In any event, no doubt has been raised by the Parties as to the authenticity
of the Communal Minute and, as the only existing copy, it must be regarded
as completely authoritative.
***
In order the better to understand the work of the Mixed Commission, it is
convenient to divide it into two separate periods. The first period extends
from 3 June 1839 until its adjournment on 18 January 1842, and the second
from 23 February 1843, when its work was resumed, until 8 August of the same
year, the date of the signature of the Descriptive Minute. One important
fact occurred between the two periods of the Commission's work; that was the
Treaty of 5 November 1842, ratified on 5 February 1843, which laid down the
general lines to be followed by the Commission in the fulfilment of its
mission.
When the Mixed Commission established by the Treaty of London of 19 April
1839 came, in the course of its work, to the sectors of the communes of
Baarle-Nassau and Baerle-Duc, it encountered serious and special
difficulties in continuing the frontier line which it had until then been
able to draw. The Belgian Commissioners indicated that, in view of the
instructions which they had received, they were obliged to maintain the
status quo so far as the Belgian commune of Baerle-Duc was concerned (letter
of the President of the Belgian Commission to the President of the
Netherlands Commission of 4 September 1841).
The Commissioners deputed by the Mixed Commission, having met at Achel, on
26 October 1841 (175th meeting), recorded that being unable "to apply to the
delimitation between the communes of Baarle-Nassau and Baerle-Duc the same
methods and types of operations as had been used for the rest of the
frontier line, [they] had agreed in these special circumstances to proceed
in the following [p 236] way... They would confine themselves ... to
ascertaining and recording which plots, whether built-up property, arable
land, meadows, gardens, orchards, woods or heathland, etc., belonged to the
Netherlands, and which to Belgium, that is, to the communes of Baarle-Nassau
and Baerle-Duc." For the purpose of this work, the Communal Minute of
1836-1841 was "taken as the basis of the division of the] territories of the
two communes... Accordingly it was ... agreed by the delegates of the Mixed
Commission that the territory of the ... commune of Baarle-Nassau included
all the plots under the following numbers:
………………………………………………………………………………………………………
Section A, known as Zondereygen.
1, 4, 5 and 62 to 67 inclusive; 78 to III inclusive; 113, 127 etc."
(Counter-Memorial, Annex XXVII a, pp. 57-58).
By this decision, in which the Belgian Commissioner Viscount Vilain XIIII
collaborated, the Sub-Commission attributed the disputed plots to
Baarle-Nassau.
A letter of Viscount Vilain XIIII, of the following day, 27 October 1841,
addressed to the burgomaster of Baerle-Duc, asked the latter to inform him
whether plots 91 and 92 belonged to Baerle-Duc for, according to the
boundary minute of the commune of Baarle-Nassau, they belonged to
Baerle-Duc; the minute of Our commune does not refer to them, added the
letter (Counter-Memorial, Annex XXII, p. 51). The reply to that letter has
not been placed before the Court.
The letter of Viscount Vilain XIIII, referring to a boundary minute of the
commune of Baarle-Nassau, cannot have been alluding to that commune's Minute
of 1836-1841, the original of which has been deposited in the Registry and
establishes that plots 91 and 92 belong to Baarle-Nassau. The assertion in
his letter that "the minute of our commune does not refer to them" shows
that he recognized that according to that minute the plots in question were
attributed to Baarle-Nassau. This letter is evidence corroborating the fact
that the original copies deposited in the two communes were in agreement on
this point.
In an Annex to a Report sent to the Minister for Foreign Affairs of the
Netherlands on 31 October 1841, by the President of the Dutch Boundary
Commission, it is said that it had been mutually agreed at Achel by the
delegates of the Mixed Commission that the teritories of the two communes
consisted of the plots indicated in a table appended to the Report.
According to this table, in Section A, known as Zondereygen, it is stated
that plots 91 and 92 belong to Belgium. The Dutch President in so stating
was not accurately reporting the decision which had been taken at Achel with
regard to the disputed plots. [p 237]
On I December 1841, the Mixed Commission studied the difficulty which
prevented the Commissioners appointed from establishing a continuous
frontier between Baarle-Nassau and Belgium. This difficulty arose from the
particular character of the territories of Baarle-Nassau and Baerle-Duc
which were made up of intermingled parcels. It was decided to proceed to a
verification of the work of Sub-Commissions designated to record the
sovereignty of each Power over the various plots making up the territories
of the two communes (Counter-Memorial, Annex XXVI, p. 55).
One month after the Achel decision, on 2 December 1841, a plenary meeting of
the Mixed Commission, after discussion and having regard to the proposals of
the delegates of the Commission, decided upon the following provision for
the division of the territories of the communes in question:
"Paragraph 1.—It not being possible without the very greatest difficulty to
effect a delimitation properly so called as between these two communes, all
that can be done is to recognize and to designate the plots consisting of
built or unbuilt property which belong respectively to the commune of
Baarle-Nassau (Netherlands) and to the commune of Baarle-Duc (Belgium)."
(Counter-Memorial, Annex XXVII, p. 56.)
The decision of 4 December 1841, by the Plenary Commission (176th meeting),
in recording the plots which should belong respectively to each of the two
States, designating them by their survey sections and numbers, included in
Section A, known as Zondereygen, inter alia "the plots numbered 78 to III
inclusive" as belonging to Baarle-Nassau (Memorial, Annex VI, p. 23).
Thus, at the time when the Mixed Commission adjourned its work on 18
February 1842, it had decided that the plots were Dutch (Counter-Memorial,
Annex XXXI, p. 64). The doubts raised by the letter of Viscount Vilain XIIII
had been entirely dissipated. There was no uncertainty, at that date, with
regard to Dutch sovereignty over the plots.
***
The Mixed Commission resumed its work on 23 February 1843 (Counter-Memorial,
Annex XXXII, p. 65). Its work was to be completed within three months; it
went on, however, for four months. The Commission then had before it the
Treaty of 5 November 1842, Article 14 of which laid down the maintenance of
the status quo for the two communes. The question of the delimitation of the
frontier remained open. It was decided to begin work with the definitive
revision of the descriptive minutes of the boundary and that the
Sub-Commissions should be entrusted with the task of revision
(Counter-Memorial, Annex XXXII, p. 65). [p 238]
At the meeting on 3 March 1843, the Mixed Commission adopted the following
rules relating to the method to be adopted and the procedure to be followed:
"(1) The Presidents shall take immediate steps for the preparation of
accurate copies of the maps of plots necessitated as a result of the Treaty
of 5 November 1842.
(2) The descriptive minutes shall be revised and completed by one or more
Sub-Commissions which shall submit the result of their work for the approval
of the Mixed Commission.
………………………………………………………………………………………………
(5) In order to reduce writing as much as possible and to avoid very lengthy
and often imperfect collating, the descriptive minutes, of which a
considerable number of copies will be required, will be duplicated and run
off, the costs being shared, in 50 copies, 25 for each Commission."
(Counter-Memorial, Annex XXXIII, p. 66.)
The work was thus being divided. It should not be forgotten that the
Descriptive Minute contains 142 articles and that the work was to be
completed within three months.
On 4 April 1843 (225th meeting), the Commission adopted a resolution
containing two articles of which the first alone is relevant to the case;
the articles were to be annexed to the minutes of that meeting. As a result
of that resolution, the decisions relating to the communes of Baarle-Nassau
and Baerle-Duc, set out in the minutes of the 175th and 176th meetings, were
cancelled. As a result, the decisions taken on 26 October and on 2 and 4
December 1841 were rendered ineffective. This cancellation was the immediate
consequence of the adoption at that same meeting of the Communal Minute of
1836-1841, as a record of the status quo, which had to be maintained in
virtue of Article 14 of the Treaty of 5 November 1842. The proclamation of
the maintenance of the status quo obviously compelled the Mixed Commission
to revise everything that had previously been agreed upon with regard to the
plots of the two communes in derogation of the status quo ; it maintained
everything that had been decided on the basis of the status quo. The
resolution of 4 April 1843—which will be set out in full having regard to
its extreme importance, for it was to constitute the first part of Article
90 of the Descriptive Minute of the 1843 Convention—was as follows:
"Article 90
Communes of
Baarle-Duc (Belgium) and
Baarle-Nassau (Netherlands)
Paragraph I. The boundary line, after separating the commune of Poppel
(Belgium) from the commune of Alphen (Netherlands) touches, at the point
described at the end of the previous Article, the territory composing the
communes of Baarle-Duc and Baarle-Nassau. [p 239]
As regards these two communes, the boundary commissioners:
Having regard to Article 14 of the Treaty of 5 November 1842, worded as
follows:
'The status quo shall be maintained both with regard to the villages of
Baarle-Nassau (Netherlands) and Baarle-Duc (Belgium) and with regard to the
ways crossing them.'
Whereas the present situation of these places, maintained by the provisions
of Article 14 referred to above, does not allow of a regular delimitation of
the two communes in question;
Whereas it may nevertheless be useful <O record what was established, after
discussion, by the Minute of 29 November 1836, agreed and signed on 22 March
1841 by the local authorities of the communes;
decide :
(a) The above-mentioned Minute, recording the plots composing the communes
of Baarle-Duc and Baarle-Nassau, is transcribed word for word in the present
Article.
(b) A special map, in four sheets, showing the whole detailed survey plot by
plot of the two communes, is drawn up on a scale of 1 : 2,500 and to this
map are annexed two separate sheets showing, on a scale of I : 2,500, those
parts of the communes which a smaller scale would not show sufficiently
clearly.
(The Minute referred to above will here be inserted textually.)"
As a result of this resolution adopting the Communal Minute of 1836-1841,
the disputed plots were incorporated in the commune of Baarle-Nassau. A
provision of this minute stated in terms: "Plots 78 to in inclusive belong
to the commune of Baarle-Nassau." The Mixed Commission, on 4 April 1843, in
deciding to maintain the status quo, recognized Dutch sovereignty over the
plots. In this resolution it irrevocably made its choice. After that date no
other resolution was adopted by the Mixed Commission on this point.
The content of the status quo which had thus been adopted by the Mixed
Commission was also accepted by the Belgian Minister at The Hague in a
letter of 26 June 1843 to the Minister for Foreign Affairs of the
Netherlands. He laid claim, on behalf of the inhabitants of the commune of
Baerle-Duc, to a certain right to the use of heath in the possession of
Prince Frederick of the Netherlands. The property in question included plot
91. The Belgian Minister added in his letter:
"If the question arose in respect of Belgian territory, its solution would
be simple, as Articles 8 and 10 of the Law of 28 August 1792 would formally
guarantee the rights of Baerle-Duc." (Counter-Memorial, Annexes XLI and XLI
a.) [p 240]
***
In order to appreciate the legal scope of the resolution of 4 April 1843,
from the point of view of the present dispute, it is necessary to analyze
its content. The resolution is an agreement reached in accordance with the
free and concordant wills of the authorities deputed by the two Governments
to fix the status quo and the situation of the two communes, and it must
exercise its full effects.
Once embodied in Article 90 of the Descriptive Minute, this resolution
became a provision of the 1843 Convention. The same is true of the Communal
Minute, the wording of which was to be exactly reproduced.
It is clear from the resolution that the Boundary Commissioners, in view of
Article 14 of the Treaty of 5 November 1842, were to maintain the status quo
in regard to the two communes. This method respected the local and
pre-existing situation between them. It is the basis of the principle of uti
possidetis, an obvious and convenient procedure. As from 4 April, the status
quo for the plots of the two communes remained fixed.
Moreover, as was observed in that resolution, there was no possibility of
demarcating the boundaries of the two communes in a regular way. This was
impossible for two reasons—one legal (Article 14) and the other physical
(the conformation of the two enclaved territories and the intermingling of
the plots), and this decided the Mixed Commission to adopt the Communal
Minute of 1836-1841 in order to determine which plots belonged to each of
the two communes; this was to be transcribed "word for word" in the
Descriptive Minute. The text of this Minute, despite a final note in the
resolution of 4 April 1843, was never incorporated verbatim in the minutes
of that meeting of the Mixed Commission.
The Communal Minute, which was to be transcribed word for word in Article 90
of the Descriptive Minute, was the one drawn up after discussion on 29
November 1836, and agreed and signed on 22 March 1841 by the two communes.
It was an authentic copy of that Minute which was to be incorporated in
Article 90, for that was the document which was authoritative and which
evidenced the status quo of the plots as between the two communes—such was
the intention of the Boundary Commissioners and it was to that that they had
given their consent. Now that Communal Minute was not reproduced "word for
word" in Article 90 of the Descriptive Minute of the delimitation between
the Kingdoms of the Netherlands and Belgium, as had been decided by the
Mixed Commission. In the Communal Minute, an original copy of which has been
produced, the disputed plots are declared to belong to Baarle-Nassau, while
the Minute in Article 90 assigns them to Baerle-Duc, as the result of the
reproduction of a document which is not the Communal Minute of 1836-1841. [p
241]
Article 90 of the Descriptive Minute is in two parts: the first is the text
of the resolution of 4 April 1843, and the second is the insertion of the
Communal Minute of 1836-1841. It is a compilation of two instruments
originating from different authorities: the Nixed Commission and the
authorities of the communes of Baarle-Nassau and Baerle-Duc. The second part
was not carried out in conformity with the first part, which is the
reproduction of the resolution passed on 4 April; instead of incorporating a
copy of the original of the Communal Minute of 1836-1841, there was put in
its place a copy of another communal minute differing from that which the
Mixed Commission had decided to adopt. There was thus an incorrect and
vitiating implementation of a provision of the Convention (Article 90 of the
Descriptive Minute). The intention of the Parties was not respected. This
incorrect implementation does not amount to a revision of this conventional
provision, such revision not having been envisaged by the Mixed Commission,
nor decided upon by it subsequently. The Mixed Commission did not go back
upon its resolution of 4 April and no change was made in its text. Whenever
it changed any of its decisions—as when it reconsidered Articles 50 to 112
of the Descriptive Minute at its meeting on 12 June 1843—the change was duly
noted in the minutes of the meeting (see Counter-Memorial, Annex XXXVII, p.
76).
No evidence has been adduced to justify the modification of the original
text by a later and different text. The copy invoked as having served as the
basis for the Communal Minute inserted in A4rticle go has not been produced.
There is therefore no evidence of any intentional modification on this
point, and the clear and formal resolution of the Mixed Commission
incorporated in Article 90 was never at any time rescinded or revoked. It is
therefore this conventional provision which must govern the discrepancy
pointed out between the Communal Minute and the communal minute transcribed
in Article 90 of the Descriptive Minute. The purely clerical error in the
transcription of one text for another must be recognized in the light of the
complete and decisive evidence adduced by the Netherlands Government. An
authentic legal instrument was replaced by a non-authentic instrument
differing from that which had been agreed by the Parties. The communal
minute incorporated in Article 90 is a copy of a non-authentic instrument;
there is no evidence of its existence. As to the existence of a discrepancy
between the texts of the two minutes, no doubt is possible; the original
text has only to be compared with the text transcribed; the original text
has an exclusive and certain legal validity and must prevail over the text
of Article 90.
A comparison of the two Dutch texts of this minute of Article 90 reveals
another discrepancy in the paragraph relating to the plots in issue.[p 242]
The text produced by Belgium reads: "De parceelen nummer 91 en 92 behoren
tot de gemeente Baerle-Hertog."
The text produced by the Netherlands is as follows: "De parceelen no. 91 en
92 behooren tot Baarle-Hertog."
In the latter version, the words "de gemeente" have been omitted. This
observation makes it possible to assert that the two communal secretaries
certified two different texts and that the Commissioners deputed to collate
the two texts did not perform their task with the requisite care.
This variation in the two texts of Article 90 of the Descriptive Minute,
attributing the plots in one case to the commune of Baerle-Duc, in the other
to Baarle-Duc, whereas, throughout the text of the Descriptive Minute, the
plots are otherwise invariably assigned to a commune (gemeente), can only be
explained as an interpolation inserted in the text of the Communal Minute of
1836-1841 which has been produced.
Once it had accepted the text of the Communal Minute of 1836-1841 as
decisive on the status quo, the Mixed Commission could not alter that Minute
without the intervention of the Communal authorities. The Commission
referred to an intercommunal instrument for the purpose of establishing the
status quo which it desired to be transcribed word for word in the
Descriptive Minute; it prescribed the exact reproduction of that document.
In principle, the organs which have drawn up a legal instrument are alone
competent to modify or amend it. Furthermore. this Communal Minute indicated
the procedure to be followed for the correction of mistakes which it might
contain and the kind of evidence to be produced in such circumstances. The
Mixed Commission, if it had had the intention of correcting the Communal
Minute at the time of the incorporation of that inserted in Article 90 of
the Descriptive Minute, should have described it as an amended minute
recognizing the exact boundaries between the communes of Baarle-Nassau,
province of North Brabant, and Baerle-Duc, province of Antwerp. The
Commission did not do so. On the contrary, it secured the certification of a
certain communal minute by the secretaries of the two communes. It is
obvious that the Mixed Commission could not, without being guilty of
material falsification, transcribe as a genuine copy of a given legal
instrument an instrument which it had previously secretly altered. From that
moment, the instrument transcribed and incorporated in Article 90 was no
longer the Communal Minute of 1836-1841, but another minute the existence of
which is unknown. It must be concluded that the Mixed Commission, though at
the top of the hierarchy, was not competent to alter the Communal Minute and
subsequently to pass it off as the Minute of 1836-1841. It is not
permissible to state that one is going to make a specific and accurate
quotation and then present under that name a text which does not accord with
the original. The Mixed Commission had neither t.he intention nor the desire
to act in this way.[p 243]
***
It is beyond dispute—as the Parties recognize—that there is a discrepancy
between the minute incorporated in Article 90 and the Communal Minute of
1836-1841 on the question of the attribution of the disputed plots.
The explanations submitted by the Parties with regard to the origin of this
discrepancy do not get beyond the state of mere hypothesis. Neither of the
two versions is supported by unquestionable and decisive evidence. All the
time it is conjecture, inference and assumption on controversial facts. They
cannot therefore be accepted.
On the other hand, for the decision of the present case, it is not necessary
to know or to establish the genesis of the variation referred to between the
two texts of the minutes; it is sufficient to note the existence of the
discrepancy.
The Netherlands Government has proved its existence.
The Belgian Government contends that the departure from the authentic Minute
was deliberate; its case is that the Parties decided to insert in Article 90
the text which was transcribed. Such an intention, if it ever existed, was
never in any way recorded in any document. There is complete silence on the
point, both in the minutes of the meetings of the Mixed Commission and in
the Descriptive Minute.
The Belgian Government adds that the Parties reached agreement as to the
adoption of the Minute in the form in which it was transcribed in Article
90. This assertion is contrary to the formal text of the resolution of 4
April 1843, which has become a conventional provision, and which decided
that the minute to be transcribed in Article 90 was "the above-mentioned
Minute", that is, the Communal Minute of 1836-1841 and no other minute. But
what was in fact incorporated in the text of Article 90 was another
non-authentic minute. As a result of this, the consent of the Parties given
at the time of the resolution of 4 April was not respected. The 1843
Convention cannot serve as a cloak for the failure to implement a provision
of Article 90 and thus give binding force to what was done. Its provisions
cannot have the effect that a copy of an unknown instrument is to be
regarded as authoritative and prevailing against the authentic copy of an
instrument chosen by it as evidence of the status quo. The subject-matter of
the consent of the Parties was the maintenance of the status quo recorded by
the Communal Minute of 1836-1841; that consent was not given in respect of
any other subject-matter.
***
On 14 July 1843, the President of the Netherlands Boundary Commission
addressed a letter to the Councillor of State, the [p 244] Governor of North
Brabant, transmitting to him two true copies of the description of the
boundaries as definitively agreed by the Mixed Commission. Among the annexes
to this letter was the text of Article 90 as referred to (resolution of 4
April 1843), but without the transcript of the Minute indicated at the end
of that resolution. It doubtless appeared to be unnecessary to send a
transcription in view of the fact that the Communal Minute of 1836-1841 was
well known to the authorities of the commune of Baarle-Nassau. It must be
inferred that the present text of the Minute of Article 90 was not at that
time known to the authorities of that commune (Counter-Memorial, Annex
XXXVIII).
In a letter of 29 April 1844, the Councillor of State, the Governor of North
Brabant, informed the burgomaster of Baarle-Nassau of the impending placing
of boundary marks in accordance with the Treaty with Belgium and told him
which were the plots on which these boundary marks were to be placed. He
attached to his letter a part of the boundary minute in so far as that
minute related to that commune. The extract from the Annex to that letter
consists only of the reproduction of the wording of the resolution of 4
April 1843 (which had become the first part of Article 90), without the text
of the minute inserted in Article 90 of the Descriptive Minute. At this time
the burgomaster of Baarle-Nassau could not have known the text of this
minute as reproduced in Article 90; he had absolutely no need of the text of
the Minute which the resolution of 4 April 1843 had decided upon because he
knew it perfectly well.
It is clear from these two letters that neither the Governor of North
Brabant, in July 1843, nor the burgomaster of Baarle-Nassau, in April 1844,
had before them the aprocryphal text inserted in Article 90.
***
It is quite clear that the intentions of the Parties were not respected at
the time of the implementation of the first part of Article 90, when there
was inserted after that part a document other than that decided upon by the
Boundary Commissioners. This part of the 1843 Convention should therefore be
restored in accordance with the sole consent given. The minute of Article 90
is not that which was to fix the status quo of the disputed plots; this
status quo is to be governed by the Communal Minute of 1836-1841. This had
been irrevocably decided by the Mixed Commission and the 1843 Convention
could not contain in its text something different.
***
If the matter be approached from the point of view that only the minute of
Article 90 is authoritative, the claim of the Netherlands is still apposite.
[p 245]
It must be remembered that the Communal Minute of Article 90 of the
Descriptive Minute, that to which the Convention refers, provides for the
possibility of certain amendments. For that minute (of Article 90) in its
penultimate paragraph provides that "mistakes which may later be discovered
to have crept into this Minute may be corrected by the two Parties, provided
however that the Party which requests or requires a correction shall
accompany its claim by clear legal evidence" (Memorial, Annex IV).
This paragraph shows that the Minute of Article 90 was open to amendment. It
even laid down upon whom should be the burden of proof and the kind of
evidence to be adduced by the Parties in order to secure the correction of
errors subsequently discovered. There was thus an express proviso relating
to errors contained in the minute of Article 90, which can be relied upon
either by the Belgian Government or by the Netherlands Government in order
to show the existence of mistakes.
The approval of the 1843 Convention did not as such Say the last word with
regard to the status quo recorded in that instrument; mistakes subsequently
discovered could still be alleged.
The evidence submitted by the Netherlands Government is effective and
conclusive as showing a mistake contained in the communal minute of Article
90. This evidence is "clear" and "legal"; it is based on the very wording of
the original Communal Minute of 1836-1841, a document the validity of which
has not been challenged by the Belgian Government.
Furthermore, the Netherlands—as will be seen below—have over a long period
of years exercised effective, notorious and peaceful possession of the
disputed plots, since the 1843 Convention. This constitutes further evidence
of the status quo of the Netherlands recognized by the Communal Minute of
1836-1841.
Reliance has been placed upon the principle of the upholding of treaties.
But that principle—which in any event is not an absolute one—is in no way
opposed, particularly when there is a clause expressly providing therefor,
to the correction of clerical errors which they may contain, provided such
errors be shown really to exist by genuine evidence of a clear and
unchallengeable nature.
The principle of respect for treaties is thus fully applied; that principle
does not require acceptance of a treaty which is not juridically valid in
one of its parts.
***
For almost one hundred years the Convention of 1843 was applied in a manner
which does not conform with the text of the Communal Minute included in
Article 90 of the Descriptive Minute; although that article regards the
plots as Belgian, these same plots have actually always been submitted to
Netherlands sovereignty. Such [p 246] a situation appears to confirm, as
maintained in the Netherlands argument, the fact that the authentic Communal
Minute was replaced by another, the existence and contents of which are
unknown. A divergence had arisen between the existing practice in respect of
the disputed plots and the Descriptive Minute; this divergence was not drawn
to the attention of the two Governments until 1890, at the time of the draft
Convention of 1892. It was then that the oversight which had occurred in
respect of Article 90 of the Descriptive Minute of the Convention of 1843
and which had passed unnoticed by the two Governments became apparent.
This effective possession of the plots, contrary to the Minute inserted in
Article 90, constitutes supplementary evidence of the mistake alleged to
have occurred by the Netherlands Government.
In a letter to the Minister of the Netherlands at Brussels dated 20 August
1890, the Minister for Foreign Affairs of Belgium stated: "the Treaty of
1842 having laid down the staturs quo, it seems preferable to refer to the
Treaty rather than to the Convention of 1863"; he was no doubt referring to
the Convention of 1843 (Counter-Memorial, Annex XLVII). The status quo was
to prevail over the provisions of the Convention of 1843.
The map appended to the Minute of delimitation of the two Baarles of 1826
clearly shows that the plots in question did not belong to the commune of
Baede-Duc. The value of this map cannot be dismissed without examination
(Rejoinder, Annex II).
In Article 3, the Convention of 1843 confers upon the topographical maps to
a scale of 1 : 10,000, which were prepared and signed by the Commissioners,
the same force and value as the provisions of the Convention. The map
adduced by Belgium as supplementary evidence, which consists of a sheet from
a special map, mentions in its legend plots belonging to Belgium, plots that
were unallocated as between the two Kingdoms and plots belonging to the
Netherlands. The first of these are coloured in brown, the second in pink
and the third are not coloured. This map is not one of the maps referred to
in Article 3 which has been cited above, for that map indicates many plots
in pink without attributing them to one or the other of the two States. That
map does not take into account the Minute which was adopted in Article 90
and in which the plots are attributed either to Baerle-Duc or to
Baarle-Nassau; this Minute does not indicate that there were unallocated
plots. This map remains outside the facts agreed to in the Communal Minute
inserted in Article 90. This map should be considered as a whole and not in
one of its parts alone; the probative value of this map is not conclusive.
Moreover, the map annexed to the Minutes of the Boundary Commission of 5
September 1887 does not show the disputed plots as being Belgian territory
(Counter-Memorial, Annex XLVI).
On the other hand, the well-established and conclusive legal facts relied
upon below are in complete disagreement with what is shown [p 247] on the
map in question. Such a circumstance deprives the map of any probative
value.
What appears on the Belgian military staff map of 1871 does not have the
importance attributed to it in the present case, since it has not been shown
that the Netherlands authorities had knowledge of it (Memorial, Annex XIII,
p. 31). On this map, the attribution to Belgium of the disputed plots
constitutes no more than a repetition of the mistake already indicated in
the Communal Minute inserted in Article 90. What is shown on the map cannot
be regarded as having any effect with regard to sovereignty; nor can one
attribute to it the value of an act of sovereignty.
***
It has also been contended by the Belgian Government that, at the time of
the draft Convention of 1892, it was agreed that the disputed plots belonged
to Belgium. The purpose of this Convention was to put an end to the enclaves
and the draft confined itself to putting the enclaves back into one only of
the two territories, without discussing to which of them the plots belonged,
by effecting mutual cessions. In order to achieve their purpose of putting
an end to Belgian enclaves in the Netherlands and Netherlands enclaves in
Belgium, the Parties based themselves exclusively on the erroneous data in
Article 90 of the Minute, without further examination. This unratified
Convention cannot be invoked against the Netherlands. The settled case law
of the Permanent Court of International Justice and of our own Court does
not allow reliance to be placed upon proposals made in the course of direct
negotiations which do not lead to a complete agreement. The admission made
on that occasion by the Netherlands has not deprived it of its right to
challenge that admission. The Netherlands did not make an outright
admission; the draft Convention is a complex instrument and is therefore
indivisible. Moreover, after 1892 the situation of the plots remained
unchanged; Netherlands sovereignty continued to be exercised over this small
territory without any claim being put forward on behalf of the Belgian
Government; such a situation clearly shows that, in the opinion of both
Governments, the alleged admission had no legal effect.
It has been asserted that the Convention of 23 April 1897 regarding the
repurchase of the Tilburg-Turnhout railroad recognized Belgian sovereignty
over the disputed plots. This Convention has not been produced before the
Court; in support of this assertion reliance has been placed upon an extract
from the Statement of Reasons for the Convention as laid before the
Netherlands Parliament (Reply, Annex XII). But the evidence submitted by the
Netherlands Government, cited in paragraphs 27 and 36 d) of the Rejoinder,
despite the explanation given during the oral argument by Counsel for
Belgium (Oral Proceedings, p. 113), enables it to [p 248] be maintained that
the enclaves referred to in that Statement of Reasons are not the disputed
plots. The dues paid by the Netherlands Government could not be exacted in
respect of the property occupied by the railroad, for that property had been
transferred to the Netherlands Government (Counter-Memorial, Annex LI, p.
152).
***
The Netherlands Government puts forward another title of sovereignty as
against the claims of the Belgian Government. It maintains that it has
exercised the functions of sovereignty over the plots during the years
subsequent to the Convention of 1843.
The facts relied upon in support of this position are as follows:
I. The disputed plots belonged to different owners during the period from
1845 to 1957 and Annex LI of the Counter-Memorial gives the details
regarding these changes. Reliance is placed upon conveyances, private or
public, and upon distributions and cessions. In all these instruments it is
expressly stated that the properties mentioned therein are a part of the
commune of Baarle-Nassau. The following are the dates of these operations
until 1921: 31 January 1845, 29 January 1845, 24 February 1845, 15 March
1856, 20 March 1860, 3 August 1863, 20 May 1863, 19 April 1866, 16 August
1866, 22 January 1867, 8 July 1867, 22 July 1867, 6 May 1895, 1 July 1898,
22 April 1904, 21 May 1904, 4 October 1904, 28 September 1904, 23 October
1905, 5 December 1913 and 16 January 1914. All these conveyances are entered
in Dutch registers. They refer to Netherlands surveys as well as to their
numbering therein. The tax payable on these conveyances is paid to
Netherlands offices. These conveyances are made between the inhabitants of
the two communes who are of Belgian and Dutch nationality. All these facts
were undoubtedly publicized in so far as the officials of Baerle-Duc and
Antwerp were concerned.
It is necessary to scrutinize more closely certain of these conveyances.
On 31 January 1845 Prince Frederick of the Netherlands ceded to the
Government of the Netherlands certain heathlands which belonged to him,
among which is included plot No. 91. By an Order of the Minister for Finance
of the Netherlands, dated 23 December 1846, the rights of the Domain over
this plot are recognized (Counter-Memorial, Annex XLIII). This same plot, as
belonging to the Domain of the Netherlands State, was the subject of a
public sale on 15 March 1856 (p. 109).
By a conveyance dated 16 August 1866, Hubert Antoine de Poorter of Antwerp
sold to the Société anonyme des Chemins de fer du Nord de la Belgique
property situated in the commune of Baarle-Nassau for the establishment of a
railway from Turnhout to Tilburg. This was a part of the disputed plots. [p
249]
2. In 1851, plot No. 91 was the subject of a sale by the Netherlands State
Domain. The commune of Baerle-Duc claimed for its inhabitants, before the
Breda Tribunal, a right of usufruct over this plot. It did not therefore
claim that this plot was a part of its territory for in that case it would
have had to apply to the Belgian courts. This is an exercise of civil
jurisdiction by the Netherlands courts over one of the plots.
3. As is clear from the relevant documents, the plots were subjected to
Netherlands land tax. This constitutes a prolonged and continuous
manifestation of Netherlands sovereignty over the plots.
4. On 4 November 1864, the Minister for the Interior granted a concession
relating to the Tilburg-Turnhout railway in so far as it had to cross
Netherlands territory and the plots in question.
5. When this railway was being built, a portion of the plots had been
indicated for expropriation by the Netherlands authorities in December 1866.
Such a measure does indeed constitute a governmental act; a voluntary sale
occurred subsequently.
After the draft Convention of 1892, the factual situation was maintained
unchanged. New houses were built on the plots in 1904, former heathlands
were brought into cultivation, and the inhabitants of the plots entered
births, marriages and deaths in the registers of their commune at
Baarle-Nassau. It was not until 1921 that the Belgian Government, for the
first time, submitted to the Netherlands Government its claims of
sovereignty over the plots.
***
Without formally challenging these facts, the Belgian Government urges
against them that it had entered the plots on its survey and that it had
included them upon a military map. It further relies upon the unratified
Convention of 1892 and a further Convention of 1897 concerning the
repurchase of the railroad. The plots are said to have been the subject of
transfer deeds entered in the Belgian survey for 1896 and 1904.
The probative value of the military map of 4 October 1871 (Memorial, Annex
XIII) and of the draft Convention of 1892 and of the Convention of 1897 have
been dealt with above: it is not necessary to revert to this matter here.
The plots were to appear in the Belgian survey in 1847 (Memorial, Annex
XII), but this entry had no practical consequences, as is clear from the
letter of IO July 1890 from a Belgian official (Reply, Annex VIII); plot No.
92 appeared only on the survey map of Baarle-Nassau and plot No. 91 bears
the number 71 in the Belgian [p 250] survey but includes Nos. 189, 191, 193,
203, 205, 206, 207 and 208 of the Netherlands survey. The successive
alterations of the plots on the Netherlands survey as well as the entry of
transfer deeds on the Netherlands registers are confirmed beyond any doubt
by the documents embodied in Annex LI of the Counter-Memorial. The transfer
deeds made in 1896 and 1904 were also entered in the Netherlands registers
(Counter-Memorial, Annex LI, pp. 149 and 168).
***
In all the foregoing cases, the Netherlands Government has exercised
preponderant governmental functions in respect of the disputed plots,
without these having given rise on the part of the Belgian Government to any
protest or any opposition. This prolonged tolerance of the Belgian
Government in this respect has created an indisputable right of sovereignty
in favour of the Netherlands Government. There is no evidence that Belgium
claimed restitution of the parcels before 1921, or that any Belgian
activities occurred thereon. Reference may here be made to the importance
which the Court gave, in the Fisheries case, to the absence of protests by a
government in the consolidation of a right (I.C.J. Reports 1951, p. 138). In
the Eastern Greenland case the Permanent Court did not consider that it
could neglect governmental acts, even when the Norwegian Government had made
certain protests or reservations (P.C.I.J., Series -4/B, No. 53, pp. 62-63),
for it recognized the existence of two elements required to establish a
valid title to sovereignty, namely, the intention and the will to exercise
such sovereignty, and the manifestation of State activity. Sovereignty over
the Minquiers and Ecrehos was decided by this Court exclusively on the basis
of facts similar to those relied upon by the Netherlands Government in the
present case (I.C.J. Reports 1953, pp. 67-70).
Such an intention to exercise sovereignty is particularly notable after the
Convention of 1843 and after the draft Convention of 1892. The Netherlands
Government has continued to regard these plots as belonging to it, and to
exercise there governmental functions in a public and peaceable way. These
facts have established Netherlands sovereignty over the disputed plots.
***
In the final analysis, Article 90 of the Descriptive Minute which is annexed
to the Convention of 1843 and which is a part of that Convention provides in
the first part that the Communal Minute signed on 22 March 1841 shall be
inserted "word for word" as a second part of Article 90. But the Minute
which is reproduced is not a literal copy of the Communal 3linute signed on
22 March 1841.[p 251]What is involved is a provision of the Convention of
1843 which is not legally valid. Such a provision cannot constitute a valid
title of sovereignty.
On the other hand, the title which is based on the effective, peaceable and
public exercise of State functions by the Netherlands over the disputed
plots must be given preference over the title of sovereignty relied upon by
Belgium, which has never really exercised the State competence which it
regards itself as holding.
(Signed) Armand-Ugon.
[p 252]
DISSENTING OPINION OF JUDGE MORENO QUINTANA
[Translation]
To my great regret, I am unable to concur in this case in the opinion of the
majority of my colleagues of the Court, nor in the decision which the
Judgment gives, nor in the reasons on which that Judgment is based. I base
my own position on considerations of fact and of law, which have led me to
take a dissenting view. These considerations are as follows.
***
By a Special Agreement dated 7 March 1959, the Governments of the
Netherlands and of Belgium submitted to the International Court of Justice
their dispute regarding sovereignty over the plots shown in the Survey and
known from 1836 to 1843 as Nos. 91 and 92, Section A, Zondereygen. The
diplomatic negotiations, begun between the two Governments at The Hague in
March 1955, failed to arrive at a direct settlement of the affair; while a
treaty of mutual cession of territory dated II June 1892—which allotted the
disputed plots to the Netherlands—\vas never ratified.
The plots in question, which if constituting Belgian enclaves in Netherlands
territory are part, in their turn, of other enclaves— those of Baerle-Duc
(or Baarle-Hertog in Flemish) in Netherlands territory, which belongs to
Belgium, or those of Baarle-Nassau, itself enclosed in the Belgian enclave
already referred to. There is a veritable network of Belgian enclaves in
Netherlands territory, and of Netherlands enclaves in Belgian territory;
this represents a very ancient situation, along a frontier which is for the
most part continuous. This network of enclaves may be compared, contrary to
the case of other enclaves, to a veritable jigsaw, as it were, made from a
geographical map. It complicates extremely—as is easy to understand—the
problems of every kind which arise for the administrations of the two
countries, in particular those which relate to jurisdiction. Moreover, the
two Baarles—as I have been able to see for myself—in reality constitute one
and the same village.
From the material point of view, the plots do not seem to have a very great
importance; that could hardly be so, as their whole area covers only
fourteen hectares. It is rather the question of sovereignty between Belgium
and the Netherlands which is at stake.
***
The dispute about the plots in question originates from the division of the
ancient seigneury of Baarle into two seigneuries, as a [p 253] consequence
of the division, in the thirteenth century, of the holdings of the Berthout
family. The commune of Baarle-Nassau fell to the family of that name, who
were Barons of Breda; later it passed to the United Provinces, which were
the forerunners of the present Kingdom of the Netherlands. The commune of
Baerle-Duc belonged to the House of Brabant and afterwards to the Southern
Netherlands, which were the nucleus of the present Kingdom of Belgium. But
as the commune of Baarle-Nassau was rich in heath-lands, which Baerle-Duc
was without, the inhabitants of the latter commune got into the habit of
making use of those which they lacked. Hence arose a certain network of
interests between the two communes.
When Belgium and Holland were separated in 1831, the question arose of
drawing the common boundaries between the two countries. Difficulties arose
about a proposal for exchanges of territory, and the situation resulting
from the existence of the enclaves was maintained. Article 14 of the Treaty
of 5 November 1842 maintained the status quo as regards the villages of
Baarle-Nassau and Saerle-Duc. Article 14, paragraph 5, of the Boundary
Convention between the two countries signed at Maastricht on 18 August 1843
confirmed this situation. In Article 3, this Convention contains a
reference, as regards the boundaries, to other documents which have the same
legal value as the Convention.
The document which is the subject of this reference is the Communal Minute
of 22 March 1841 which drew up a list of the respective plots of the two
communes. As is customary, this document was drawn up in two copies, one for
each of the Parties. The Netherlands has produced its copy; the Belgian copy
seems to have disappeared. In any case, it is unlikely that original
authentic copies of the same legal document can differ in their text. There
is only one Minute: that referred to in Article I of the Annex to the Minute
drawn up by the 251st meeting of the Mixed Boundary Commission. It is not
conceivable—and the fact is far from having been proved by Belgium—that the
Boundary Commissioners should have had two copies of the same Minute
differing in their texts. It is still less conceivable—as Counsel for the
Belgian Government maintains— that, by some inexplicable manoeuvre, the copy
intended for the commune of Baerle-Duc was that which was in possession of
the commune of Baarle-Nassau. The copy produced by the Netherlands
Government is clear on the subject of the disputed question: the plots
belong to the commune of Baarle-Nassau.
***
As it arises for the Court, the problem to be resolved derives from the
interpretation of a treaty. The principles involved are well [p 254] known;
they have been established by doctrine and, on many occasions, by the
decisions of the Permanent Court and of our own Court. Certain suppositions
have been put forward by the Parties in the pleadings and oral arguments in
the case with a view to explaining seemingly strange situations. Rut the
Court need not dwell upon these suppositions, for a judgment cannot adopt a
capricious interpretation, nor found its view of the evolution of events on
venturesome hypotheses. Judgment must be given on the basis of recognized
facts which are founded on legal data.
The principal legal instrument in this case is the Maastricht Boundary
Convention already mentioned, which regulates a territorial status quo as it
existed at the date of signature. This regulation deals legally with a
situation of fact which can and should be noted, but not changed. The
Boundary Commissioners appointed by virtue of the Treaty signed at London on
19 April 1839 had a specific task, which cannot be distorted. They were a
technical body and not a judicial commission. The frontier plots under
Netherlands authority then belonged to the Netherlands, and those under
Belgian authority to Belgium. It is a question of factual verification, and
not one of enumerative description or graphical reproduction—since the
Convention in question is in fact accompanied by a Descriptive Minute, and
Article 90 of that document establishes that plots 91 and 92 form part of
the commune of Baerle-Duc.
The Descriptive Minute is also borne out by a map which was signed by the
plenipotentiary delegates of the two countries. As a result of this
description, the said map, or any other document, which might be the
consequence of a mistake in numbering, would be of highly doubtful value.
One is aware, moreover, of the value— the very relative value—which
international law attaches to geographical maps. This was made sufficiently
clear in the Award of arbitrator Max Huber in the Island of Palmas case (see
United Nations, Reports of International Arbitral Awards, Vol. II, pp.
852-854)
But this Descriptive Minute is supposed to transcribe "word for word", as
the Boundary Commissioners decided at their 251st meeting, what was
previously indicated in the Communal Minute drawn up in 1841. To transcribe
"word for word" is not a simple directive but involves compliance with a
clear and precise obligation: that of transcribing ne varietur a definite
text, and not of changing, whether deliberately or by a clerical error, the
status juris of two territorial plots. And this Communal Minute states the
contrary of what the Descriptive Minute affirms: the plots belong to
Baarle-Nassau. Was this a mistake, or an intentional rectification made by
the Boundary Commissioners in Article 90 of the Descriptive Minute? If it
was a rectification, the Boundary Commissioners had in no way the power to
make it, and, even if they had that power, they should have expressed
themselves in a clear [p 255] and categorical fashion in the same document
in which they gave the result of their work.
Moreover, the Communal Minute merely notes the existing situation of fact.
Holland, ever since she historically constituted an independent State, and
not Belgium, is the Power which exercised sovereignty over the plots in
question. That situation is even more significant if regard be had for the
fact that it is manifested as pertaining to the exercise of a legitimate
authority, after the signature of the Convention of 1843, of which it seems
merely to be a natural consequence. It is Holland which accorded the use of
the heathlands and collected the land tax on the plots, entered in its
registers private legal acts occurring within the area, was responsible for
the communal administration of the said plots, applied its national
legislation to them, and in 1886 arranged for a forced expropriation
affecting them. In 1853, Holland even proceeded to the sale—as domina
terrarum—of plot No. 91. Such a legal act, in so far as it has a character
jure gestionis, pertains to the power of a State, and not of a private
person. And such facts are so striking— they are self-evident—that in my
view they remove all doubt as to the legitimacy of Netherlands sovereignty
over the plots in question.
These facts, which are the capital facts in the case, are not contested by
the other Party. The latter admits them, but gives them an interpretation
which was not that of the international decisions in the well-known cases of
the Banks of Grisbadarna (see Hague Court Reports, pp. 130-132), of the
Island of Palmas (see U. N. Reports, etc., Vol. II, p. 870), of the Island
of Clipperton (see U. N. Reports, etc., Vol. II, pp. 1109-1110), of the
Legal Status of Eastern Greenland (see P.C.I.J., Judgments, etc., Series
A/B, No. 53, pp. 45-46) and of the Minquiers and Ecrehos (see I.C.J. Reports
1953, p. 65). Belgium, which was not separated from Holland until 1831, has
since that date, and up to 1921 perhaps—almost a century—made no forma1
protest against the exercise of sovereignty by the other country. It could
clearly not do so because the possession exercised by the Netherlands was in
no way a defective one and was based upon an incontestable legal title:
Article 14, paragraph 5, of the Maastricht Convention, which established the
status quo. It was a possession exercised in all good faith, with the animus
domini which characterizes a situation of this kind and which the law
protects. Let us recall, moreover, the well-known principle of uti
possidetis in Book XLIII, Chapter 17, paragraph 1, of the Digest: "As you
possess, you shall continue to possess."
***
If a provision such as that of Article 14, paragraph 5, of the Maastricht
Convention provides for the maintenance of a situation [p 256] of fact, if
this situation of fact is contrary to the stipulations of a Minute which
forms part of the Convention and to the attestation on a map drawn up to
this effect; if, moreover, this Minute is in flagrant contradiction with the
document on which it should be based, it is clearly the interpretation of
the Convention which should prevail in the mind of the international judge.
On this question, the Award of Arbitrator Lardy on the delimitation of the
Island of Timor lays down clearly that the real intention of the Parties
prevails over an erroneous terminology (see Hague Court Reports, p. 362),
and the Advisory Opinion given by the Permanent Court on the conditions of
labour in agriculture stated that a treaty must be read as a whole and not
on the basis of phrases detached from their context (see Judgments, etc.,
Series B, Nos. 2 and 3, p. 23). For, that Article 90 of the Descriptive
Minute in question can constitute, by its text alone, a source of
territorial sovereignty is an idea legally unacceptable. And, in the present
case, this sovereignty can only flow from two elements: the text of the
Boundary Convention and the resulting situation of fact. It is they which
give the key to the interpretation of the said instrument.
In the Maastricht Convention, the delimitation of the two Baarles is a very
special case. Article I of this Convention establishes the frontier "in an
exact and invariable way" save—and this is an exception—for the communes of
Baerle-Duc and Baarle-Nassau, in respect of which—so runs the text—"the
status quo shall be maintained in virtue of Article 14 of the Treaty of 5
November 1842". According to Article 14, paragraph 5, of the Convention of
Maastricht, the negotiators agreed that a continuous linear delimitation was
practically impossible and that such delimitation was the subject of a
"special study". Now, this special study was never carried out, since the
simple enumeration in Article 90 of the Descriptive Minute cannot be
regarded as such. What falls for interpretation is the meaning of the Treaty
and this can only be the maintenance of the status quo on the basis of a
document—the Communal Minute of 1841—the authenticity of which has not been
questioned by the Parties. In producing it in this case, the Netherlands has
discharged its obligation as to the burden of proof resting on each of the
Parties under Article II of the Special Agreement submitted to the Court and
in accordance with the law laid down by the Court in the Minquiers and
Ecrehos case (see Reports 1953, p. 52). Belgium— which has not produced its
copy—must, in accordance with a well-known principle of procedure, bear the
consequences of its negligence. This reasoning, which is clear and
categorical, leads naturally to the conclusion that the Descriptive Minute
accompanying the Maastricht Convention has no more value, in Article 90,
than that of an incorrect copy of the Communal Minute.
This real intention of the Parties, to which international decisions have
referred, and which is at the basis of any negotium juris, may [p 257] also
be inferred in the present case from the minutes of the meetings of the
Boundary Commissioners of the Parties. The Permanent Court has given a very
clear idea of the importance of preparatory work for the interpretation of
treaties in its Advisory Opinion on the treatment of Polish nationals in
Danzig (see Judgments, etc., Series A/B, No. a, p. 33). In the Annex to the
Minute of the 251st meeting held on 12 June 1843 by the Boundary
Commissioners, it was stated that the Communal Minute of 1841 was
"transcribed, word for word, in the present Article". Such a statement on
the part of the Mixed Commission, which consisted of the Boundary
Commissioners, gives a definite decision regarding the plots in question. It
is a direct consequence of the earlier decision adopted by that Commission
at its 225th meeting (4 April 1843), which acknowledged the full value of
this Communal Minute by allotting the disputed plots to Holland, at the same
time annulling—in substituting for them the statements of an authentic
document— the provisions adopted at the 175th and 176th meetings.
All this procedure was perfectly logical, since any enclave is a derogation
from the principle of territorial continuity, while the special situation of
plots 91 and 92 of Zondereygen was even more abnormal, since they did not in
any way constitute a unity in themselves and because they were fairly
distant from the Belgian enclave of Baerle-Duc. It is perfectly
understandable therefore that the two Parties should have wished to correct
by the Treaty of 1892—through compromise—a legal situation which the
Descriptive Minute showed to be incorrect. Far from constituting, in my
view, an argument in favour of the Belgian thesis, this Treaty establishes
the exact contrary. The Treaty, useful as praezamptio juris, has no value as
a proof of Belgian sovereignty over the plots. In its Judgment in the case
concerning the Factory at Chorzow (Merits), the Permanent Court recognized
that it could not take into account opinions which the Parties may have made
during negotiations when such negotiations have not led to a complete
agreement (see Judgments, etc., Series A, No. 17, p. 51), while our own
Court, in its Advisory Opinion on reservations to the Convention on
Genocide, held that although signature constituted a preparatory stage in
the drawing up of a treaty, its lack of ratification deprived it of legal
effect (see I.C.J. Reports 1951, p. 28).
It is, however, necessary to draw attention to the existence of an
indisputable clerical error in the Descriptive Minute, when it allots the
disputed plots to Baerle-Duc. This error is so obvious that it is only
necessary for the Court to observe its existence; and this observation is
inescapable. How this error may have come to be made is not a matter which
interests the Court. An international court of justice is not called upon to
make police enquiries. For the same reason, the Court need not consider
other hypotheses, as strange as the one put forward by Counsel for Belgium,
to the [p 258] effect that the copyist of the Communal Minute of 1841
omitted two lines of a supposed earlier list and thus, in running the text
together, attributed the plots to Baarle-Nassau.
A mistake of fact—as the most qualified writers in international law teach
us—vitiates the consent of the Parties to a legal instrument such as a
treaty. This defect in consent involves the total or partial nullity of the
instrument in question. In the present case, it is only Article 90 of the
Descriptive Minute, which allots the plots to Baerle-Duc, that would be
affected by the decision of a judicial body. The other provisions of the
Convention of Maastricht, which reflect the intention of the Parties, would
be unaffected. And, so as to conform with this decision, it would be for the
Parties to regulate their new legal situation according to the principles of
international law—as they had shown the will to do on the occasion of the
abortive Treaty of 1892.
I conclude by giving my opinion—as the Court is requested to— that the plots
in question belong to the sovereignty of the Kingdom of the Netherlands.
(Signed) Lucio M. Moreno Quintana. |
|
