20 June 1959

 

General List No. 38

 
     

international Court of Justice

     
 

Sovereignty over certain Frontier Land

 
     

Belgium

 

v. 

Netherlands

     
     
 

Judgment

 
     
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BEFORE: President: Klaestad;
Vice-President: Zafrulla Khan;
Judges: Basdevant, Hackworth, Winiarski, Badawi, Armand-Ugon, Kojevnikov, Sir Hersch Lauterpacht, Moreno Quintana, Cordova, Wellington Koo, Spiro-poulos, Sir Percy Spender
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1959.06.20_sovereignty.htm
   
Citation: Sovereignty over certain Frontier Land (Belg. v. Neth.), 1959 I.C.J. 209 (June 20)
   
Represented By: Belgium: M. Yves Devadder, Legal Adviser to the Ministry of Foreign Affairs, as Agent;
assisted by
Me Marcel Grégoire, of the Bar of the Brussels Court of Appeal, as Advocate;
M. Louis Geeraerts, Inspector-General in the Ministry of Foreign Affairs;
M. Alfred van der Essen, Director, Ministry of Foreign Affairs, as Experts;

Netherlands: M. W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs,
as Agent;
assisted by
Me C. R. C. Wijckerheld Bisdom, of the Bar of the Supreme Court of the Netherlands, as Counsel;
Me J. Schepel, of the Bar of the Supreme Court of the Netherlands;
Mlle L. Lagers, Chief of Section, Ministry of Foreign Affairs, as Experts.

 
     
 
 
     
 


[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.

 
     

 

 

 

 

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