[p5] The Court,
composed as above, delivers the following judgment:
 By an Application instituting proceedings filed in the Registry of the
Court on August 1st, 1936, in accordance with Article 40 of the Statute and
Article 32 of the Rules of Court, the Government of the Kingdom of the
Netherlands has instituted before the Court proceedings in regard to the
diversion of water from the river Meuse. In order to establish the
jurisdiction of the Court, the Applicant relies on the declarations made by
the Netherlands and by Belgium recognizing as compulsory the jurisdiction of
the Court, in conformity with Article 36, paragraph 2, of the Statute of the
 According to the Application, the subject of the dispute is the question
whether, on the one hand, the execution by Belgium of various works in
connection with the construction of the Albert Canal and, on the other hand,
the manner in which, without the consent of the Netherlands, Belgium at
present supplies and appears to intend in future to supply with water
existing or projected canals in the north of her territory, are consistent
with the rights ensuing to the Netherlands from the Treaty signed at The
Hague on May 12th, 1863, establishing the regime for taking water from the
 After a brief statement of the facts and of the grounds on which the
claim is based, the Application asks the Court:
“I. To adjudge and declare that:
(a) the construction by Belgium of works which render it possible for a
canal situated below Maestricht to be supplied with water taken from the
Meuse elsewhere than at that town is contrary to the Treaty of May 12th,
(b) the feeding of the Belgian section of the Zuid-Willems-vaart, of the
Campine Canal, of the Hasselt branch of that canal and of the branch leading
to Beverloo Camp, as also of the [p6] Turnhout Canal, through the Neerhaeren
Lock with water taken from the Meuse elsewhere than at Maestricht, is
contrary to the said Treaty;
(c) Belgium's project of feeding a section of the Hasselt Canal with water
taken from the Meuse elsewhere than at Maestricht is contrary to the said
(d) Belgium's project of feeding the section of the canal joining the
Zuid-Willemsvaart to the Scheldt between Herenthals (Viersel) and Antwerp
with water taken from the Meuse elsewhere than at Maestricht is contrary to
the said Treaty.
II. To order Belgium
(a) to discontinue all the works referred to under I (a) and to restore to a
condition consistent with the Treaty of 1863 all works constructed in breach
of that Treaty ;
(b) to discontinue any feeding held to be contrary to the said Treaty and to
refrain from any further such feeding.”
 On August 1st, 1936, notice of the Netherlands Government's Application
was given to the Belgian Government; on August 7th the communications
provided for in Article 40 of the Statute and Article 34 of the Rules were
 As the Court, at the beginning of the proceedings, included on the Bench
no judge of Belgian nationality, the Belgian Government availed itself of
its right under Article 31 of the Statute, and nominated in that capacity
Professor Ch. De Visscher, who was subsequently elected, on May "27th, 1937,
by the Assembly and Council of the League of Nations to be a member of the
 As the Court was not sitting, the acting President, by an Order made on
August 6th, 1936, fixed the time-limits for the filing of the Memorial,
Counter-Memorial, Reply and Rejoinder. The documents of the written
proceedings were duly filed within the time-limits thus fixed, the last of
which, namely that for the filing of the Rejoinder, expired on April i2th,
1937; the case thus became ready for hearing on that date.
 In its Memorial, the Netherlands Government repeated the submissions
made in the Application.
 In the Counter-Memorial, the Belgian Government presented the following
"May it please the Court,
To declare the submissions of the Applicant to be ill-founded,
To adjudge and declare:
1. That the mere possibility of works being used for purposes inconsistent
with the Treaty of May 12th, 1863, governing the taking of water from the
Meuse, does not suffice to justify the condemnation of such works and to
secure their demolition, since bad faith may not be presumed; [p7]
2. That the feeding of the Zuid-Willemsvaart and the canal joining the Meuse
and the Scheldt and its branches is not rendered incompatible with the
Treaty mentioned above by the fact that lockage water arising front the
working of the Neerhaeren Lock–operated bona fide for the passing of
boats–is added to the water from the Meuse coming from the intake at
Maestricht–as the Neerhaeren Lock cannot be treated more unfavourably than
the Bosscheveld Lock;
3. No breach of Belgium's engagements under the above-mentioned Treaty will
result from the circumstance that after the Albert Canal is brought into
use, water derived from the Meuse near Liege will, between Hasselt and lock
IV, pass along the section of that canal coinciding with a section of the
Hasselt branch of the canal joining the Meuse and the Scheldt;
4. Similarly, no inconsistency with Belgium's engagements will result from
bringing water derived from the same source into the section of the Albert
Canal between Pulle and Antwerp which coincides with the canal joining the
Meuse and the Scheldt ;
May it also please the Court, adjudicating upon a counterclaim in accordance
with Article 63 of the Rules of Court,
To adjuge and declare:
1. That the Borgharen barrage has been constructed in breach of the
stipulations of this same Treaty which is alleged by the Netherlands
Government to have been disregarded by the Belgian Government as regards
certain stipulations ; that is to say, that the local situation at
Maestricht provided for by the Treaty of 1863 has been altered by the
unilateral decision of the Netherlands Government; that this alteration has
rendered the proper application of the Treaty impossible, because the level
of the Meuse has been raised by the Borgharen barrage and the water-gauge
which had been placed there in accordance with the Treaty to enable the
diversion of water to be regulated in accordance with the level of the water
has been submerged ;
2. That the Juliana Canal, being a canal below Maestricht, within the
meaning of Article I of the Treaty, is subject, as regards the supply of
water to it, to the same provisions as the canals on the left bank of the
Meuse below Maestricht;
3. To reserve the rights accruing to Belgium from the breaches so
 In its Reply, the Netherlands Government prayed the Court:
"I. Rejecting all submissions to the contrary,
to give judgment in accordance with the submissions formulated by the
Netherlands Government in its Memorial presented to the Court on October
II. To declare that the submissions of the counter-claim presented by
Belgium are ill-founded. [p8]
III. To adjudge and declare,
1. That the establishment and working of the Borgharen barrage is not
inconsistent with the Treaty of May I2th, 1863, above mentioned and that no
right or interest on the part of Belgium is thereby injured;
2. That the Juliana Canal is not, as regards its water supply, subject to
the same provisions as the Zuid-Willemsvaart and the other canals on the
left bank of the Meuse below Maastricht ;
3. That in any case the feeding of the Juliana Canal has not been and is not
inconsistent with the Treaty of 1863 and that the mere fact that it would be
possible for the Netherlands to use certain locks on this canal in a manner
contrary to that Treaty does not in itself constitute a breach of that
 In its Rejoinder, the Belgian Government prayed the Court:
"Rejecting all submissions to the contrary,
To find in favour of the Respondent's submissions of January 28th, 1937.
In case the Court should be unable on certain points to find in accordance
with the submissions of the Respondent,
To declare in any case that the Applicant is committing an abuse of right (abus
de droit] in invoking the Treaty of May I2th, 1863, in order to protect new
interests (the Juliana Canal and the canalized Meuse) which were not
contemplated at the time of the conclusion of that Treaty, while the
interests which that Treaty was intended to protect are not in any way
As a second alternative,
To declare that, by constructing certain works contrary to the terms of the
Treaty, the Applicant has forfeited the right to invoke the Treaty against
As a third alternative,
To declare that the works forming part of the Albert Canal, including the
Briegden-Neerhaeren section, are merely the necessary consequences of the
works in connection with the Juliana Canal. By constructing the latter
canal, the Netherlands Government has caused it to be believed that a new
situation has arisen ; that is to say, that the Netherlands Government is
abandoning the use of the [p9] common section of the Meuse as a waterway; it
is not entitled to complain because the Respondent has taken action in
accordance with this new situation ;
As a fourth alternative,
To declare that the Treaty of 1863 has lapsed as a result of the action of
the Applicant in carrying out works which have altered the situation on
which the Treaty was based, that is to say, in particular, the raising of
the level of the Meuse at Maestricht and the construction of a new waterway
which deprives the common section of the Meuse of its function as a
 In the course of public sittings held on May 4th, 5th, 7th, l0th, 11th,
12th, 18th, 20th and 21st, 1937, the Court heard:
M. Telders, Agent for the Netherlands Government,
and M. de Ruelle, Agent, Maitre Marcq, Counsel, and M. Delmer, technical
adviser for the Belgian Government.
 The submissions presented in the documents of the written proceedings
were maintained in their entirety on either side at the oral proceedings.
 Numerous documents in support of their contentions have been produced
on behalf of each Party as annexes to the Application and to the documents
of the written proceedings and in the course of the oral proceedings [FN1].
[FN1] See list in Annex.
 At the hearing on May 7th, 1937, the Agent for the Belgian Government
suggested that the Court should pay a visit to the locality in order to see
on the spot all the installations, canals and waterways to which the dispute
related. This suggestion met with no opposition on the part of the
Netherlands Government, and the Court decided, by an Order made on May 13th,
1937, to comply with it. Adopting the itinerary jointly proposed by the
Agents of the Parties, the Court carried out this inspection on May 13th,
14th and 15th, 1937. It heard the explanations given by the representatives
who had been designated for the purpose by the Parties and witnessed
practical demonstrations of the operation of locks and of installations
 The questions at issue in the present case depend on the interpretation
and application of the Treaty which was concluded between Belgium and the
Netherlands on May 12th, 1863 [FN2], and came into force on July 14th of
that year. The purpose of this Treaty is defined in its Preamble as being
"to settle permanently and definitively the regime governing diversions of
water from the Meuse for the feeding of navigation canals and irrigation
channels" (de regler d'une maniere stable et definitive le regime des prises
d'eau a la Meuse pour I'alimentation des canaux de navigation et
[FN2] For text of this Treaty, see Annex.
 The Treaty was concluded because for a long time the two countries had
been unable to agree on a variety of questions connected with the use of the
waters of the Meuse.
 The Meuse is an international river. It rises in France in the
Department of the Haute-Marne, leaves French territory [p10] near Givet,
crosses Belgium, forms the frontier between the Netherlands and Belgium
below Lixhe and enters Netherlands territory a few kilometres above
Maestricht.. Between Borg-haren (a few kilometres below Maestricht) and
Wessem-Maas-bracht, the Meuse again forms the frontier between Belgium and
the Netherlands, then below Wessem-Maasbracht both banks of the river are in
 Until it reaches Venlo, in the Netherlands, the course of the river is
rapid and, in general, the river is shallow. It is a river which is fed by
rainfall, and not by the melting of readers ; consequently the flow of water
varies greatly. In its natural condition the Meuse above Venlo is of no
great assistance to navigation. Though for the most part it has been
canalized, the most important function of the Meuse, at any rate in Belgium
and in the Netherlands, is that of a reservoir for other waterways. As a
result of the geological formation, canalization works between Liege and
Venlo are difficult and costly. On the other hand, the people of the
territory through which the Meuse flows are accustomed to make use of water
transport, and where canals have been constructed for this purpose they must
in the main be supplied with water from the Meuse.
 In the XVIIth century, and again during the Napoleonic era, the
construction of a canal from Antwerp via Venlo to the Rhine was
contemplated. Though only a small part of this canal was actually
constructed, the subsequent schemes which were carried into effect were in
part founded on the same plans.
 After the constitution in 1815 of the Kingdom of the Netherlands,
William I initiated the construction of a canal from Maestricht to Bois-le-Duc.
This canal, known as the Zuid-Willemsvaart, was brought into use about the
year 1826. The water to feed the canal was derived from the Meuse at
Maestricht, through an intake known as lock 20.
 During the troubled conditions which prevailed between 1830 and 1839,
the supply of water to the Zuid-Willernsvaart was temporarily interrupted by
the military authorities at Maestricht, and in order to secure a supply of
water for the canal a new intake was created at Hocht by the inhabitants.
After the separation of the Netherlands and Belgium, the place at which the
Hocht intake was situated became Belgian territory.
 In 1845, under a treaty concluded between the Netherlands and Belgium
in that year, a new canal was constructed from Liege to Maestricht. This new
canal constitutes, in effect, a prolongation of the Zuid-Willemsvaart to
Liege, and had formed part of the original plans of King William I. It
connects [p11] with the Zuid-Willemsvaart at a spot inside the
fortifications of Maastricht, close to lock 20.
 After the completion of the Liege-Maestricht Canal, the
Zuid-Willemsvaart was fed from three different sources : firstly by water
which came from the Liege-Maestricht Canal; secondly, by water obtained
directly from the Meuse through lock 20 ; and, thirdly, by water also
obtained directly from the Meuse through the Hocht intake.
 At first there seems to have been no trouble with regard to the supply
of water for the Zuid-Willemsvaart. Subsequently, however, the Belgian
Government commenced the construction of a series of new waterways, running
westward from the northern end of the Belgian section of the
Zuid-Willemsvaart so as to effect a junction with the river Scheldt and to
provide means of communication for the district of the Campine. This series
of canals includes the Canal de la Campine, the Canal de Turnhout, the Canal
de Hasselt, and the Canal du Camp de Beverloo.
 The Campine is a heathy, district with a soil of a porous nature, and
owing to this latter circumstance large quantities of water were required
for keeping the Canal de la Campine supplied. A great deal of water leaked
 The sandy and unfertile nature of the Campine district led the Belgian
Government to initiate extensive irrigation schemes. The idea prevailed at
the time that if only it could be supplied with water, this district might
be converted into a fertile and prosperous agricultural area. These
irrigation works caused flooding in the Netherlands district of Brabant and
constituted one of the many sources of disagreement that prevailed between
the two countries at the time when the Treaty of 1863 was concluded.
 As the canals of the Campine area came into use and so long as the
extensive irrigation schemes were still considered feasible, Belgium desired
to obtain large supplies of water. The only supplies available were derived
from the Zuid-Willemsvaart and, therefore, ultimately from the Meuse.
Neither the supplies drawn from the intake at Hocht, nor the lock-water
which came into the Zuid-Willemsvaart from the Meuse, were adequate to
supply the quantities which Belgium sought to draw out at the northern end
of the canal. She therefore found herself obliged to construct at the side
of the Hocht Lock a lateral channel so that water could be drawn from the
Liege-Maestricht Canal irrespective of the use of the lock for the normal
purposes of navigation. By so doing she obtained a sufficient quantity of
water but she converted a part of the Zuid-Willemsvaart into a waterway more
like a swiftly flowing river than a canal. The rapidity of the current m the
canal impeded the navigation, and though efforts were [p12] made to allow
these additional supplies to pass into the canal at night-time, when the
barge traffic was not in progress, the use of the canal for traffic was
 For some ten years the technical experts of the two Governments
searched for a solution of the problem, the condition of things which had
arisen on the Zuid-Willemsvaart being equally inconvenient to the barge
traffic of both countries. Two successive Mixed Commissions proved abortive,
and a treaty, which was negotiated and signed in 1861, failed to secure
ratification because it was rejected by the Netherlands Second Chamber. It
was not until 1863 that the two countries were able to conclude a treaty
which was acceptable to both sides. This Treaty, dated May 12th, 1863, is
still in force and constitutes the treaty which has to be applied by the
Court in the present case.
 It will be of assistance towards an understanding of the general
economy of the Treaty of 1863 to give a short description of the unratified
agreement of 1861.
 Both treaties were worked out upon the footing that Belgium must have,
in order to supply her requirements, a definite quantity of water and, so
far as concerns the Netherlands, that this quantity of water would not be
such as to injure Netherlands interests. No stable situation could be
achieved as regards the use of the waters of the Meuse unless these needs
and interests were recognized. The mere provision of the water, however, was
not the only element to be taken into account; there were the interests of
navigation in the canals, particularly in the Belgian section of the
Zuid-Willemsvaart, a waterway which was of common interest to both Parties ;
there were also the interests of the navigability of the Meuse itself in the
sector below Maestricht, where there was no lateral canal, except in so far
as the Zuid-Willemsvaart itself served that purpose.
 The 1861 treaty was drafted on the following basis: the Netherlands
undertook to allow a fixed quantity of water to pass into the
Zuid-Willemsvaart through the lock at Maestricht. (The actual quantity was 7
cubic metres per second in winter; 5 2/3 per second in summer.) This water
was to come from the Liege-Maestricht Canal and was, therefore, taken from
the Meuse at Liege. Any quantity of water coming from the Liege-Maestricht
Canal over and above the amounts so fixed was to be turned into the river.
Out of the water so passed into the Zuid-Willemsvaart, the Netherlands were
to get 1 ½ cubic metre per second, which was to be evacuated through the
lock at Weert (in Netherlands territory). There was no provision in the 1861
treaty which affected the intake at Hocht. Belgium remained free to take
what she could through that [p13] intake. During the seasons when the Meuse
is low, the amount of water which Belgium could obtain at Hocht was not, in
reality, very great, because the level of the canal was so little below the
level of the river that the amount that could pass was necessarily
 This treaty appears to have been rejected because, amongst other
reasons, the authorities of the Netherlands province of Limburg pointed out
that it did not solve the problems which interested them, particularly the
excessive speed of the current in the Zuid-Willemsvaart.
 The solution of the difficulties between the two countries as regards
the waters of the Meuse was ultimately found by approaching them on a much
wider basis. By including the solution of various other problems which were
affecting the relations between the two countries at that date means were
found justifying each Party in making concessions which it would not have
felt justified in making unless it had received satisfaction in other
directions. The treaty with regard to the Meuse became part of a settlement
embracing discontinuance of the tolls on the Scheldt and the commercial
relations between the two countries.
 The three treaties into which the arrangement of 1863 was divided were
concluded on the same day, and the exchange of ratifications also took place
on the same date–July I4th, 1863– and was recorded in a single instrument,
but there is no juridical connection between the three; each of the three
treaties is entirely independent of the others ; in its application and
interpretation the treaty with regard to the waters of the Meuse, therefore,
stands entirely by itself. The interdependence is found only in the fact
that the concessions made by one or other of the Governments in one of the
treaties would not have been made without the concessions made by the other
Government in the other treaties.
 As regards the treaty relating to the waters of the Meuse, the acute
problem as stated above had been the excessive speed of the current
developed in the Zuid-Willemsvaart owing to the amount of water which
Belgium was taking from it. The Treaty of 1863 surmounted this difficulty by
the combined effect of three sets of stipulations: by raising the level of
the canal all the way from Maestricht to Bocholt, so as to increase the
transverse section and thereby enable more water to pass along without
increasing the speed of the current; by concentrating in one new intake the
withdrawal of water from the Meuse, this new intake being situated higher
upstream where it could feed the canal despite the fact that the level of
the canal was raised; and by enlarging the programme of works to be carried
out in the joint section of the Meuse so that more water could [p14] be
withdrawn from the Meuse without injury to the navigability of the joint
section of the river, a subject which at that time was of interest to both
 The new intake was located on Netherlands territory. It was not without
great reluctance that the Belgian Government accepted the plan that there
should be a single intake and that situated on foreign territory.
 For some time after its conclusion, the Treaty of 1863, subject to some
technical modifications introduced in 1873, must have satisfied the
requirements of both Parties. By the close of the century, however, it was
becoming clear that larger and better canals were required in order to meet
the commercial development which was taking place in the Netherlands and
Belgium, particularly as regards the development of the Netherlands
coalfields in the province of Limburg.
 In 1906, a joint commission was appointed, on the suggestion of the
Netherlands Government, to consider works for the improvement of the
navigation of the Meuse. At the time when the Netherlands Government
suggested the appointment of this Commission, it would appear that they had
in view works which could not be carried out without the concurrence of both
 When the report of this Commission had been received in 1912, the
Netherlands Government proposed that the two Governments should together
undertake the canalization of the joint section of the Meuse. Negotiations
on this subject had not been completed at the time when the war of 1914-1918
broke out, as Belgium would only agree to participate in this work if
satisfaction were given to her on certain other points.
 In 1921 a project for the construction of a lateral canal on the right
bank of the Meuse from Maestricht to Maasbracht was submitted to the
Chambers by the Netherlands Government. This was a work to be carried out
entirely on Netherlands territory and at the expense of the Netherlands. It
embodied what is now the Borgharen barrage and the Juliana Canal. It led to
diplomatic correspondence between the Netherlands and Belgium, in which
Belgium maintained that such works would prejudice the navigation on the
joint section of the Meuse and would interfere with the working of the 1863
Treaty. She therefore maintained that this scheme could not be carried out
without her consent.
 Though the Parties were not able, in the diplomatic discussions which
followed, to come to an agreement as to the points raised by the Belgian
Government, other negotiations which were already in progress led to the
signature in 1925 of a new and comprehensive treaty which would have enabled
the waterways [p15] desired on either side to be constructed. This treaty
however was rejected by the Netherlands First Chamber.
 After the rejection of the treaty of 1925, the Netherlands proceeded to
construct and complete the Juliana Canal, a waterway which would enable
barges of larger size to reach Maestricht and from there would make contact
with the Liege-Maestricht Canal. She also constructed a new lock, the
Bossche-veld Lock, situated just below the intake constructed at Maestricht
under the Treaty of 1863 and giving access to the Zuid-Willemsvaart from the
Meuse. This new lock was brought into use in September 1931. The Borgharen
barrage had been finished in 1929 and the Juliana Canal was opened to
navigation in 1934.
 Faced with the prospect of the completion of the Juliana Canal, the
Belgian Government decided that they must construct a canal from Liege to
Antwerp, and laid before the Belgian Parliament a scheme for the
construction of what is now known as the Albert Canal. The submission of
this scheme to the Belgian Parliament provoked an enquiry from the
Netherlands Government as to the feeding of this great new waterway.
Discussions followed through the diplomatic channel, but they led to no
result, as the Netherlands were unable to give satisfaction to Belgium as
regards the construction of a new waterway to improve the communications
between Antwerp and the Rhine.
 The construction of the Albert Canal was commenced in 1930 ; it is not
 The Albert Canal is intended to connect Liege with Antwerp. It will be
fed with water obtained from the Meuse immediately above a barrage
constructed at Monsin. For about sixteen kilometres it practically follows
the course of the old Liege-Maestricht Canal. It then turns north-westward
and is carried in a deep cutting through the hills till it reaches Briegden.
From Briegden a junction canal, which is already in use, runs to Neerhaeren
where connection is established with the Belgian section of the
Zuid-Willemsvaart through the Neerhaeren Lock.
 From Briegden the Albert Canal will be carried by a section which is
not yet completed to a spot near Hasselt. There, just north of the Curange
Lock, it will join the existing Hasselt branch of the Campine Canal, which
will be reconstructed and considerably [p16] widened and deepened, and will
follow the line of that branch as far as Quaedmechelen. From Quaed-mechelen
the Albert Canal will be carried on via Herenthals to Viersel, where it
takes the place of the existing Canal de la Campine which has been in the
same way reconstructed, widened and deepened. Through the new Wyneghem Lock
it will connect with the Antwerp waterways. A part of the western end of
this section is already in use.
 As no further progress could be made in the settlement of the points at
issue between the two States, the Netherlands initiated the present
proceedings against Belgium in the Court by an Application dated August 1st,
1936, based on the ground that some of the works already executed or to be
executed by Belgium in connection with the Albert Canal constituted an
infringement of the Treaty of 1863. Belgium in due course raised by her
counter-claim the question whether the Juliana Canal and the Borgharen
barrage were themselves compatible with the Treaty of 1863.
 From the history of the dispute given above, it will be seen that one
of the difficulties in achieving a settlement of the differences between the
two States has been the Belgian desire to obtain the Netherlands' consent to
the construction of a new canal connecting Antwerp and the Rhine, a point
upon which one may infer that the Netherlands Government have felt
themselves unable to accede to the wishes of the Belgian Government because
of the commercial rivalry between Antwerp and Rotterdam. With this aspect of
the question the Court is in no way concerned. Its task is limited to a
decision on the legal points submitted to it as to whether or not certain
works constructed by the Belgian Government do or do not infringe the Treaty
of 1863, and, as regards the Belgian counter-claim, as to whether or not
certain works constructed by the Netherlands Government do or do not
constitute an infringement of the Treaty of 1863.
 In the course of the proceedings, both written and oral, occasional
reference has been made to the application of the general rules of
international law as regards rivers. In the opinion of the Court, the points
submitted to it by the Parties in the present case do not entitle it to go
outside the field covered by the Treaty of 1863. The points at issue must
all be determined solely by the interpretation and application of that
 Before proceeding to consider in detail the dispute submitted to the
Court, it will be well to make a brief survey of the provisions of the
Treaty of 1863 which must be applied in the decision of the case. [p17]
 Article I provides for the construction below Maestricht at the foot of
the fortifications of a new intake which will constitute the feeding conduit
for all canals situated below that town and for irrigation in the Campine
and in the Netherlands. Article II provides that the lock at Hocht (No. 19)
is to be suppressed and replaced by a new lock in the Zuid-Willemsvaart
above the intake provided for in Article I. The part of the canal between
the site of the old lock at Hocht and the site of the new lock was to be
enlarged and deepened so as to be of the same dimensions and depth as the
reach from Hocht to Bocholt. Article III provides that the level of the
canal between Maestricht and Bocholt was to be raised so that the quantity
of water prescribed by the succeeding Articles IV and V could pass along the
canal without raising the average current to a speed exceeding 25 to 27
centimetres per second. Article IV fixed the quantity of water to be taken
from the Meuse at ten cubic metres per second when the level of the river
was above the normal low level; when at or below the normal low level it was
fixed at 7½ cubic metres from October to June and 6 cubic metres from June
to October. Normal low level was defined by reference to the gauge on the
bridge at Maestricht and corresponded to a minimum depth between Maestricht
and Venlo of 70 centimetres. A gauge was to be fixed at the mouth of the new
intake, and no further use was to be made of the intake at Hocht. Under
Article V the Netherlands was to have a fixed proportion (2 or 1½ cubic
metres) out of the total quantity of water fixed by Article IV as the amount
to be withdrawn from the Meuse by the new intake; the Netherlands share of
this water was to pass through lock 17 at Loozen. The second paragraph of
this Article gives the Netherlands a right to increase the water to be
withdrawn from the Meuse at Maestricht, provided the speed of the current in
the canal was not raised above that stipulated in Article III.
 Article IX provided for the preparation and execution of a programme of
works in the bed of the Meuse between Maestricht and Venlo over a series of
years, Belgium to pay two-thirds and the Netherlands one-third of the costs.
 The remaining articles are of less importance in connection with the
 In the first submission I a of the Netherlands' Memorial, the Agent of
the Netherlands Government asks the Court: [p18]
“To adjudge and declare that
(a) the construction by Belgium of works which render it possible for a
canal situated below Maestricht' to be supplied with water taken from the
Meuse elsewhere than at that town is contrary to the Treaty of 1863.”
 The intention of this submission is made clearer by the explanations
which are given in the Memorial :
"The infringements of the regime established by the Treaty in 1863 forming
the subject of the complaint of the Netherlands Government may be classified
under two heads :
(A) Infringements of the Netherlands' privilege of control over diversions
of water from the Meuse by means of the Maestricht intake resulting from the
construction of works making it possible to feed canals situated below
Maestricht with water taken from the Meuse elsewhere than at that town ; (B)
Infringements of the treaty regulations governing the allocation of Meuse
water resulting from the feeding of canals situated below Maestricht with
water taken from the Meuse in excess of the quantities fixed and allotted to
Belgium by the Treaty of 1863."
 Submission I a refers to infringements of this so-called privilege of
control claimed by the Netherlands Government.
 The nature of this Netherlands claim has not been set out with great
precision, either in the written proceedings or in the oral arguments. The
Court understands it as a claim to a special privilege going beyond the
power of supervision which the Netherlands necessarily derive from the fact
that the intake is situated in Netherlands territory. There can be no doubt
that, so far as the right of supervision is derived from the position of the
intake on Netherlands territory, the Netherlands, as territorial sovereign,
enjoys a right of supervision which Belgium cannot possess.
 What the Netherlands Agent has claimed on behalf of his Government is
not merely to be able to control what happens in their own territory, but to
control the supply of water drawn from the Meuse to feed the system of
canals referred to in the Treaty: the important thing for the Netherlands
being, not the ability to supervise the mere working of the Maestricht
feeder, but the power to make sure at any time that the quantities of water
drawn from the Meuse to supply the canals below Maestricht do not exceed the
total quantities fixed in the Treaty. To this end, and in order to effect
that full control of all supplies from the Meuse for the feeding of these
canals, the right of supervision arising from the position of the intake in
Netherlands territory had to be supplemented, and is supplemented, by an
obligation to refrain from certain action imposed upon Belgium, an
obligation not to construct [p19] works by means of which she could, apart
from the Maestricht feeder, supply one or more canals situated below that
town. The Netherlands Agent finds in Article I of the Treaty the
justification for that claim when it provides that the Maestricht feeder
should be "the", that is to say, the only, feeder for all canals situated
below Maestricht. It follows, according to his contention, that the mere
fact of constructing in Belgian territory a second feeder is, in itself, a
breach of the Article. It is of no importance whether actual use is made of
this feeder or whether it is left idle. Once a second feeder exists the
Maestricht feeder is no longer the only one and the Treaty of 1863 is
 It was in support of this view that the Netherlands Agent in his
argument laid such stress on the fact that the design of the Neerhaeren Lock
in the Briegden-Neerhaeren junction canal embodied side-channels for filling
and emptying the lock chamber which by the simple expedient of removing an
electric interlocking device could be converted into a lateral conduit,
enabling water to be conveyed in large quantities from the upper to the
lower reach, irrespective of any use of the lock for navigational purposes.
The Netherlands Agent did not suggest that the side-channels had been used
in the past for this purpose, or were being so used at present. It was in
the fact that by this simple method the side-channels could be converted
into a lateral conduit and thereby render possible without the knowledge of
the Netherlands Government the passage of water into the Zuid-Willemsvaart,
that the Netherlands Agent saw a violation of the right of control conferred
upon his Government.
 The Netherlands contention necessarily implies that the Treaty of 1863
intended to place the Parties in a situation of legal inequality by
conferring on the Netherlands a right of control to which Belgium could not
lay claim. The Netherlands Agent, with regard to the Belgian Government's
counter-claim, stated in his reply that Belgium was not entitled to dispute
the lawfulness of the works constructed by the Netherlands merely on the
ground that such works would make it possible to feed a canal situated below
Maestricht with water diverted' from the river elsewhere than at the treaty
feeder, because Belgium did not possess any right of control similar to that
conferred on the Netherlands by the Treaty. [p20]
 The Court is unable to accept as well-founded a contention which would
alter the character of the Treaty of 1863 and considerably enlarge the scope
of the actual terms used by its authors; for that Treaty is an agreement
freely concluded between two States seeking to reconcile their practical
interests with a view to improving an existing situation rather than to
settle a legal dispute concerning mutually contested rights.
 It would only be possible to agree with the contention of the
Netherlands Agent that the Treaty had created a position of inequality
between the contracting Parties if that were expressly indicated by the
terms of the Treaty ; but the text of Article I is not sufficient to justify
such an interpretation. The text of this Article is general; it furnishes no
evidence of any differentiation between the two Parties. Article I is a
provision equally binding on the Netherlands and on Belgium. If, therefore,
it is claimed on behalf of the Netherlands Government that, over and above
the rights which necessarily result from the fact that the new intake is
situated on Netherlands territory, the Netherlands possess certain
privileges in the sense that the Treaty imposes on Belgium, and not on them,
an obligation to abstain from certain acts connected with the supply to
canals below Maestricht of water taken from the Meuse elsewhere than at the
treaty feeder, the argument goes beyond what the text of the Treaty will
 The Court finds that none of the documents produced by the Netherlands
Government in support of their claim of control controverts the conclusion
reached by the Court and that, on the contrary, some of these documents
confirm that conclusion.
 For the above reasons, the submission I a of the Netherlands Memorial
must be rejected.
 The Netherlands Government in its submission formulated under I b in
the Netherlands Memorial prays the Court :
"To adjudge and declare
(b) that the feeding of the Belgian section of the Zuid-Willemsvaart, of the
Campine Canal, of the Hasselt branch of that canal and of the branch leading
to Beverloo Camp, as also of the Turnhout Canal, through the Neerhaeren Lock
with water taken from the Meuse elsewhere than at Maestricht, is contrary to
the said Treaty [Treaty of May I2th, 1863]."
 It will be observed that, in this submission, the Netherlands
Government does not specify the particular provision of the [p21] Treaty
alleged to be infringed by the feeding of the Zuid-Willemsvaart, the Campine
Canal, its Hasselt branch, its branch leading towards Beverloo Camp and the
Turnhout Canal, through the Neerhaeren Lock, with water taken from the Meuse
elsewhere than at Maestricht.
 The Treaty brought into existence a certain regime which results from
all of its provisions in conjunction. It forms a complete whole, the
different provisions of which cannot be dissociated from the others and
considered apart by themselves.
 When the Treaty of 1863 is examined in this way it is seen that, more
particularly in Articles I, III, IV and V, it established a treaty regime
governing, to quote the words of the Preamble, "diversions of water from the
Meuse for the feeding of navigation canals and irrigation channels" ; this
regime was instituted both by the construction at Maestricht in Netherlands
territory of the new intake on the Meuse, which was to constitute the feeder
for all the canals situated below that town, and by the fixing of the volume
of water to be discharged into the Zuid-Willemsvaart at a quantity which
would maintain a minimum depth in that canal and would ensure that the
velocity of its current did not exceed a maximum of 0.25 metre to 0.27 metre
per second. The canals which the Treaty thus had in view when it referred to
"all canals situated below Maestricht", are the Zuid-Willemsvaart and the
canals which branch off from it and are fed by it.
 Any work which disturbs the situation as established by the Treaty
constitutes an infraction of the latter, and this holds good for works above
Maestricht just as much as for works situated below Maestricht.
 It is evident that neither the functioning of the former intake at
Hocht, in Belgian territory, nor of any intake other than the treaty feeder
would have been compatible with the regime thus established. Accordingly, it
was laid down (Art. I) that the intake at Maestricht would constitute "the"
feeder–that is to say, the only feeder–and that no further use would be made
of the intake at Hocht (Art. IV, last para.).
 In this connection, it is necessary to consider whether the passage of
water through a lock, instead of through the new intake, constitutes an
infraction of Article I.
 A lock is not, in itself, a feeder. A lock is a construction designed
to retain the water in an upper reach and to enable barges to pass from this
upper reach to a lower reach, and vice versa. It functions intermittently,
with more or less frequency, according as the traffic is more or less
intense. If the waterway is a canal, it is manifest that if the canal is not
to run dry, more or less rapidly according to its length, the lock cannot
function unless the summit-level reach of the [p22] canal is itself fed by
an intake providing a sufficient supply of water.
 It can scarcely be contested that water discharged by a lock–or
lock-water–which passes in this way from reach to reach, constitutes a
means, and no doubt the normal means, of feeding the successive reaches of a
 It has been argued on behalf of the Belgian Government that it cannot
have been the intention of the Treaty that the existence and functioning of
a lock should be considered as an infraction of the Treaty, for the
following reason. The Treaty itself lays down in Article II that lock No. 19
at Hocht is to be reconstructed at a different site. This lock 19 is the one
which establishes communication between the Zuid-Willemsvaart and the Liege-Maestricht
Canal. Every time that the lock is operated–and it is clear that the Treaty
intended that shipping should continue to use this route–a certain quantity
of lock-water, originally derived from the Meuse, though not through the
treaty feeder, is necessarily discharged into the Zuid-Willemsvaart ;
consequently, lock-water–i.e., water passing through a lock in the course of
its normal functioning–cannot be equivalent to the "feeding" of the canal
which is forbidden by Article I.
 On the other hand, it has been contended, on behalf of the Netherlands
Government, that the foregoing argument does not take sufficiently into
account the small dimensions of lock 19, nor the fact that the average total
volume of lock-water discharged by the daily normal functioning of the lock,
is less than the margin of error allowed in measuring the ten cubic metres
per second fixed in Article IV. It is for this reason–it is contended–that
no account was taken in the Treaty of the water passing through lock No. 19
into the Zuid-Willemsvaart ; to allow the same rule however to operate in
connection with the Neerhaeren Lock would upset the equilibrium established
by the Treaty. The dimensions of the Neerhaeren Lock are so much greater
than those of lock 19 that 3,900 m3 of water are discharged into the
Zuid-Willemsvaart every time that the lock is operated, and the average
quantity of water passing through in the course of a day amounts to 1 m3 per
second, which represents a very substantial addition to the ten m3 per
second fixed by Article IV as the maximum quantity to be passed through the
new intake. It is therefore argued on behalf of the Netherlands Government
that, in interpreting the Treaty, no account should be taken of lock 19 ;
but that in the case of the Neerhaeren Lock the discharge of lock-water
should be regarded as an infraction of Article I. [p23]
 The Court considers that neither the Belgian nor the Netherlands
contention can be accepted in its entirety. When it is remembered that the
provisions of the Treaty of 1863 were adopted in order to overcome certain
actual difficulties connected with the feeding of the canals below
Maestricht, it is seen to be impossible to isolate Article I, and to
interpret it without reference to those difficulties. That Article has
indeed to be interpreted in conjunction with the other articles, with which
it forms a complete whole. To adopt the Belgian contention, according to
which no lock, when used for navigation, and no volume of water discharged
through a lock when being utilized for that purpose, could constitute an
infraction of Article I, would open the door to the construction of works
and the discharge of water in such quantities that the intentions of the
Treaty would be entirely frustrated. On the other hand, to adopt the
Netherlands contention and to hold that any discharge of water into the
Zuid-Willemsvaart through the Neerhaeren Lock, instead of through the treaty
feeder, must result in an infraction of Article I–irrespective of the
consequences which such discharge of water might produce on the velocity of
the current in the Zuid-Willemsvaart, or on the navigability of the joint
section of the Meuse–would be to ignore the objects with which the Treaty
 If any distinction can be drawn between a lock of small dimensions,
such as lock 19, and a large lock, that distinction must be based not simply
on the difference between the respective dimensions of the two locks, but on
the difference between the effects which they respectively produce. The
Court would be prepared to consider that the use of the Neerhaeren Lock is
contrary to the Treaty, notwithstanding the existence and functioning of
lock 19, if it were shown that the use of the Neerhaeren Lock contravened
the object of the Treaty, that is to say if it were shown that the use of
the Neerhaeren Lock produced an excessive current in the Zuid-Willemsvaart
or a deficiency of water in the Meuse.
 The Court has not found any reason in the documents submitted to it
which would lead it to conclude that the water discharged through the
Neerhaeren Lock has set up an excessive current in the Zuid-Willemsvaart, or
has depleted the Meuse to such an extent as to prejudice navigation on that
 In the foregoing remarks, the question of the utilization of the
side-channels of the Neerhaeren Lock for feeding the reach below the lock is
not taken into consideration. The Court is only considering the normal use
of this lock for purposes of navigation. There is no doubt that the use of
these side-channels for feeding the lower reach would transform them into a
feeder and would thus be contrary to the Treaty. [p24]
 Another circumstance which must be borne in mind in connection with
this submission I b is the construction of the Bosscheveld Lock by the
Netherlands Government. That lock was completed and brought into use prior
to the construction of the Neerhaeren Lock. Its dimensions are even greater
than those of the Neerhaeren Lock. It is situated a short distance below the
treaty intake of 1863, and it leads directly from the Meuse into the
 As regards the Bosscheveld Lock, as in the case of the Neerhaeren Lock,
no evidence has been produced, and the Court finds no reason in the
documents that have been produced, which would lead it to suppose that the
use of the Bosscheveld Lock has caused effects, either in the
Zuid-Willemsvaart or in the Meuse, which are inconsistent with the object of
the Treaty of 1863.
 During the oral proceedings before the Court, the construction of this
lock was defended by the Netherlands Agent on the ground that the Treaty
(Art. V, para. 2) entitles the Netherlands to increase the volume of water
"taken from the Meuse at Maestricht". The Netherlands consider that, in
virtue of these words, they are entitled to take water from the Meuse
elsewhere than at the treaty feeder, and that in consequence the discharge
of water into the Zuid-Willemsvaart through the Bosscheveld Lock is not
contrary to the Treaty. This view cannot be accepted, for these same words
"taken from the Meuse" are also used in the first paragraph of this same
Article V, and also in Article IV, and they cannot be understood in any
other sense than: the taking of water through the feeder referred to in
Article I, to the exclusion of its withdrawal elsewhere.
 Another reason against the acceptance of the Netherlands argument that
Article V, paragraph 2, justifies the diversion from the Meuse of water
discharged into the Zuid-Willemsvaart through the Bosscheveld Lock is that
the right thus conferred on the Netherlands was that of taking supplementary
water for their own use; this supplementary water has to be discharged
through the lock at Loozen. The Netherlands Government has never contended
that water flowing through the Bosscheveld Lock simply in connection with
the passage of boats was to constitute this additional water intended to
increase the share allotted to it by Article V of the Treaty, and that this
water should consequently be restored to the Netherlands at Loozen. In
reality this water is merged in the whole body of water in the
Zuid-Willemsvaart system ; it is of common benefit to the navigation of both
countries, and it increases the Belgian quota for irrigation and for the
feeding of the Belgian canals. [p25]
 The Court cannot refrain from comparing the case of the Belgian lock
with that of the Netherlands lock at Bosscheveld. Neither of these locks
constitutes a feeder, yet both of them discharge their lock-water into the
canal, and thus take part in feeding it with water otherwise than through
the treaty feeder, though without producing an excessive current in the
Zuid-Willemsvaart. In these circumstances, the Court finds it difficult to
admit that the Netherlands are now warranted in complaining of the
construction and operation of a lock of which they themselves set an example
in the past.
 Accordingly, as has been explained above, in the absence of evidence as
to the effects which the use of the Neerhaeren Lock produces on the current
in the Zuid-Willemsvaart, or on the Meuse itself, the Court does not
consider that the normal use of this lock is inconsistent with the Treaty.
The Court is also of opinion that there is no ground for treating this lock
less favourably than the Netherlands lock at Bosscheveld. It is thus unable
to accord to the Netherlands Government the benefit of its submission.
 Submission I b must, therefore, be rejected.
 The third claim of the Netherlands Government which is formulated in
submission I c of the Netherlands Memorial prays the Court
"To adjudge and declare that:
(c) Belgium's project of feeding a section of the Hasselt Canal with water
taken from the Meuse elsewhere than at Maestricht is contrary to the said
 This claim of the Netherlands Government is fundamentally concerned
with the construction and putting into operation of the Albert Canal from
Liege to Antwerp, though that canal is not mentioned by name. For the line
of the Albert Canal, a broad and deep canal of a total length of 125
kilometres, makes use for a certain distance in its course towards Antwerp,
between the so-called Curange Lock and the so-called Quaed-mechelen Lock, of
the bed of the old Hasselt Canal which branches off the Canal de la Campine.
 The Netherlands do not contend that the intake at Liege-Monsin which
feeds the Albert Canal, is in itself contrary to the said Treaty, or that
the Treaty applies to the whole of the Albert Canal. [p26]
 The line of argument of the Netherlands Government is that when the
Albert Canal is brought into operation, the old Hasselt Canal, i.e. that
part of it henceforward comprised in the Albert Canal, will be fed, like the
latter, with water taken from the Meuse at Liege-Monsin, that is to say
elsewhere than at the treaty feeder. The situation resulting from the
bringing into use of this section of the Albert Canal would be contrary to
 The Court finds nothing either in the arguments of the Netherlands or
in the text of the Treaty of 1863 which would prevent either the Netherlands
or Belgium from making such use as they may see fit of the canals covered by
the Treaty in so far as concerns canals which are situated in Netherlands or
Belgian territory, as the case may be, and do not leave that territory. As
regards such canals, each of the two States is at liberty, in its own
territory, to modify them, to enlarge them, to transform them, to fill them
in and even to increase the volume of water in them from new sources,
provided that the diversion of water at the treaty feeder and the volume of
water to be discharged therefrom to maintain the normal level and flow in
the Zuid-Willemsvaart is not affected.
 The question whether in fact it is true that, between Hasselt and
Quaedmechelen, the old canal is only fed with water from the River Demer, as
maintained by Belgium, or also with water coming from the Canal de la
Campine which comes in turn from the Zuid-Willemsvaart, as maintained by the
Netherlands, is in reality irrelevant.
 No matter whence the water supplying the old Hasselt Canal is obtained,
Belgium is not prohibited from using that canal as she may see fit, from
transforming it or from in effect abolishing a portion of it by more or less
merging it in the new Albert Canal which has its own water supply.
 The contention of the Netherlands Government is invalidated by the
singular result to which it would lead in practice. For it would amount to
criticizing Belgium for having made the new canal follow the line of the old
canal. She need only have sited the new canal a few yards to one side and
have abandoned this section of the old canal and then, according to the
contention of the Netherlands, she would not have contravened the Treaty. No
such effect can have been intended by the contracting Parties, nor can it
result from a proper interpretation of the terms of the Treaty.
 Submission I c must therefore be rejected. [p27]
 The fourth claim of the Netherlands Government which is formulated in
submission I d of the Netherlands Memorial prays the Court:
"To adjudge and declare that:
(d) Belgium's project of feeding the section of the canal joining the
Zuid-Willemsvaart to the Scheldt between Heren-thals (Viersel) and Antwerp
with water taken from the Meuse elsewhere than at Maestricht, is contrary to
the said Treaty."
 This claim is similar to the preceding one in regard to the Hasselt
 From Viersel to Antwerp, the course of the Albert Canal coincides with
the latter part of the old Canal de la Campine which branches off the
Zuid-Willemsvaart and is therefore comprised in the system of canals
situated below Maestricht and fed from the treaty feeder.
 The grounds on which the Belgian Government is criticized in the
Netherlands Memorial in this connection are the same as in the case of the
Hasselt-Quaedmechelen section of the Albert Canal which coincides with a
portion of the old Hasselt Canal.
 The reasons which have led the Court to reject the contention of the
Netherlands Government in the latter case also apply in this case.
 It is true that it is not denied that this section of the old Canal de
la Campine which is joined at Wyneghem near Antwerp by the Turnhout Canal,
is fed with water originally coming from the Zuid-Willemsvaart. But, as has
been stated, the origin of the water feeding the canals comprised in the
system contemplated by the Treaty has no bearing on the right of Belgium, or
of the Netherlands, to make such use as they may see fit of these canals
when situated exclusively in their own territory, provided that the regime
governing the diversion of water at the treaty feeder and the volume of
water to be discharged by that feeder to secure at all times the normal
level and flow of water in the Zuid-Willemsvaart is not thereby affected.
 The Court accordingly considers that the criticism made in the
Netherlands Memorial is no more justified in the case of the Herenthals (Viersel)
Canal than in the case of the Hasselt Canal. The submission made in the
Netherlands Memorial must therefore be rejected. [p28]
 In a second series of submissions at the end of" their Memorial, the
Netherlands Government pray the Court :
"To order Belgium
(a) to discontinue all the works referred to under I (a) and to restore to a
condition consistent with the Treaty of 1863 all works executed in breach of
(b) to discontinue any feeding held to be contrary to the said Treaty and to
refrain from any further such feeding."
 Since the Court has arrived at the conclusion that there is no
justification for the various complaints made by the Netherlands Government
against the Belgian Government in the submissions of the former Government
which have been examined above, it can only reject the claim presented by
the Netherlands Government in respect of penalties to be imposed upon the
Belgian Government and is not called upon to examine this claim.
 Having rejected the four submissions made by the Netherlands as
Applicant in the principal suit, the Court considers that there is no
occasion for it to pass upon the four alternative submissions presented by
the Belgian Government in its Rejoinder. These submissions were only
presented "in case the Court should be unable to find in accordance with the
submissions of the Respondent". The submissions of the Netherlands having
been rejected, the Court considers that these alternative submissions have
ceased to have any object, and this view is confirmed by what was said by
the Belgian Agent at the hearing on May I2th, 1937.
 The Belgian Government, for its part, formulates in its
Counter-Memorial a counter-claim alleging : (i) that the Netherlands
Government has committed a breach of the Treaty of 1863 by constructing the
Borgharen barrage on the Meuse below Maestricht ; (2) that the Juliana Canal
constructed by the Netherlands alongside to the Meuse below Maestricht from
Limmel to Maasbracht, is subject, as regards its water supply, to the same
 As this claim is directly connected with the principal claim, it was
permissible to present it in the Counter-Memorial. [p29]
 In its first submission, regarding the Borgharen barrage, the Belgian
Government prays the Court,
"To adjudge and declare that:
I° The Borgharen barrage has been constructed in breach of the stipulations
of this same Treaty which is alleged by the Netherlands Government to have
been disregarded by the Belgian Government as regards certain stipulations ;
that is to say, that the local situation at Maestricht provided for by the
Treaty of 1863 has been altered by the unilateral decision of the
Netherlands Government; that this alteration has rendered the proper
application of the Treaty impossible, because the level of the Meuse has
been raised by the Borgharen barrage and the water-gauge which had been
placed there in accordance with the Treaty to enable the diversion of water
to be regulated in accordance with the level of the water has been
 This submission formulated by the Belgian Government contains both the
claim itself and the grounds adduced in support of it.
 In the first place, according to the Belgian Government, the local
situation at Maestricht has, contrary to the Treaty, been altered by the
Netherlands Government without previous agreement with the Belgian
 Article IV, paragraph 2, of the Treaty runs as follows :
"The normal low level, which at present varies between the 30 and 40
centimetre marks above zero on the gauge at the Maestricht bridge,
corresponds to a minimum depth of water of seventy (70) centimetres between
Maestricht and Venlo."
 It is clear that the construction of the Borgharen barrage had the
effect–it could scarcely have been otherwise–of raising the level of the
Meuse above the barrage, with the result that no matter what may have been
the low level of the river, as actually determined in 1863, the volume of
water discharged by the feeder, according to the height of the Meuse, is
always the maximum volume.
 The Belgian Government does not contend that, by the raising of the
level of the Meuse resulting from the construction of the Borgharen barrage,
a volume of water greater than the maximum fixed is discharged from the
feeder. What it does contend is that the situation has been altered without
 Nowhere in the Treaty, however, is to be found a provision forbidding
the Netherlands from changing the depth of water in the Meuse at Maestricht
without the consent of Belgium, provided that neither the discharge of water
through the feeder nor the volume which it must or can supply, nor again the
[p30] current in the Zuid-Willemsvaart are thereby affected. It is subject
to this condition, and not at their arbitrary discretion, that the
Netherlands are entitled, under the Treaty of 1863, to dispose of the waters
of the Meuse at Maestricht.
 The Belgian Government alleges that the raising of the level of the
Meuse at Maestricht has submerged the gauge placed, in accordance with
Article IV, paragraph 3, at the entrance to the feeder in order to enable
the volume of water to be passed through the feeder to be checked, in
accordance with the height of the low water level. But the submerging of the
mark on this gauge would only be subject to criticism if, because it was no
longer possible to verify the volume of water discharged by the feeder, this
volume in fact exceeded the maximum fixed by the Treaty. This however does
not appear to be the case, nor does the Belgian Government contend that it
 Lastly, the Belgian Government, in the course of its argument, if not
in its submissions, has contended that the Netherlands Government, by means
of the Borgharen barrage, has interfered with the navigability of the Meuse
below Maestricht, that is to say, that part of the river common to both
 The Netherlands allege in reply on this contention that it followed
from Article V, paragraph 2, and Article XI of the Treaty of 1863, that
Belgium had relinquished her interest in the navigation of the common
section of the Meuse and that the interests of navigation in that section
were left to the discretion of the Netherlands. On the contrary, Article IX
of the Treaty affords proof that Belgium did not relinquish her interest in
the joint section of the Meuse. For that Article expressly provides for the
carrying out of works for the improvement of the navigability of the Meuse
between Maestricht and Venlo and for the financial participation of Belgium
in the carrying out of these works.
 On the other hand, in alleging that the navigability of the common
section of the Meuse had suffered, the Belgium Government should, in support
of its contention, have produced evidence regarding the intensity of the
traffic and of the injurious effect upon it of the barrage. Belgium has not
produced this evidence. It would probably have been somewhat difficult for
her to do so, because in actual fact, from the point of view of
navigability, the joint section of the Meuse is no longer of much importance
save for small local vessels and these only require a small depth of water.
Barge traffic, under whatever flag, now has at its disposal the waterway
provided by the Juliana Canal which is much better adapted to its needs.
 The submission of the Belgian Government in regard to this question
must therefore be rejected. [p31]
 The second submission in the counter-claim of the Belgian Government
relates to the Juliana Canal and asks the Court
"To adjudge and declare that:
2. The Juliana Canal, being a canal below Maestricht, within the meaning of
Article I of the Treaty, is subject, as regards its water supply, to the
same provisions as the canals on the left bank of the Meuse below Maestricht".
 The entrance of the Juliana Canal, a lateral canal of the Meuse, is on
the river, in Netherlands territory a little below Maestricht, and the canal
debouches at Maasbracht, also in Netherlands territory, a little below the
point at which the Belgian frontier leaves the Meuse and the river ceases to
be common to both countries. It is therefore beyond dispute, from a
geographical point of view, that the Juliana Canal is situated below
Maestricht. But it does not follow that it is, as the Belgian Government
contends, "a canal below Maestricht within the meaning of Article I of the
 The provision in Article I which stipulates that the new intake at
Maestricht shall be "the feeder" for all "canals situated below that town",
and the consequential provision in Article IV, last paragraph, to the effect
that "no further use shall be made of the intake at Hocht" imply by their
very terms, if any indication were needed, that the feeder is situated on
the left bank of the Meuse and that, in consequence, the canals which it has
to feed are also on the left bank of the river. Moreover, the canals the
feeding of which had occasioned difficulties, and which are referred to in
the Treaty, are the Zuid-Willemsvaart itself and the canals which branch off
from it and thus derive their supply of water from it. It is manifest that
an intake situated on the left bank of the river cannot be regarded as
intended to feed canals situated on the right bank. The latter cannot
therefore come under the regime of water supply instituted by the Treaty.
 The Juliana Canal, which is below Maestricht but is situated on the
right bank, cannot therefore be considered or treated as "a canal below
Maestricht within the meaning of Article I of the Treaty" according to the
terms of the Belgian submission.
 As the situation of the Treaty feeder on the left bank of the Meuse
makes it impossible in practice to regard the Juliana Canal, situated on the
right bank, as being subject to the same rules regarding its water supply as
the canals on the left bank, the submission in- the Belgian Counter-Memorial
must necessarily be rejected. [p32]
 As is stated in the Netherlands Government's submission, the Juliana
Canal is not therefore, as regards its water supply, subject to the same
provisions as the Zuid-Willemsvaart and the other canals on the left bank of
the Meuse below Maestricht. But it in no way follows from this that the
Treaty authorizes the Netherlands Government to use the water of the Meuse
at Maestricht as it pleases for feeding the Juliana Canal. This argument,
based on the theory that Belgium had relinquished interest in the navigation
of the joint section of the Meuse, is, as has already been explained,
inconsistent with the general plan of the Treaty.
 The question of how the Juliana Canal is, in fact, at present supplied
with water would only require to be considered if it were alleged that the
method by which it is fed was detrimental to the regime instituted by the
Treaty for the canals situated on the left bank. Belgium does not however
allege that this is the case, and, moreover, the navigability of the joint
section of the Meuse cannot be considered in this connection otherwise "than
it was regarded above, in connection with the Borgharen barrage.
 The Belgian Government has added to its two submissions, referred to
above, a third submission praying the Court :
"3. To reserve the rights accruing to Belgium from the breaches so
 As no violation of the Treaty of 1863 has been found by the Court to
have been committed by the Netherlands Government, the reservation of rights
requested by Belgium cannot be accorded.
 FOR THESE REASONS,
In regard to the principal claim:
The Court, by ten votes to three,
Rejects the various submissions of the Memorial presented by the Netherlands
Government in pursuance of its Application dated August 1st, 1936.
As regards the counter-claim presented in the Belgian Counter-Memorial,
dated January 28th, 1937 :
The Court, by ten votes to three,
Rejects the submissions of the aforesaid counter-claim. [p33]
The present Judgment has been drawn up in French in accordance with the
provisions of Article 39, paragraph i, of the Court's Statute, the Parties
having declared themselves agreed that the whole case should be conducted in
 Done at the Peace Palace, The Hague, this twenty-eighth day of June,
one thousand nine hundred and thirty-seven, in three copies, one of which
will be deposited in the archives of the Court while the others will be
transmitted to the Government of the Netherlands and to the Government of
(Signed) J. G. Guerrero,
(Signed) J. Lopez On van,
 M. Anzilotti declares that he is unable to concur in the judgment
given by the Court and, availing himself of the right conferred upon him by
Article 57 of the Statute, has appended to the judgment the separate opinion
 M. Altamira and Jonkheer van Eysinga declare that they are unable to
concur in all the findings of the Court's judgment and have appended to the
judgment the separate opinions which follow.
 Sir Cecil Hurst, Vice-President of the Court, declares that he is
unable to concur in the findings of the Court's judgment in regard to the
counter-claim of the Belgian Government and has appended to the judgment the
separate opinion which follows.
 Mr. Hudson, whilst concurring in the judgment, has appended certain
 M. de Visscher declares that he is unable to concur in the findings of
the Court's judgment in regard to the counter-claim of the Belgian
(Initialled) J. G. G.
(Initialled) J. L. O. [p34]
Dissenting Opinion of Sir Cecil Hurst.
 I am unable to agree with the decision of the Court on the Belgian
 The first submission of that counter-claim relates to the Borgharen
barrage. I am not able to regard the construction of this barrage by the
Netherlands Government otherwise than as a violation of the Treaty of 1863.
 Article IV of the Treaty provided that a certain quantity of water was
to be withdrawn by the new intake constructed under the provisions of
Article I. The quantity varied according to the level of the river. When the
level of the water in the river stood at or below a certain point on the
gauge at the bridge at Maestricht, the ten cubic metres per second was to be
reduced to 7 ½ cubic metres, or to 6 cubic metres, according to the season
of the year.
 The level of the Meuse so fixed as the determining factor in deciding
whether the larger or the smaller quantity of water was to be withdrawn from
the Meuse is stated in the Treaty itself (Art. IV, para. 2) to correspond to
a minimum depth of water between Maestricht and Venlo. This shows that the
purpose which the Treaty had in view was that the quantity of water to be
withdrawn from the Meuse should depend on the depth of water in the sections
of the river below Maestricht. It is therefore permissible to draw the
deduction that the intention of the framers of the Treaty was that the
maximum of ten cubic metres per second should only be withdrawn from the
river when there was a certain depth of water in the river below Maestricht
and down to Venlo.
 The effect of the construction of the Borgharen barrage is twofold
:–firstly, the level of the water at the mouth of the intake and at the
bridge at Maestricht stands permanently so high that the ten cubic metres
per second is at all times being withdrawn by the new intake; secondly, the
level of the water at the gauge at the bridge at Maestricht has ceased to
correspond with a particular depth of water in the Meuse between Maestricht
and Venlo. The depth of water in the river between Maestricht and Venlo has
in fact ceased to be the factor upon which depended ultimately the amount of
water to be withdrawn from the Meuse under the Treaty of 1863.
 The Treaty does not make express mention of the fact, but it seems
clear that this provision as to the depth of water in [p35] the river
between Maestricht and Venlo had reference to the interests of navigation.
It was only in connection with navigation that the depth of water in the
river between Maestricht and Venlo was of importance.
 The action of the Netherlands Government in constructing the Borgharen
barrage has had the effect of excluding altogether the application of a
provision in the Treaty which must be regarded as having been intended to
safeguard the interests of navigation on the Meuse between Maestricht and
Venlo. Such action is incompatible with the Treaty, and for that reason the
first submission in the Belgian counter-claim should be admitted.
 The provision in the second paragraph of Article V enabling the
Netherlands Government to increase its share of the water withdrawn from the
Meuse at Maestricht affords no justification for the construction of the
Borgharen barrage. There is nothing to show that it was with a view to the
exercise of its rights under that Article that the barrage was constructed.
 The second submission in the Belgian counter-claim relates to the
 It is to the effect that the canal being a canal below Maestricht
within the meaning of Article I of the Treaty is subject as regards the
supply of water to it to the same provisions as the canals on the left bank.
 From the wording of the second and third submissions in the Reply of
the Netherlands Government, one may infer that it is not disputed by that
Government that the Juliana Canal is a canal below Maestricht within the
meaning of that Article. It is merely submitted that the canal is not as
regards its water supply subject to the same provisions as the canals on the
left bank, and that the feeding of the canal is not and has not been
inconsistent with the Treaty of 1863, as also that the mere fact that it
would be possible for the Netherlands to use certain locks on this canal in
a manner inconsistent with the Treaty does not in itself involve a breach of
 The questions how the Juliana Canal has been supplied with water in
the past and how it is being supplied at present are questions of fact. If
it is maintained on behalf of the Belgian Government that the Juliana Canal
has been and is being supplied with water from the Meuse in breach of the
Treaty of 1863, the burden of proof lies on that Government. No sufficient
evidence has been submitted on behalf of the Belgian Government that the
Juliana Canal is or has been fed with water from the Meuse. On the contrary
the evidence submitted by the Netherlands Government shows that it was not
with Meuse water that the Juliana Canal was gradually filled as soon as its
construction was completed, and that it is not fed with water [p36] from the
Meuse at present. A finding to that effect would in my opinion have been
sufficient to dispose of the case as regards the Juliana Canal, and to
justify the rejection of the Belgian submission. The question whether or not
the Juliana Canal is a canal below Maestricht within the meaning of Article
I need not in that case have been considered.
 The judgment of the Court proceeds upon the basis that, as the new
intake constructed in accordance with Article I of the Treaty was situated
on the left bank of the river, and therefore cannot have been intended to
feed canals on the right bank, canals on the right bank cannot come under
the regime of water supply instituted by the Treaty.
 There is no doubt that in 1863 the canals situated below Maestricht
were all situated on the left bank of the river, and there is nothing to
show that at that date any such canal as the Juliana Canal had been thought
of. It does not follow, however, that it was the intention of the Treaty
that the prohibition contained in Article I of the Treaty was not intended
to apply to a canal on the right bank.
 The Treaty was certainly intended to introduce a limitation on the
withdrawal of water from the Meuse for feeding canals. In 1863 navigation on
the river below Maestricht was of importance, and such navigation was bound
to suffer if the withdrawals of water were excessive. Despite the fact
therefore that the new intake was situated on the left bank, and that the
canals as to which difficulties had arisen before 1863 were also situated on
the left bank, there can be no sufficient reason for reading into the Treaty
of 1863 a supposed intention to restrict its operation to the left bank if
the plain language of the text is broad enough to cover canals on the right
 The phrase used in Article I "pour tous les canaux situes en aval de
cette ville" is quite general: it covers canals on the right bank as much as
canals on the left bank, and it is in that sense in my view that it must be
 It is unnecessary to attempt a precise definition of the term "en aval
de Maestricht". The Parties are in agreement that the prohibition in Article
I extended not only to canals which existed in 1863, but to canals which
might be constructed at a later date. Though they were not agreed as to the
exact meaning of the term, it is impossible to conceive any interpretation
of the term which would not cover a great waterway such as the Juliana
Canal, which is in direct connection with the Meuse and is situated only a
few kilometres below Maestricht. [p37]
 For these reasons, the Juliana Canal would in my opinion fall within
the prohibition prescribed by Article I of the Treaty if it was fed with
water from the Meuse. It is merely because of lack of proof as to this point
that the Belgian submission should be rejected.
(Signed) Cecil J. B. Hurst. [p38]
Separate Opinion by M. Altamira.
 My dissent from the foregoing judgment is mainly in respect of the two
following points: the interpretation of the Treaty of 1863 and the findings
upon the submissions of the Applicant.
 I will confine myself to indicating my interpretation of the Treaty in
so far as is necessary to explain why I cannot accept all the grounds on
which the judgment is based, though this does not prevent me from arriving
for different legal reasons at the same conclusions as the findings of the
judgment, with the sole exception of the finding in regard to the Neerhaeren
 The Treaty of May 12th, 1863, constitutes, in my view, a well
constructed and complete system in which the various articles are
interconnected, each serving to explain and complete the others, thus
achieving the objects which are fully and reasonably set out in the Preamble
 Regarding the Treaty as a whole, it is possible to discern three
groups of provisions : one comprising Articles I, II, III, IV, V, VI, VII,
VIII and XI, which deal with the feeding of and navigation upon certain
canals referred to in Article I ; another comprising Articles X and XIII
which relate to the carrying out of works made necessary by the provisions
of the first group, and a third comprising Articles IX and XII, which
concern navigation on the Meuse at different points. This structure of the
Treaty, which is due to the needs with which the Parties were concerned in
1863, serves to explain the import of the Preamble.
 Before analyzing the articles of the Treaty, I find it necessary to
make two general observations.
 First of all, I would say that, in my view, every one of the
obligations, whether common to the two contracting Parties or peculiar to
one of them, contained in the Treaty, is essential in respect of the type of
interests to which it relates ; but it follows that none of them takes
precedence over the others and still less can render them superfluous. On
the contrary, each article of the Treaty requires the precise fulfilment of
that part of the agreement between the contracting States which it
represents ; the interdependence which may exist between that part and the
provisions of other articles (e.g. Art. IV and Arts. Ill, V and XI) merely
places conditions or limits upon the exercise of each right or the
fulfilment of each obligation ; but, subject to these conditions or limits,
where they exist, the [p39] provisions of each article remain intact and
nothing should prevent their application. For otherwise the Treaty would
cease to be a harmonious whole and would fail to fulfil one or more of its
objects instead of serving them all in accordance with the plan jointly
adopted by the Parties.
 Besides this general consideration which, in my view, governs the
Treaty as a whole and each of its articles, there is the fact–entirely
natural since we are dealing with a treaty–that the Treaty of May 12th,
1863, involves obligations and that these obligations must be fulfilled. The
fact that the Treaty is chiefly concerned with the adjustment of the
Parties' interests and not with differences of a really legal nature does
not mean that no legal relationship is established as regards the fulfilment
of the agreement in regard to interests. These interests may have been the
reason for the conclusion of the Treaty, but once the Treaty has come into
existence, the rights and obligations which it expressly or implicitly
creates take precedence. The interests remain in the background and can only
be taken into account in so far as is permitted by the legal provisions
embodied in the agreement between the Parties. They can never take the place
of these provisions or impede their execution.
 Having made these general observations, I now come to the
interpretation of the articles of the Treaty.
 Article I is for many reasons of considerable importance for a proper
understanding of the Treaty. It has been very much discussed by the Parties
in this case. It is connected with all the other articles relating to the
diversion and allocation of water, and more especially with Article II and
 An analysis of its terms gives the following results: an obligation to
construct at Maestricht a work for the diversion of water from the Meuse ;
the definition of this work as "the feeder", i.e. the only feeding conduit
for certain canals and irrigation channels ; the qualification of these
canals by the words "situated below" Maestricht, and of the irrigation
channels as those "of Campine and of the Netherlands". The character of the
new feeding conduit as the only feeder which is expressed by the wording of
the Article, is confirmed by the terms of the last paragraph of Article IV,
which stipulates that the intake of Meuse water previously existing at Hocht
is not to be used, that is to say its abolition in practice, since no other
source for the feeding of the canals referred to in Article I may exist once
the feeding conduit through which is discharged the volume of water taken
from the Meuse at Maestricht has been constructed.
 Two obligations naturally ensue from this circumstance. One– common to
both Parties–is the obligation not to make–or [p40] not to retain–another
intake having the same purpose or the same result in practice as that which
the Maestricht feeder is henceforward alone to serve. To my mind, it is
obvious that the obligation covers the two following points : the intention
to supply water and the actual fact of the supply of water to canals "below
Maestricht", since though it is impossible to imagine that an intake would
be made with the express object of feeding these canals unless that object
were fulfilled–for otherwise the intention would not be carried out–there is
the possibility that though the object were lacking, the feeding might
nevertheless take place. It is clear that, in Article I, the actual feeding
of the canals and not the construction of the intake with its feeding
conduit is the essential point. Unless the feeding actually takes place, the
intake would be of no use for the fulfilment of the object of the agreement
between the Parties.
 The other obligation, likewise common to both Parties, is the
obligation to do nothing which–apart from a supplying of water from a source
forbidden by the first obligation–would make it impossible to execute
Article I completely and consequently also the other articles which
constitute its complement or corollary. This second obligation, so far as
Belgium is concerned, relates to the volume of water to be assigned to the
Maestricht intake which naturally depends on the total volume of water in
the Meuse above Maestricht in Belgium territory. Thus, if intakes intended
for the supply of water for some object other than canals referred to in
Article I, were made above Maestricht to carry off quantities of water which
would make it impossible for the Maestricht feeder to fulfil its function
under the conditions laid down by the Treaty, it is clear that this would be
contrary to Article I, as well as– as we shall see–to Articles IV and V. Of
course, though this obligation appears particularly to concern Belgium, it
also concerns the Netherlands in so far as it may be possible for action
taken in their territory to interfere with the fulfilment of the function of
the treaty feeder. In my opinion, this is all that is to be found or can be
deduced from the terms of Article I–which is very clear–without going beyond
its scope. Any further obligation or right on the part of the Netherlands
Government or the Belgian Government is only to be found in the following
articles of the Treaty.
 As regards what canals were referred to by the words in the Article
"below Maestricht", everyone knew quite well in 1863 which canals were
meant, and the Treaty did not need to enumerate them. It is fair to assume
that the authors of the Treaty thought it unnecessary to mention them by
name. Moreover, the judgment does so in more than one passage in its
grounds, and there is nothing further to add. [p41]
 The first paragraph of Article II simply draws a conclusion from
Article I. If the new intake was thenceforth to be the sole "feeder" for the
canals–a service hitherto performed by the intake at Hocht, about to be
abolished–the lock connected with the Hocht intake became useless where it
was. But since the function it performed was still required for purposes of
navigation, it had to be transferred to the place where the new intake was
to be built. We shall see later that this paragraph of Article II has also a
special significance in connection with the finding concerning Neerhaeren.
 The second paragraph of this Article II is only important in the
present case as emphasizing the importance of navigation on the canals. It
anticipates a consequence following from the execution of Article I, the
first paragraph of Article II and the last paragraph of Article IV and, to
remedy the resulting inconvenience, orders the execution of certain
hydraulic works. Article III pursues the same aim on another part of the
 Paragraphs 1 and 2 of Article IV fix the quantity of water which can
be taken from the Meuse by the Maestricht intake, varying with the level of
water in the river. Thus they determine the flow of the intake provided for
in Article I. The two paragraphs mark the limits of this flow and thereby
impose an obligation upon the Netherlands, in whose territory the new feeder
operates, not to exceed these limits, subject to a right in favour of the
Netherlands Government, which is not expressed in Article IV, but in
paragraph 2 of Article V.
 The third paragraph of Article IV prescribes the placing at the mouth
of the new intake of a gauge indicating the low water level fixed in the
Finally, the last paragraph of Article IV formulates expressly, as already
said in reference to Article I, one of the main consequences ensuing from
that Article: viz., the discontinuance of the Hocht intake, already
mentioned in Article II–an intake which was situated in Belgian territory
 Article V, paragraph 1, fixes, on the basis of the maximum volume
which can be taken from the Meuse by the Maestricht feeder, the distribution
of this water between the two interested countries. The allocation is not
made on terms of equality, Belgium being the more favoured Party, but the
reasons for this inequality of treatment are of no importance to the
questions now at issue. We need only note the obligation which this
paragraph imposes upon the Netherlands to discharge the [p42] two cubic
metres per second allotted them (ij when bound by the minimum as provided in
Art. IV) through lock 17 at Loozen in the direction of Netherlands
territory, these two metres being intended for "the canals and irrigation
channels of the Netherlands".
 On the other hand, paragraph 2 of Article V grants permission to the
Netherlands Government to "increase the volume of water taken at Maestricht"
(i.e. the total maximum volume fixed in Art. IV and requiring to be passed
through the new feeder). This increase will in practice affect the quantity
of water allowed to the Netherlands by paragraph i of Article V, as is
clearly shown by the words in this same paragraph 2 : "this surplus water
will also be discharged through lock 17 at Loozen" (as well as the two cubic
metres of para. 1).
 The right thus to increase the volume of water especially assigned to
the Netherlands is not restricted to a certain number of cubic metres, but
is limited in this same paragraph by the fact that the increase may not be
of such amount as to cause "the speed of the current in the canal .... to
exceed the limits fixed in Article III". This "average" speed shall not
exceed "a maximum of 25 to 27 centimetres per second".
 Within these limits therefore, the right granted to the Netherlands is
 Article VI deals particularly with irrigation, which, according to the
Preamble, is the second aim of the Treaty. I need not analyze this Article,
as it is of little importance to our case. The same applies to Article VII,
which imposes a further obligation upon Belgium, and to Article VIII.
 Article IX introduces the second group of treaty provisions to which I
referred at the beginning. It concerns the improvement of navigation, not on
the canals mentioned in Article I, .but on the Meuse in the part of the
river between Maestricht and Venlo, which in 1863 presented serious
obstacles to safe navigation. It has no connection with the Maestricht
feeder nor with the supply of the canals referred to in Article I.
 Article X is again concerned with the intake of Article I, but only
from the technical point of view of works to be constructed there and of the
works mentioned in Article II. It adds nothing essential in regard to the
questions now at issue. The same is true of Articles XII and XIII. Article
XIV deals only with ratification of the Treaty.
 Article XI, on the other hand, supplements paragraph 2 of Article V in
case the exercise of its right by the Netherlands [p43] Government should
require the execution by it of certain hydraulic works. In this event, but
only in this event, "the question of the co-operation of the Belgian
Government.... will be settled between the two Governments", in regard to
the "measures necessary to secure discharge of the water through the
Zuid-Willemsvaart". It appears to me clear that, as long as the increased
volume granted to the Netherlands Government is furnished by the Maestricht
feeder, the water is bound to be discharged into the Zuid-Willemsvaart,
since the feeder communicates only with that canal. Article XI seems to me
to provide for the possibility of new hydraulic works being constructed
between the feeder and the said canal or in some other way allowing the
surplus water permitted by Article V to be discharged in some other
direction. The possible effect of this surplus water on the current of the
canal is already provided for in Article V.
 In this interpretation of the 1863 Treaty, I have been at pains to
state by an analysis of its articles the express or implied obligations
contained in each of them. The Treaty does not seem to me to impose any
other obligation upon either Party. In my view, however, each of these
obligations must be observed irrespective of the others, and the fulfilment
of the others cannot excuse the non-fulfilment of one.
 Before concluding this part of the present opinion, I would point out,
among the practical consequences to be drawn from an interpretation of the
1863 Treaty–thus passing beyond the sphere of law–the fact that the
obligations under this Treaty are perhaps somewhat restrictive, having
regard to circumstances that have since developed. This is certainly not a
question for the Court or for a judge to examine, but it arises quite
naturally from a study of the legal elements contained in the Treaty and
from knowledge of present-day conditions. As long as the Treaty remains in
force, it must be observed as it stands. It is not for the Treaty to adapt
itself to conditions. But if the latter are of a compelling nature,
compliance with them would necessitate another legal instrument.
 To explain the grounds of my dissent from the finding concerning the
Neerhaeren Lock, as contained in the reasons for the present judgment, I
need only apply my interpretation [p44] of Article I of the Treaty of 1863
and my general remarks on the Treaty system.
 The canals referred to in Article I may not be fed otherwise than from
the Maestricht intake and its feeding conduit, firstly because that is the
only place where feeding is permitted and secondly because the quantity of
water to be diverted for this purpose may not exceed the maximum volume
fixed by Article IV, and, as regards the surplus allowed to the Netherlands
by Article IV, paragraph 2, only the Netherlands Government may supply it
within the limits fixed in that paragraph.
 The case of lock 19 cannot, in my view, be invoked to refute the
foregoing argument. This lock was created by the Treaty, and this fact
confers upon it a legal status which renders it consistent with the rest of
the convention, a status which no other lock not recognized by the Treaty
and discharging water into the canals by conduits other than the Maestricht
feeder, would possess. Nor is there anything in Article II which, in my
view, would justify the deduction that the Treaty recognizes the general
principle that water discharged by locks, of which water the principal and
normal purpose is not that of feeding the canals referred to in Article I
but which in fact does constitute a feeding of such canals with water not
taken from Maestricht, may be assimilated to water from the new lock 19, and
still less to water passing into the Zuid-Willemsvaart by the Maestricht
conduit. The fact that the water hitherto discharged by the Neerhaeren Lock
has not increased the speed of the current does not seem to me to alter the
character of the supply of water discharged by that lock. The provisions of
Articles I, IV and V are in my view contrary to this conclusion.
(Signed) Rafael Altamira. [p45]
Dissenting Opinion of M. Anzilotti.
 I.–There are two points in the judgment in regard to which I am unable
to agree with the opinion of the Court: these are the rejection of
submission I b of the Application (the Neerhaeren Lock) and the rejection of
submission i° of the Counter-claim (the Borgharen barrage). In my opinion,
the Court should have accepted both these submissions.
 As my dissent is based on an interpretation of the Treaty of May I2th,
1863, differing from that adopted by the Court, it is fitting that I should
state the reasons for it in a few words.
 Before giving my individual opinion on the two points in question, I
must however make a general observation.
 The operative clause of the judgment merely rejects the submissions of
the principal claim and of the Counter-claim. In my opinion, in a suit the
main object of which was to obtain the interpretation of a treaty with
reference to certain concrete facts, and in which both the Applicant and the
Respondent presented submissions indicating, in regard to each point, the
interpretation which they respectively wished to see adopted by the Court,
the latter should not have confined itself to a mere rejection of the
submissions of the Applicant : it should also have expressed its opinion on
the submissions of the Respondent ; and, in any case, it should have
declared what it considered to be the correct interpretation of the Treaty.
 It is from the standpoint of this conception of the functions of the
Court in the present suit that the following observations have been drawn
 2. – The question whether the functioning of the Neerhaeren Lock, the
effect of which is to discharge into the Zuid-Willemsvaart water diverted
from the Meuse elsewhere than at the feeder prescribed, by Article I, is or
is not contrary to the Treaty, depends, mainly, on the scope of the
obligation which the two Parties contracted when they laid down in this
Article that the new intake on the Meuse "shall constitute the feeder for
all canals situated below that town", etc. Is this an obligation merely to
refrain from constructing other intakes on the Meuse constituting feeders
for the aforesaid canals ? or is it an obligation to refrain from feeding
these canals with water diverted from the Meuse elsewhere than at the treaty
feeder, no matter by what method such feeding may be effected (by a conduit,
by lockage, by pumping, etc.) ? [p46]
 If the text is taken literally, it seems only to refer to "feeders" of
the same sort as the one which the Treaty ordered to be constructed.
 But it is always dangerous to be guided by the literal sense of the
words before one is clear as to the object and intent of the Treaty ; for it
is only in this Treaty, and with reference to this Treaty, that these
words–which have no value except in so far as they express the intention of
the Parties–assume their true significance.
 The Treaty of May I2th, 1863, is based, in my opinion, on the
fundamental principle that a certain quantity of water, and no more, will be
taken from the Meuse to supply the needs of the canals situated below
Maestricht and for the irrigation works in the Campine and the Netherlands.
The quantity of water to be withdrawn from the Meuse is fixed with reference
to the level of the river (Art. IV) ; and this provision is closely
connected with the other object of the Treaty, which is to institute a
regime on the Meuse, by means of a programme of works that would maintain
and improve the navigability of that river in spite of the relatively large
quantity of water which it was proposed to withdraw from it (Art. IX).
 If that is really the system of the Treaty–and I do not see how it can
be questioned–it follows that the essential purpose of Article I is not to
exclude other feeders. Its object is rather to exclude any feeding of the
canals in question with water withdrawn from the Meuse elsewhere than at the
treaty feeder; for it is only at that feeder that the water can be measured,
and it is only if its volume remains within the limits laid down, that the
Treaty is being regularly executed. That is the reason, and that is the
significance, of the single feeder which is sanctioned by Article
 It follows that the obligation which the Parties assumed when they
laid down that the new intake would "constitute the feeder for all
canals...." is not merely an obligation to refrain from constructing other
feeders, but is an obligation to refrain from supplying these canals with
water taken from the Meuse elsewhere than at the treaty feeder, no matter by
what method it is taken or by what method it is discharged into the canals
in question. Moreover, it cannot be disputed that engineers regard lockwater
as an important, in some cases the most important, factor in the feeding of
 Founding myself on this interpretation of the Treaty, I am led to the
conclusion that the functioning of the Neerhaeren Lock, the effect of which
is to discharge into the Zuid-Willemsvaart a certain quantity of Meuse water
diverted at Monsin in excess of the quantity laid down in Article IV, is
contrary to this Treaty. [p47]
 It matters little that this surplus water discharged into the
Zuid-Willemsvaart has not increased the velocity of the current in this
canal beyond the maximum limit laid down in Article III. That maximum
constitutes a limit for the volume of water which may lawfully be withdrawn
at the treaty feeder, in virtue of Article V, paragraph 2 ; the fact that it
is not exceeded could not have the effect of legalizing a withdrawal of
water from the Meuse which is, in itself, contrary to the Treaty.
 It is true that this Treaty provides (Art. II) for the construction of
a lock, the result of which would be to discharge into the Zuid-Willemsvaart
Meuse water conveyed from Liege by the Liege-Maestricht Canal. It must
however be pointed out that the construction of that lock was a necessary
consequence of the works prescribed by the Treaty (Arts. II and III) in
order to enable the Zuid-Willemsvaart to discharge the water received
through the new intake. The only argument which can be drawn from it, in
support of the opposite view, is, therefore, that the water discharged
through this lock is not included in the quantity laid down in Article IV.
But it is admitted–and both Parties are agreed on this point–that the total
average quantity of lock-water discharged by this lock is very small, and is
less than the margin of error allowed in measuring the volume of water
prescribed in Article IV. It was therefore quite natural that the authors of
the Treaty should not have taken this water into account.
 But it would be going beyond the reasonable intentions of the Parties
to seek to infer from this fact that, because lock 19, in affording passage
to barges, discharges into the Zuid-Willemsvaart a volume of water which
supplements that taken from the Meuse by the treaty feeder, it is lawful to
construct other locks, performing the same function and producing the same
effects. This would subvert the whole system of the Treaty.
 3.–Submission I & of the Application must however be considered also
from another point of view.
 Before Belgium had constructed the Neerhaeren Lock, the Netherlands
had constructed and brought into use the Bosscheveld Lock, which also had
the effect of conveying into the Zuid-Willemsvaart a certain quantity of
water drawn from the Meuse elsewhere than at the treaty feeder, and,
consequently, in excess of the volume laid down in Article IV of the Treaty.
The Netherlands allege that they were entitled to construct the Bosscheveld
Lock because in virtue of Article V, paragraph 2, they were authorized to
withdraw water from the Meuse elsewhere than at the treaty feeder, and to
discharge it into the Zuid-Willemsvaart, subject only to the condition [p48]
that the speed of the current of that canal was not caused to exceed the
maximum limit laid down in Article III. Belgium disputes that
interpretation, and maintains that, subject to the possibility of increasing
the volume of water that may be diverted through the treaty feeder, the
rights and obligations of the two States were identical.
 Having regard to the foregoing, it is clear that the first thing to.
do is to ascertain what is the attitude of the respondent Party in regard to
the claim concerning the Neerhaeren Lock.
 The Belgian Government, in opposing submission I b of the
Application–in addition to its general request that the submission of the
applicant Party shall be declared to be ill-founded –asks the Court to
adjudge and declare that "the feeding of the Zuid-Willemsvaart and the canal
joining the Meuse and the Scheldt and its branches is not rendered
incompatible with the Treaty mentioned above by the fact that lockage water
arising from the working of the Neerhaeren Lock–operated bona fide for the
passing of boats–is added to the water from the Meuse coming from the intake
at Maestricht, as the Neerhaeren Lock cannot be treated less favourably than
the Bos-scheveld Lock" (submission 2° of the Counter-Memorial).
 Disregarding for the moment the last phrase "which cannot be treated
less favourably", etc., it is clear that what Belgium is asking the Court to
do is to give an interpretation of the Treaty on the point of law raised by
submission I & of the Application. It is therefore evident that both Parties
were agreed in asking the Court for this interpretation.
 Is this view controverted by the last sentence of the submission in
which the Belgian Government brings the Bossche-veld Lock into consideration
? My answer is definitely in the negative ; I see nothing more in these
words than an allusion to the Belgian contention of the equality of the two
States in regard to the Treaty of 1863, and consequently an argument in
support of the interpretation which the Court is asked to give. For it is
manifest that the Belgian Government could scarcely suppose that the Court,
having reached the conclusion that the Treaty prohibits the feeding of
canals situated below Maestricht by lock-water taken from the Meuse
elsewhere than at the treaty feeder, would subsequently change its opinion
and alter its interpretation in consequence of the existence of the
Bosscheveld Lock. For either the Court would consider that this lock is
justified by Article V, paragraph 2, as the Netherlands contend, so that its
existence could in no way affect the Neerhaeren Lock ; or the Court would
consider that Article V, paragraph 2, does not possess the meaning
attributed to it by the Netherlands, and then it could only conclude that
the Bosscheveld Lock is also contrary to the Treaty. [p49]
 No doubt the Belgian Government might have asked the Court, in case
the latter should not accept its interpretation of the Treaty, to declare
that the Bosscheveld Lock is itself contrary to the said Treaty; it would
only have needed to present an alternative submission to submission 2° of
the Counter-Memorial. But the Belgian Government did not present any such
submission ; that is its own affair and the Court did not need to concern
itself with the matter. It is none the less true that the Belgian Government
asked for the interpretation of the Treaty with reference to the Neerhaeren
Lock just in the same way as this had been requested by the Netherlands
Government : this circumstance suffices in my opinion to oblige the Court to
give a decision on submission I b of the Application and on submission 2° of
the Counter-Memorial, without concerning itself in any way with the
existence of the Bosscheveld Lock; I have already mentioned the grounds on
which the Court should have admitted submission I b of the Application and
rejected submission 2° of the Counter-Memorial.
 But there is another aspect of the question. Submission I b of the
Application is not the only one which relates to the Neerhaeren Lock. In
submission II b, the Netherlands asked the Court to condemn (condamner)
Belgium "to discontinue any feeding held to be contrary to the said Treaty
and to refrain from any further such feeding" ; there can be no doubt that
this submission has primarily in view the functioning of the Neerhaeren
 In my opinion the word condemn ("condamner") is not entirely
appropriate in international proceedings; in any case, it is employed in a
sense which is only remotely connected with that of condemnation in national
law. What the Netherlands ask in submission II b is, in fact, that the Court
should declare that Belgium is bound to carry out the Treaty and to
discontinue effecting certain supplies of water. While submission I b seeks
for an interpretation of the Treaty, submission II b seeks for its
 In its Rejoinder, the Belgian Government presented certain alternative
submissions, the second of which is worded as follows : "To find that, by
constructing certain works contrary to the terms of the Treaty, the
Applicant has forfeited the right to invoke the Treaty against the
 This was an alternative submission "in case the Court should be unable
on certain points to find in accordance with the submissions of the
Respondent" ; in fact, it is a submission which only arises, so far as
concerns the Neerhaeren Lock, in case the Court, in deciding on submission I
b of the Application and on submission 2° of the Counter-Memorial, should
[p50] reject the interpretation maintained by the Belgian Government. In my
view, the Court should therefore have given a decision on the alternative
 The admissibility of this submission depends on two conditions,
namely, whether the legal rule on which it founds itself is applicable in
relations between States, and whether the Netherlands, by constructing the
Bosscheveld Lock, were failing to execute the obligation imposed on them by
 As regards the first point, I am convinced that the principle
underlying this submission (inadimplenti non est adimplendum) is so just, so
equitable, so universally recognized, that it must be applied in
international relations also. In any case, it is one of these "general
principles of law recognized by civilized nations" which the Court applies
in virtue of Article 38 of its Statute.
 As regards the second point, I am also of opinion that the Belgian
Government's objection is well founded. If it is true that the Netherlands,
in virtue of Article V, paragraph 2, have the right, which Belgium does not
possess, to "increase the volume of water taken from the Meuse", it is none
the less true that this water has to be withdrawn through the treaty feeder
: the text of this paragraph is perfectly clear and allows of no doubt on
that point. It follows that the obligation imposed by Article I, the scope
of which has been explained above, applies to the Netherlands as well as to
Belgium: the feeding of the Zuid-Willemsvaart by the Bosscheveld Lock with
water diverted from the Meuse elsewhere than at the treaty feeder is
therefore contrary to the Treaty.
 To sum up my point of view, I consider that the Court should have
proceeded as follows :
in passing upon submissions I & of the Application and 2° of the
Counter-Memorial, the Court should have allowed the former and rejected the
latter, and it should have adjudged and declared that the feeding of the
canals referred to in Article I of the Treaty, through the Neerhaeren Lock,
with water taken from the Meuse elsewhere than at the treaty feeder, is
contrary to the Treaty;
in passing upon submission II b of the Application and on the alternative
submission of the Rejoinder, the Court should have allowed the latter and
rejected the former, in so far as either of the said submissions relates to
the lock at Neerhaeren ; it should have adjudged and declared that, as a
result of the construction of the Bosscheveld Lock, the Netherlands have
placed themselves in a position which precludes them from invoking the
Treaty to obtain a cessation of the feeding of the aforesaid canals through
the Neerhaeren Lock. [p51]
 4. – The interpretation of the Treaty of 1863 which leads me to
conclude that the Neerhaeren and Bosscheveld Locks are contrary to the
Treaty has led me to a like conclusion in regard to the Borgharen barrage.
 I have already said that the fundamental idea of the Treaty was to
reconcile the satisfying of certain interests relating to the canals and
irrigation works referred to in Article I with the interests of navigation
on the Meuse ; I have also said that this reconciliation was effected, on
the one hand, by fixing the quantity of water which might be taken from the
Meuse, and, on the other hand, by laying down a programme of works
calculated to conserve the navigability of the river, in spite of the
reduction in its volume of water.
 It was precisely with this object that the quantity of water which
might lawfully be taken from the Meuse was fixed in Article IV in relation
to the depth of water in the river. The variations prescribed in that
Article, according as the surface of the Meuse is above the low level of
that river, or at the low level, or below it, and also according to the
different months of the year, are consequently an essential part of the
settlement agreed upon between the two States. A structure which abolishes
these variations as is done by the barrage at Borgharen is consequently, by
reason of that very fact, contrary to the Treaty.
 Though it is true that the Netherlands are entitled to increase the
quantity of water to be withdrawn by the treaty feeder in virtue of Article
V, paragraph 2, and Article XI, it is equally true that this right is itself
conditioned by the natural flow of the river: there is nothing in the Treaty
which authorizes the Netherlands to modify that flow for their own benefit.
Article XI provides for works "necessitating an increase in the volume of
water to be withdrawn from the Meuse", not for works having as their purpose
and effect an increase in the volume of water discharged through the treaty
feeder. The works provided for in Article XI are, therefore, works relating
to navigation canals or to irrigation works beyond Loozen. It has not been
alleged, and it could not be contended, that the Netherlands made the
Borgharen barrage with the object of increasing the quantity of water to be
withdrawn through the treaty feeder ; the fact is that the volume of water
has been increased, so that it stands at the maximum limit throughout the
whole year, and the Meuse has been proportionately depleted, owing to the
construction of this barrage by the Netherlands with a totally different
 As, in my opinion, the Borgharen barrage constitutes an infraction, in
particular, of Article IV of the Treaty, the purpose of which was to
establish a certain proportion between the volume of water allotted to the
canals referred to in Article I [p52] and the volume of water which was to
be left in the Meuse, I am unable to attribute importance to the argument
that Belgium has suffered no injury by the construction of the barrage, but
that she has rather benefited by it. The existence of an injury would be
relevant if Belgium had made a claim for damages, but she has simply asked
for the interpretation of the Treaty. Moreover, it is quite possible that
the interests of navigation on the Meuse have altered considerably since
1863, and that the decrease in the quantity of water left in the river may
now be of far less importance than it would have been in the past ; but it
is none the less true that the Treaty says what it does say, and that one of
the Parties to it is not entitled, without the consent of the other Party,
to render certain of its provisions incapable of execution, in particular a
provision so fundamental as Article IV.
 For these reasons, I consider that the Court should have accepted
submission i° of the Counter-claim, should have rejected submission III (i)
of the Reply, and should have adjudged and declared that the fact of making
it impossible, by the construction of the Borgharen barrage, for the
quantity of Meuse water discharged through the treaty feeder to vary
according to the level of the Meuse, as provided in Article IV of the
Treaty, and of constantly maintaining that quantity at its maximum amount,
is an infraction of the Treaty.
(Signed) D. Anzilotti. [p53]
Separate Opinion by Jonkheer Van Eysinga.
 The Judgment does not entirely express my opinion; in these
circumstances, I would subjoin to it a statement of my separate opinion on
certain parts of the case.
 In each of the two actions which have been brought before the Court in
the present case–in the main Netherlands action and in the Belgian
counter-claim–the applicant Party alleges that certain hydraulic works are
inconsistent with the Treaty of May I2th, 1863, concerning the regime for
the diversion of water from the Meuse. Neither the Netherlands in the
principal action, nor Belgium in the counter-claim, alleges that the
hydraulic works in question are contrary to general international law. Such
an assertion had been made inter alia by Belgium in regard to the feeding of
the Juliana Canal with Meuse water, as appears from the Belgian note
transmitted to the Netherlands Government on April 28th, 1921 (Belgian
Counter-Memorial, p. 27). That note declared that this "regime would be in
conflict with the general principles of international law governing the
utilization of international rivers by the riparian States". But, in the
present case, general international law, to which Belgium has alluded on
several occasions, must be left on one side ; we are here only concerned
with the Treaty of 1863.
 What the two States are asking the Court to give them is an
interpretation of that Treaty with special reference to certain hydraulic
works, the compatibility of which with the Treaty is a subject of dispute.
It is therefore one of those cases which, according to Article 13 of the
Covenant of the League of Nations, is primarily suitable for judicial
settlement. Each of the Parties is entitled to ask the Court for an
interpretation of the Treaty, and the Court is not entitled to refuse to
give this interpretation.
 It will be seen from the foregoing observations that the first thing
to do is to ascertain the character, the scope and the interpretation of the
Treaty of 1863.
 The Treaty of 1863 put an end, by means of a compromise, to a dispute
which had existed between the two countries for several years. [p54]
 The Netherlands alleged that Belgium was wrongfully diverting (aftappen)
Meuse water in order to feed her new system of canals in the Campine and her
irrigation works in the Cam-pine ; this water, which was withdrawn from the
Meuse, was to a considerable extent conveyed to the Scheldt. Liege, an
ancient port on the Meuse, and the Belgian basin of the Meuse in general,
had used the Meuse from the earliest times as a natural navigable waterway,
terminating in Holland. However, after the dissolution of the Kingdom of
1815, which comprised Belgium, Luxemburg and the present territory of the
Netherlands, Belgium endeavoured to direct the traffic of her Meuse basin
towards Antwerp; she did this in particular with the help of her canals in
the Campine which were designed to link the Zuid-Willemsvaart, and thereby
the Meuse, to the great Belgian maritime port–as indeed is indicated by the
name : Meuse-Scheldt Junction Canal. My reason for mentioning this fact is
to show that the Netherlands Government did not, in the dispute which was
regulated by the Treaty of 1863, any more than in the suit now under
consideration, oppose the diversion of the traffic of the Belgian Meuse
basin towards Antwerp. Neither in the dispute in the XlXth century, nor in
that in the XXth century has there been any question of an objection to the
diversion of traffic ; in both cases the disputes were solely concerned with
objections to the withdrawal (aftapping) of Meuse water effected by Belgium.
 It is not superfluous to point out that when the Netherlands, in the
dispute in the middle of the XIXth century, alleged that Belgium was
arbitrarily withdrawing water from the Meuse, the objection in no way
concerned the quantity of water necessary for navigation in the
Zuid-Willemsvaart, or, later on, in the prolongation of that canal as far as
Liege. There may be different opinions as to whether the Zuid-Willemsvaart
is, or is not, a lateral canal of the Meuse–the Belgian Counsel, M. Delmer,
says that it is (Oral Pleadings, p. 86) ; the Belgian Counsel, Me. Marcq,
says that it is not (Oral Pleadings, p. 189) ; but one thing is certain,
namely that when King William I, as early as 1819, ordered an investigation
of the problem, the initial step which led to the construction of the
Zuid-Willemsvaart, the object in view was to provide the important
industrial and mining districts of the present Belgian Meuse basin with a
better navigable waterway. The results of the investigations carried out by
the Waterstaat showed that a canal could be made which would be much shorter
than the Meuse and would offer a navigable waterway, practically always
available, unlike the Meuse which suffered at times from an insufficiency
and at times from a superabundance of water, either of which conditions were
an obstacle to navigation during considerable parts of the year. The
Zuid-Willemsvaart was [p55] ready for use in 1826, and its prolongation as
far as Liege was ready in 1850, or at the beginning of 1851. It was known
beforehand that these canals would use a certain quantity of Meuse water,
but that inevitable consequence of an improvement in the communications by
water was all the more easy of acceptance because the quantity required was
inconsiderable. It should be noted, in this connection, that Article V,
paragraph i, of the Treaty of 1863 allots a volume of two cubic metres, or
even as little as 1.50 cubic metre, per second to the Zuid-Willemsvaart
below Loozen and to the canals branching off from this part of the
Zuid-Willemsvaart, and to the Netherlands irrigation channels. And, in the
case of the Liege-Maestricht Canal, neither the Convention of 1845, which
provided for its construction, nor the Treaty of 1863 said anything on the
subject of its lock-water, which was very natural because the volume of such
water is extremely small, viz., one-tenth of a cubic metre per second, a
quantity less than the margin of error which occurs in measuring the
discharge through the feeder at Maestricht, as is pointed out on page 15 of
the Belgian Rejoinder.
 In point of fact, the Netherlands never made any complaint in regard
to the small quantities of water requisite to enable the Zuid-Willemsvaart
and the canal prolonging it to Liege to be utilized as a waterway.
 But the situation was very different when Belgium began to use the two
navigable canals to convey the large quantities of water which she found
that she required for her system of canals in the Campine, then in course of
construction, and for her projected irrigation works in the Campine. Belgium
began to take the supplementary water required for her canals and irrigation
works in the Campine at three different intakes. All of them were situated
in Belgian territory.
 First, there was the intake at Hocht, quite close to the spot where
the Zuid-Willemsvaart leaves Netherlands territory. A feeder drawing its
water from the Meuse, which at that point runs close alongside the canal,
was constructed in 1837 on the right bank of the canal.
 Secondly, as soon as the Liege-Maestricht Canal was completed, Belgium
began to use it also as a feeder for the system of canals and irrigation
channels in the Campine. For this purpose, large quantities of Meuse water
were diverted at Liege into the lateral canal at Maestricht ; this process
was facilitated, subsequently, by the construction of a barrage which raised
the level of the Meuse at the place where the lateral canal branched off. In
order not to hamper navigation unduly in the lateral canal, the large
quantities of water were introduced into the canal during the night, with
the result that [p56] on the following day, at a particular time, the level
of the Meuse in Netherlands Limburg fell considerably, so that it was
described there as being subject to a flux and reflux, like that of the sea,
only more regular.
 In order that the Zuid-Willemsvaart should afford a rapid passage to
the large quantities of Meuse water diverted at Liege, it was necessary to
increase the velocity of its current. This was done at the very time when
the Liege-Maestricht Canal was taken into use, namely, about the beginning
of 1851. For this purpose, a third intake, or rather a cascade, was
constructed in Belgian territory to the left of the old lock 19, near Hocht,
where "the lateral derivation" was deepened and enlarged.
 The statement pf reasons which was drawn up by M. Rogier, the Belgian
Prime Minister, and is dated on the day after the signature of the Treaty
(Netherlands Memorial, p. 21), makes repeated mention of the intakes at
Liege and at Hocht ; and in his statement on May loth, the Belgian Counsel,
M. Delmer, clearly described the situation of which the Netherlands
Government had complained prior to 1863.
 In fact, Belgium, in order to feed her new system of Campine canals
and her Campine irrigation works, took water wherever she could find it, and
the three intakes on the Meuse were supplemented by water drawn off from
several of the streams and water-courses which flowed towards Netherlands
North Brabant ; at the same time, the water which had been used for
irrigation was discharged, in part, into Netherlands territory, where it
caused inundations, which were very mischievous, especially in the
 The withdrawal of water for the needs of the Campine caused the
Netherlands to make repeated representations to the Cabinet at Brussels. Two
international commissions studied the problem in 1856 and in 1858, but
without success. In 1860, the Second Chamber of the States-General appointed
a commission of enquiry, and in the following year a convention was signed
at Brussels which maintained the situation as it was in the neighbourhood of
Hocht ; this convention was rejected by the Second Chamber of the
States-General. Further negotiations followed, in conjunction with the
discussions concerning the redemption of the Scheldt tolls and commercial
arrangements; until finally the Treaty of May 12th, 1863, reconciled the
divergent standpoints and put an end to the dispute.
 What are the provisions of the Treaty of 1863?
 The essential feature of the Treaty was that a considerable portion of
the discharge of the international river was assigned [p57] to Belgium, even
at periods of the year when the Meuse is very low. The Treaty, therefore,
derogated from the normal state of affairs, according to which the discharge
of an international river belongs to that river. The quantity of water to be
withdrawn for Belgium, as laid down in Articles IV and V of the Treaty, is
fixed, and is therefore both a maximum and a minimum quantity. The
Netherlands have also to receive a certain quantity of water, which,
however, is far less than that allotted to Belgium; on the other hand, it is
liable to be increased, within certain limits and subject to certain
conditions (Art. V, para. 2, and Art. XI).
 The considerable withdrawals of Meuse water for the canals and
irrigation works of the Campine were rendered feasible by means of a variety
of measures designed to neutralize the undesirable consequences of these
diversions of water. The water was henceforward to be withdrawn solely at
Maestricht (Art. I) ; the Zuid-Willemsvaart was to undergo certain
alterations (Arts. II and III) ; measures were to be taken to prevent
inundations in the Netherlands as a result of irrigation in Belgium (Art.
VI) ; certain works were to be carried out on the Meuse between Maestricht
and Venlo (Art. IX). It should be 'added that Article VII prohibits the
withdrawal of water, in the future, from certain water-courses flowing
towards the Netherlands.
 It was the withdrawal of large quantities of water from the Meuse, on
the one hand, and the measures to offset the undesirable consequences of
that withdrawal, on the other hand, that constituted the compromise
established by the Treaty, which, as its Preamble states, regulated,
permanently and definitively, the regime of diversions of water from the
Meuse. The withdrawal of water from the Meuse comes first, and the other
provisions of the Treaty, though also important, are the effect of that
 For the supply of water to all the canals situated below Maestricht,
and to the irrigation channels in the Campine and the Netherlands, Article I
of the Treaty of 1863 substitutes a single .intake, which is to be
established in Netherlands territory in place of the existing intakes, which
were all in Belgian territory.
 Belgium has maintained that the monopoly accorded to the intake at
Maestricht only applied in the sector of that river below Maestricht, as far
down as Venlo. This contention, which implies that, above Maestricht, it
would be lawful to divert water from the Meuse in order to feed canals
situated below Maestricht, does not appear to me to be justified.
 It should be pointed out, in this connection, that Article I, which
speaks of the establishment of the feeder for all the canals situated below
Maestricht and for the irrigation works in the [p58] Campine and the
Netherlands, is drawn up in entirely general terms, so far as concerns the
places at which the obligation to refrain from installing a new intake on
the Meuse applies. This obligation applies at every place where it would be
possible to construct an intake for feeding any canal whatsoever situated
below Maestricht, or for feeding irrigation works in the Campine and the
Netherlands. As is known, the principal intake existing prior to 1863 was
situated above Maestricht. This was the important intake which Belgium
operated at Liege, and which is repeatedly mentioned in the statement of
reasons by the Prime Minister, M. Rogier.
 The Belgian argument endeavours to interpret Article I of the Treaty
by means of Article IX. In this way it brings the Maestricht-Venlo sector,
which is mentioned in the latter Article, within the compass of Article I.
But in so doing, it restricts, unjustifiably, the very general scope of
Article I, and it forgets that the only link between the two Articles is
that between cause (Art. I) and effect (Art. IX). I am well aware that the
Belgian argument avers that the principal aim of the Treaty was the
improvement of the Meuse, which would appear to justify the interpretation
of Article I from the standpoint of Article IX. But it is clear from the
Preamble of the Treaty, inter alia, that the aim of the Treaty is to
regulate "the system of diversions of water from the Meuse" ; and the
essential feature of the Treaty, as has already been pointed out, consists
of the ten cubic metres per second that are to be taken from the Meuse, out
of which amount eight cubic metres per second are assigned to Belgium [FN1].
The deterioration of the Meuse which results from this diversion of Meuse
water constitutes, as is said in M. Rogier's statement of reasons, a
disturbance of the equilibrium which must, in fairness, be re-established by
the carrying out of certain works on the Meuse. Article IX is indeed an
effect of Article I, and seeks to neutralize its consequences. Article IX
should properly be interpreted in the light of Article I, whereas an
interpretation in the inverse order runs directly counter to the very
general import of Article I.
[FN1] Except in regard to the barrage of Borgharen, the present Opinion
disregards, in general, the case in which the river is at or below the low
 To the foregoing I would add a practical observation.
 It has been suggested that Article I of the Treaty of 1863 only
prohibits the establishment of intakes on the Meuse below Maestricht, as far
down as Venlo. But is it realized that, if that were so, the practical men,
the engineers, who according to the Belgian statements were responsible for
framing the treaty, would have strayed very far from the sphere of realities
? I will explain. [p59]
 It has been pointed out that even the Hocht intake–which was however
situated very close to the spot where the Zuid-Willemsvaart leaves
Netherlands territory–did not always give satisfaction, for the reason that,
even at Hocht, the surface of the Meuse sometimes fell to the level of the
Zuid-Willemsvaart and even lower, so that the feeding of the
Zuid-Willemsvaart from the Meuse became impracticable. Now, if it is
realized, in the first place, that the level of the Zuid-Willemsvaart was
raised in pursuance of Article III of the Treaty, and that the reach thus
raised extends as far as lock 18–in other words, almost as far as the
frontier of Netherlands North .Brabant– and that, in the second place, the
Meuse between Hocht and Kessenich or Maasbracht–places which are almost in
line with lock 18–has a fall of more than twenty metres, whereas the
Zuid-Willemsvaart does not begin to fall rapidly before lock No. 12, which
is in line with Venlo, it is manifest that the Meuse below Maastricht is
descending a valley, whereas the Zuid-Willemsvaart, as far as lock 18,
continues its course entirely on the western plateau, and only falls
gradually till it reaches lock 12 in line with Venlo.
 That, it appears, suffices to show that the idea of supplying the
Zuid-Willemsvaart below Maestricht with Meuse water would not be very
practical, except in the immediate vicinity of the feeder.
 Belgium was henceforward to receive a very satisfactory allowance of
Meuse water for her requirements in the Campine, through the new and only
lawful intake at Maestricht–as was pointed out by M. Rogier in his statement
of reasons. It has already been mentioned that the volume of water which the
new feeder at Maestricht was to supply was normally ten cubic metres per
second, of which eight cubic metres were the fixed quantity guaranteed to
Belgium (Art. V).
 The specification of the precise amount of water to be taken from the
Meuse–a provision which was in itself unusual–points to the conclusion that,
when it was laid down that the intake at Maestricht was to be henceforward
the only feeder for the supply of Meuse water to canals situated below that
town, the granting of this monopoly to the new intake carried with it a
prohibition of all feeding at other places, whether by conduits, by
discharging culverts, by lock-water or by any other means by which Meuse
water might be introduced into canals situated below Maestricht.
 This conclusion has been disputed in regard to a single method of
introducing Meuse water into canals situated below Maestricht, namely the
discharge of water by lockage. I consider that this exception should not be
 A justification of the exception has been sought in the fact, already
mentioned, that the Treaty of 1863 makes no mention of the quantities of
water entering the Zuid-Willemsvaart by the functioning of lock 19, which
discharges into the Zuid-Willemsvaart a certain quantity of Meuse water that
has been conveyed from Liege by the Liege-Maestricht Canal; it has been
inferred from this fact that any quantity of water supplied to canals
situated below Maestricht by lockage, for instance by the functioning of the
Neerhaeren or Bosscheveld Locks, would consequently be consistent with the
Treaty of 1863.
 I do not believe that this interpretation of the Treaty is correct.
For the silence of the Treaty concerning the introduction of the very small
quantity of Meuse water which finds its way into the canals below [p61]
Maestricht by the functioning of lock 19 can be easily explained. As has
been pointed out, the feeding of the Zuid-Willemsvaart itself with Meuse
water had not occasioned any difficulty. Why should it have been otherwise
when the canal was prolonged to Liege ? The silence of the texts concerning
the small quantities of Meuse water required for navigation in the canal
which linked Liege to the Meuse below Bois-le-Duc is therefore quite
comprehensible, both in the case of the Treaty of 1845, concerning the
prolongation of the Zuid-Willemsvaart to Liege, and in the case of the
Treaty of 1863, which has restored the Liege-Maestricht Canal to its
exclusive role as a navigable waterway.
 On the other hand, the immense quantities of Meuse water which now
enter the canals below Maestricht through the modern locks at Neerhaeren and
Bosscheveld, though the discharge of the river has not altered, disturb the
system of the Treaty of 1863. That Treaty aimed at providing Belgium with
eight cubic metres of Meuse water per second, neither more nor less. But by
the functioning of the locks at Neerhaeren and Bosscheveld, Belgium receives
a far larger quantity. Moreover, every cubic metre per second passing
through the lock at Neerhaeren diminishes the quantity of supplementary
water which the Netherlands have a right to introduce through the feeder at
Maestricht, in virtue of Article V, paragraph 2, of the Treaty; that right
is limited by the maximum velocity of the current specified in that Article,
a velocity which is enhanced by the lock-water discharged at Neerhaeren.
Nay, more : the Treaty of 1863 seeks to ensure that the Meuse water used for
supplying canals situated below Maestricht shall be taken solely through the
feeder at Maestricht, which is operated by the Netherlands Waterstaat. It is
easy to verify the quantities of water diverted at a single intake, whereas
it is difficult to make such measurements when the water is drawn off at
different places, as used to happen before 1863. The introduction of great
quantities of water into the canals below Maestricht by the functioning of
large modern locks consequently destroys the system of the Treaty of 1863 in
another sense also, for it puts an end to the monopoly of the intake at
Maestricht, and makes it very difficult to check the amount of water
diverted from the river by the Neerhaeren Lock, which is not under the same
administration as the intake at Maestricht. It should be added that
engineers agree in recognizing that the principal method of supplying water
to canals is, precisely, by the functioning of the locks.
 The expression "canals situated below Maestricht" is clear. It refers,
in addition to the Zuid-Willemsvaart and its branch canals in Netherlands
territory, to the Meuse-Scheldt Junction Canal, which branches off at
Bocholt on the Zuid-Willemsvaart and terminates at Antwerp, and to its
branches, and also to the Turnhout Canal which runs via Saint Job to
Antwerp. The statement of reasons submitted by the Prime Minister, M. Rogier,
clearly alludes to this Campine system of canals when he says that "the
[Belgian] State obtains, for its part, the possibility of feeding, not only
the existing canals in the Campine, but also the canal, the construction of
which has been decreed, from Turnhout via Saint Job to Antwerp".
 It does not follow from the monopoly accorded to the intake at
Maestricht that the canals situated below that town and the irrigation works
in the Campine and the Netherlands may not be fed from water-courses other
than the Meuse. Such a means of supply–as, for instance, by the river Demer–is
perfectly compatible with the Treaty, and the only exception, in this
respect, is constituted by Article VII of the Treaty, which lays down that
the Belgian Government will leave undisturbed, or will restore to their
natural courses, the streams and water-courses which rise in Belgium and
flow towards the Netherlands territory. The fact that these canals or
sectors of canals are fed by other water-courses does not deprive them of
their character as canals situated below Maestricht, within the meaning of
 The intakes on the Meuse which are to be replaced, in pursuance of
Article I, by the feeder at Maestricht (statement of reasons by M. Rogier),
are the three intakes which I have referred to above. The intake, or rather
the cascade, to the left of lock 19 was, of course, to disappear with the
disappearance of that lock, which was abolished by Article II of the Treaty.
As regards the important intake at Liege, the Belgian Government made no
difficulty on that point (Netherlands Reply, pp. 42 and 43), and once the
new system had been instituted, only the quantities of water necessary to
offset lockage, leakage and evaporation were diverted at Liege. The
dismantling of the intake at Hocht, to the right of lock 19, was not
accepted so easily by Belgium. On the contrary, the [p62] Belgian Government
made a strong stand for the maintenance of this intake in Belgian territory
below Maestricht, and it is quite comprehensible that, when it at last
consented to its being put out of operation, this point should have been
recorded in the Treaty. But the words "in consequence of the foregoing", at
the beginning of the last paragraph of Article IV, show clearly that the
elimination of the Hocht intake was also the logical consequence of the fact
that, under Article I, the feeder at Maestricht was henceforward to be the
only installation for supplying Meuse water to all the canals situated below
Maestricht and to the irrigation works in the Campine and in the
 The new regime for the diversion of water from the Meuse necessitated
certain changes in the Zuid-Willemsvaart, among others the transfer, as
already mentioned, of lock 19 to a situation above the new feeder. These
changes are set out in Articles II and III. Moreover, the maintenance of a
constant depth in the Meuse, which had been disturbed by the considerable
diversions of water at the Liege and Hocht intakes (see .statement of
reasons by M. Rogier)–which intakes were now to be replaced by the feeder at
Maestricht–made it necessary to undertake certain works in the Meuse; these
works are indicated in Article IX and its Annexes.
The replacement of the different intakes which Belgium had operated on the
Meuse, by a single intake, namely, that of Maestricht, which was
henceforward to be the only "tap", would have the great technical advantage,
among others, of making it possible to measure, at a single place, the
volume of Meuse water laid down in Article IV of the Treaty. That was an
advantage to which the attention of Belgium had been drawn, inter alia, by
the Minister of the Netherlands at Brussels in 1862 (Netherlands Memorial,
 It is clear that the substitution of a single intake, in Netherlands
territory, for the different intakes on the Meuse which were in Belgian
territory constitutes a very real "de facto advantage" (see the oral
statement of M. de Ruelle, the Belgian Agent, p. 134) for the Netherlands.
For "the country in which the intake is situated enjoys, in practice, better
opportunities of supervision than the other country" (Belgian Rejoinder, p.
6). That advantage is illustrated by the very strong resistance offered by
Belgium to the dismantling of the intake–that of Hocht to the right of the
old lock 19. This opposition is constantly referred to in the despatches
addressed to The Hague in October 1862 by the Netherlands Minister at
Brussels (see Netherlands Memorial, pp. 43-48) ; and it is also apparent in
the Belgian proposals of February 19th, 1863 (Netherlands Reply, pp. 42-43).
 The very tangible de facto advantage which the Netherlands gained by
the substitution of a single intake in Netherlands territory for the
different intakes on the Meuse in Belgian territory–a substitution which was
effected in virtue of Article I of the Treaty of 1863–has been described by
the Netherlands as a right of "ascertaining (controler) at any moment that
the quantities of water taken from the Meuse do not exceed the quantities
specified in the Treaty, so that the complaints and discussions of the past
might be avoided" (Netherlands Memorial, p. 8).
 The question of control calls for the following observations.
 Every international convention, unless it expressly excludes it,
implies a control by the contracting parties to see whether the convention
is being strictly applied. This control may lead among other things to
diplomatic representations and, if necessary, to legal proceedings.
 Thus, Belgium, when she thought that the Netherlands draft law
submitted to the States-General on February 7th, 1921, and providing inter
alia for the Borgharen barrage, involved consequences at variance with the
Treaties of May I2th, 1863, and January nth, 1873, addressed a note on the
matter to the Netherlands Government dated April 28th, 1921 (Belgian
Counter-Memorial, p. 27). Belgium was by this means exercising her right of
control over the Netherlands in regard to a projected hydraulic installation
on Netherlands territory, a right of control which in the present case found
concrete expression in proceedings instituted against the Netherlands before
the Permanent Court of International Justice.
 The right of control is in principle mutual or, more strictly
speaking, it is mutual wherever the convention is mutual. Thus Belgium may
and, as explained to the Court, does effectively control the discharge by
the Netherlands through the Maestricht feeder of the quantities of water
prescribed by the 1863 Treaty. But the Netherlands cannot exercise the same
control over Belgium, because the Treaty provides for no intake in Belgium.
 On the other hand, each country may control the other when it finds
that the latter has constructed in its territory hydraulic works whereby the
canals situated below Maestricht will receive more water than the Treaty
prescribed. In this way, Belgium exercised control over the Borgharen
barrage and the Netherlands over the lock at Neerhaeren.
 The Netherlands undoubtedly have the right of control regarding the
culverts at the Neerhaeren Lock. The question whether such culverts are in
accordance with a treaty which abolished [p64] all the intakes in Belgian
territory existing in 1863 and replaced them by a single intake on
Netherlands territory, is certainly worth the attention of the Netherlands
Government, especially as hydraulic works of this kind are not built unless
it is intended that they should be used.
 I consider, however, that the Netherlands argument goes too far when
it claims that, while the construction by Belgium of works making it
possible to feed a canal below Maestricht with water taken from the Meuse
elsewhere than at that town is contrary to the 1863 Treaty, Belgium has no
right to complain of the construction of such works by the Netherlands. I do
not consider that the Netherlands Agent succeeded in proving that the
Netherlands here possess a right not possessed by Belgium. I would add that
this is the only point respecting which the Netherlands have claimed a
unilateral right of control.
 The fact that the Netherlands Agent stressed at length this special
right of control by the Netherlands has not helped to clarify matters.
 Nor did it help towards a better understanding of the case when the
Belgian defence ascribed to this Netherlands right of control an extent
which the Netherlands did not claim for it.
 I notice in this connection that the Netherlands Government stated
that, by the transfer of the intake to Netherlands territory, it was
thenceforth in a position to satisfy itself (controler) at any moment that
the volume of water diverted from the Meuse did not exceed the amounts
prescribed in the Treaty, so that the complaints and discussions which took
place in the past could be avoided (see above). It is therefore a question
of check on the quantities of water, and nothing more. But the Belgian
Government thinks that it involves a great deal more than that.
 Thus Belgium deduces from the indisputable fact that the negotiations
concerning the diversion of water from the Meuse had been combined with
those concerning the redemption of the Scheldt tolls, the following
argument, which appears on page 6 of the Belgian Counter-Memorial: "The
Netherlands possessed, in virtue of the Scheldt tolls, control of navigation
on the maritime part of the Scheldt. It was an important prerogative; they
were only willing to relinquish it– such is the argument–in return for the
control of navigation on the canals which are now under discussion." That is
not the correct way of stating the question. The Netherlands certainly do
not claim that Article I of the Treaty of 1863 invested them with the
control of navigation on the canals situated below Maestricht. What the
Netherlands say that [p65] they acquired in virtue of Article I is simply
the control over the volume of water. Furthermore, if the Scheldt tolls
really conferred a right of control over navigation in the maritime part of
the Scheldt, as the Belgian Government seems to believe, the navigation dues
levied by Belgium on the Meuse (in the case of the Netherlands these dues
were abolished in 1851) would constitute a Belgian right of control over
navigation on the Meuse. Would that really be in line with the Belgian
Government's ideas ?
 The Netherlands Government stated in its Application (p. 8) that "The
equilibrium established by the Treaty of 1863 between the interests affected
has been disturbed by the undertaking of these works, by the uses to which
they are being put and by the uses for which they are intended." It is clear
from the manner in which this statement is developed under (a), (b) and (c),
that what was complained of was a disturbance of the equilibrium in regard
to the distribution of the Meuse water as regulated once and for all in
1863. But the Belgian Government interprets this statement in the
Netherlands Application, although it is quite clear, as if it referred to
the economic equilibrium between Antwerp and Rotterdam (see Belgian
Counter-Memorial, p. 7).
 I might quote other extracts from the Belgian documents and oral
statements, but these two passages are sufficient to show that Belgium
regarded the control over the volume of water as a control over navigation
and traffic such as the Netherlands have not claimed.
 Before dealing with the Netherlands submission I a, I would repeat
that this is the only submission which the Netherlands base upon this right
of control and that, in particular, the Netherlands defence against the
Belgian counter-claim is not founded upon this special right of control.
 In this submission I a the Netherlands ask the Court to declare that
the construction by Belgium of works enabling a canal situated below
Maestricht to be supplied with water taken from the Meuse elsewhere than at
that town is contrary to the Treaty of May 12th, 1863.
 What is envisaged in this submission are works which, though they do
not at present feed a canal situated below Maestricht, nevertheless enable
this supply to be effected. In order to confine our consideration to the
kind of hydraulic works which come into question in the present case, we
should note that what is envisaged is not longitudinal culverts in locks
which it is admitted will be utilized in addition to locking operations
[p66] (as is the case with the five locks of the Albert Canal between the
first lock near Herstal (Liege) and the last lock at Wyneghem). Nor are we
here envisaging locks which, as the Parties are also agreed, will be
utilized and consequently will discharge lock-water.
 We are solely concerned with works which might supply feed water if
they were utilized, as, for example, the longitudinal culverts in the lock
 What attitude did Belgium adopt towards the Netherlands submission I a
 I should have understood it if Belgium, on the basis of her
interpretation of the 1863 Treaty, had said that, since the Treaty does not
apply above Maestricht, she was entitled to discharge Meuse water through
the Neerhaeren culverts into the canals situated below Maestricht, and that
she would make such use of that right as she thought necessary.
 That however was not her attitude. The culverts having been
constructed, the Counter-Memorial on pages 10 and n denies their existence,
and when the Netherlands had demonstrated that the Neerhaeren Lock was
indeed provided with culverts, Belgium fell back on the assertion that the
electric installations of the lock would only allow these culverts to be
used for filling the lock chamber (Oral Pleadings, p. in). However, when the
Netherlands Agent stated that this electrical installation could be altered
in five minutes (Oral Pleadings, p. 171), that statement was not
 The question arises whether such an attitude stops short of the line
dividing what States may do from what they may not do if they wish to remain
within the law. I cannot answer this question in the affirmative, and the
submission under I a appears therefore to be justified.
 I would add that the Belgian Counsels ended by admitting that in
certain eventualities the culverts at the Neerhaeren Lock would be used for
some other purpose than lockage, which indeed is not surprising, since
culverts are not built except to be used. It was rather a question of
economic or military necessity which would compel Belgium to keep intact the
water supply of the Zuid-Willemsvaart and of the inundation zones which
might be created north of Neerhaeren (Oral Pleadings, pp. 91 and 210-211).
 In its submission under I b, the Netherlands Government asks the Court
to declare that the feeding of the Belgian section of the Zuid-Willemsvaart,
of the Campine Canal, of the Hasselt branch of that canal, and of the branch
leading to Beverloo Camp, as also of the Turnhout Canal, through the [p67]
Neerhaeren Lock, with water taken from the Meuse elsewhere than at
Maestricht, is contrary to the 1863 Treaty.
 After what has already been said in the present note, not much need be
 It is common ground that the Treaty of 1863 defines and limits the
quantity of Meuse water to be used for feeding the Belgian system of Campine
canals, and it is also common ground that the feeder at Maestricht is to be
the only feeder. The cubic metre per second which is added by the lockage at
Neerhaeren is therefore contrary to the Treaty of 1863.
 As already mentioned above, there is another reason why the discharge
of lock-water, which goes to feed the Zuid-Willemsvaart, is contrary to the
Treaty of 1863. This discharge restricts the right reserved to the
Netherlands by paragraph 2 of Article V to increase the volume of water
drawn from the Meuse at Maestricht. The lockage at Neerhaeren diminishes the
right to increase the two cubic metres per second allowed to the Netherlands
under paragraph I of Article V, by about one cubic metre per second.
 In its submissions I c and I d, the Netherlands Government asks the
Court to declare that Belgium's project of feeding a section of the Hasselt
Canal with water taken from the Meuse elsewhere than at Maestricht is
contrary to the Treaty of 1863, and that Belgium's project of feeding the
section of the canal joining the Zuid-Willemsvaart and the Scheldt between
Heren-thals (Viersel) and Antwerp with water taken from the Meuse elsewhere
than at Maestricht, is also contrary to the said Treaty.
 These two submissions can be examined in conjunction, as they are very
 The Netherlands do not allege that Belgium would not be entitled to
enlarge the canals situated below Maestricht or to change their names. In
point of fact, Belgium has considerably enlarged, not only the
Zuid-Willemsvaart, but also parts of the system of the Belgian Campine
canals, in particular the Meuse-Scheldt Junction Canal and the Hasselt
branch. But, in enlarging these canals, Belgium is not entitled to exempt
them from the rules governing their supply with Meuse water, which are laid
down in the Treaty of 1863. It is common ground that the Treaty of 1863 lays
down eight cubic metres per second as the volume to be taken through the
feeder at Maestricht for this purpose. It is also agreed that the sector of
the canal linking the Zuid-Willemsvaart with the Scheldt between Herenthals
(Viersel) and Antwerp will also receive Meuse water through the Albert
Canal, which, as far as lock No. I, stands at a level of 60 and then falls
more than 50 metres by locks I to V before reaching Herenthals, and all
these locks are provided with discharging culverts which, it is admitted,
[p68] will be utilized for feeding the different reaches of the canal. It
follows from the above that the feeding of this sector in the manner
projected will be contrary to the Treaty of 1863.
 The same applies to the section of the Hasselt Canal which is now
being enlarged and will also form part of the Albert Canal. The Netherlands
do not contest Belgium's right to feed this section of the Hasselt Canal
with water from the Demer. The question of fact on which the two Governments
differ is whether this section, in addition to the water which it receives
from the Demer, is also fed by Meuse water coming from the feeder at
Maestricht and conveyed beyond Ouaedmechelen by the northern section of the
Hasselt Canal. It appears that this question of fact can be left on one
side. But it seems clear to me that this is a case of a canal situated below
Maestricht, one of the already existing canals in the Campine mentioned in
the statement of reasons drawn up by the Prime Minister, M. Rogier, and that
in consequence this canal may only receive Meuse water derived through the
feeder at Maestricht. It is also common ground that this enlarged portion of
the canals situated below Maestricht will henceforward receive Meuse water
derived from Monsin ; hence the projected feeding of this section with water
diverted from the Meuse elsewhere than at Maestricht will be contrary to the
Treaty of 1863.
 The Belgian Agent said on page 14 of the Counter-Memorial that, if the
Albert Canal from Pulle onwards, instead of being linked with the canal
uniting the Meuse and the Scheldt, had been placed alongside it, separated
from it by a dyke which prevented the waters from mixing, the charge made by
the Netherlands would never have been brought. That is true, but it is true
also that this hypothetical contingency did not arise and that, once the
Albert Canal were completed, the canals situated below Maestricht, apart
from the Neerhaeren Lock, will be fed with Meuse water not coming from the
Maestricht feeder. I would add that the Netherlands Agent, replying to the
above-mentioned remark of his Belgian colleague, said that if Belgium had
constructed other works than she has, the Netherlands complaints would
certainly have taken another form and been furnished with a very different
legal basis (Netherlands Reply, p. 24).
 With regard to the counter-claim, I need only make the following
 It is clear from pages 26, 27 and 29 of the Netherlands Reply that, as
regards both the Borgharen barrage and the Bossche-veld Lock and Juliana
Canal, the Netherlands defence rests upon Article V, paragraph 2, of the
1863 Treaty. [p69]
 And the oral statement of the Netherlands Agent (Oral Pleadings, pp.
52-69) has the same foundation.
 The Netherlands defence begins on page 52 with the following sentence
: "The points at issue in the case submitted to the Court through the
Belgian counter-claim are three in number ; but they have a common basis, or
rather our defence is based upon a single point of law. I want first to
discuss this common point of law : it is the question of the distribution of
water and of Article V, paragraph 2, of the Treaty." Pages 52-62 are almost
entirely devoted to the interpretation of Article V, paragraph 2, and pages
62-69 then apply this interpretation to the three hydraulic installations
impugned in the counter-claim. On pages 62 and 67 the Netherlands Agent
again says that his defence against the counter-claim rests upon Article V,
paragraph 2, of the Treaty of 1863.
 One would search the Netherlands defence against the counterclaim in
vain to find any allusion to the right of control, which, as already
mentioned above, serves as the basis of the Netherlands submission I a only.
 The Netherlands interpretation of paragraph 2 of Article V of the 1863
Treaty may, I think, be summarized as follows.
 This provision allows, or rather it presupposes, that the Netherlands
are free to withdraw water from the Meuse below Maestricht. Any
interpretation which restricted this freedom would be vexatious and
therefore inadmissible. Article V, paragraph 2, deals only with the case in
which the Netherlands should decide to divert quantities of water from the
Meuse into the Maestricht feeder in addition to the quantity laid down in
Article IV and Article V, paragraph I : only in this case is the additional
water to pass into the Netherlands through lock No. 17 at Loozen.
 The mere right to divert additional water into the Zuid-Willemsvaart
allows the Netherlands to put the Meuse constantly out of use for an average
of more than a hundred days in the year. This implies that Belgium, by
accepting the Treaty of 1863, left the navigability of the frontier section
of the Meuse to the discretion of the Netherlands, Belgium, so to speak,
abandoning the interests of navigation over that part of the Meuse to the
care of the Netherlands.
 The freedom enjoyed by the Netherlands of taking water from the Meuse
below Maestricht, a right which Belgium admitted when she disclaimed
interest in navigation over the frontier section of the Meuse through her
acceptance of Article V, paragraph 2, allows the Netherlands, on the one
hand, to feed the Juliana Canal with Meuse water and, on the other, to make
a present to Belgium of certain quantities of water from the Meuse, [p70]
which they do through the operation both of the Borgharen barrage and of the
 It follows from the above that the feeding of the Zuid-Willemsvaart as
the result of the Borgharen barrage and the functioning of the Bosscheveld
Lock, and also the feeding of the Juliana Canal with water from the Meuse,
are, according to the Netherlands case, permissible under Article V,
paragraph 2, of the Treaty of 1863.
 I am of opinion that Article V, paragraph 2, does not possess the very
wide scope given to it by the Netherlands case, and that some of the
consequences which that argument seeks to deduce therefrom are not
 The Treaty of 1863 confines itself to regulating the supply with Meuse
water of the canals situated below Maestricht and of the irrigation channels
of the Campine and the Netherlands (Art. I). The waterways in question are
therefore the Zuid-Willemsvaart and the canals and irrigation channels
branching from it. Though, under Article V, paragraph 2, the Netherlands are
entitled to increase the volume of water assigned to them by the first
paragraph of Article V, that additional water must be necessary for canals
situated below Maestricht or for irrigation in the Netherlands. The water
must also pass through the Maestricht feeder, the exclusive use of which is
incumbent both upon Belgium and upon the Netherlands, although, as mentioned
above, its practical value below Maestricht is limited to the immediate
neighbourhood of that town ; the very general wording of Article I is clear
on this point. The last phrase in paragraph 2 of Article V imposes upon
Belgium the duty of delivering to the Netherlands the additional water taken
at Maestricht in virtue of the first phrase in that paragraph.
 Applying my interpretation to the points at issue in the
counter-claim, I reach the following result.
 The feeding of the Zuid-Willemsvaart with water from the working of
the Bosscheveld Lock remains within the limits fixed by paragraph 2 of
Article V, so far as concerns the speed of the current in the
Zuid-Willemsvaart. There is however a departure from the Treaty in the fact
that the additional water, lawful in itself, if needed for the Netherlands
canals below Maestricht or for Netherlands irrigation, does not pass through
the treaty feeder. The departure is certainly of smaller extent than between
the Treaty and the use of the lock-water at Neerhaeren, which, unlawful in
itself, diminishes the right possessed by the Netherlands under paragraph 2
of Article V, while the measurement of the volume of water withdrawn from
the Meuse is rendered difficult since it cannot be effected by the same
 As we know, the lock-water discharged by the Bosscheveld Lock is not
the subject of a submission in the Belgian counterclaim.
 The additional water which at certain seasons of the year passes
through the Maestricht feeder as the result of the raising of the level of
the Meuse–itself the consequence of the Borgharen barrage–has nothing to do
with Article V, paragraph 2, of the Treaty.
 This water is part of the quantities laid down in Article IV and
secures for the Zuid-Willemsvaart a permanent flow of ten cubic metres per
second, which the Belgian Minister for Foreign Affairs, in his note of
January 22nd, 1912 (Netherlands Reply, p. 72), thought indispensable to feed
the canals from Liege to Antwerp. I do not see why this state of affairs
should have made it impossible to apply the Treaty regularly, as Belgium
.asserts it has, all the less so because, even in 1863, the Meuse regime was
characterized by a number of barrages with locks, constructed both by France
and by Belgium in the absence of any international agreement. Had it been
intended to deny to the Netherlands a right which the other riparian States
of the Meuse claimed to possess, the Treaty of 1863 would have made it
clear. For my part, I hold that the Borgharen barrage was not constructed
contrary to the terms of this Treaty.
 As stated above, the Treaty of 1863 confines itself to regulating the
supply of the Zuid-Willemsvaart and of a number of navigation and irrigation
channels, all of which are situated on the left bank of the river. The
Juliana Canal, on the right bank of the Meuse, below the Maestricht feeder,
the working of which it cannot affect, accordingly lies outside the sphere
of the Treaty of 1863. That Treaty cannot therefore either allow the Juliana
Canal to be fed with Meuse water, as maintained by the Netherlands, or
forbid it so to be fed, as maintained by Belgium. The question of the
feeding of the Juliana Canal with water from the Meuse is thus not touched
upon by the Treaty of 1863.
 Lastly, the Netherlands seek to deduce from paragraph 2 of Article V
that Belgium by that Article disclaimed all interest in navigation over the
frontier section of the Meuse, this navigation being left to the discretion
of the Netherlands. This deduction is not I think justified.
 It is true that, when the flow of the river is at its minimum, the
joint section of the Meuse may almost run dry for the reason that the
Maestricht feeder must function at all times. But if there were no intakes
on the Meuse, the river, even if it were not completely dry, would for
considerable periods have so little water that navigation would then too be
out of [p72] the question. Nevertheless, Belgian interest in that navigation
would remain the same. That interest is the direct result of the fact that
Belgium is a riparian State, and it is not limited to the joint section of
the Meuse only, but extends to the whole river.
 The fact that Belgium is a riparian State furnishes a much stronger
ground for Belgium's interest in navigation over the whole Meuse than does
Article IX of the Treaty, quite apart from the fact that this Article is
limited to the part of the river between Maestricht and Venlo. Under Article
IX, Belgium undertook to pay two-thirds of the cost of regularizing the
Meuse between Maestricht and Venlo, since this work was necessary to
counteract the mischievous consequences to river navigation of withdrawing
large quantities of water for Belgium. It is compensation which Belgium
would have had to pay even if she had really disclaimed all interest in
Meuse navigation below Maestricht. The Counter-Memorial describes the
situation very well when it says on page 5 that Belgium to a certain extent
purchased the water taken at Maestricht for the canals of the Campine.
Article IX of the 1863 Treaty does not prove the interest of Belgium in
navigation on the joint section of the Meuse. That interest, whether great
or small, exists by the mere fact that Belgium is a riparian State.
(Signed) V. Eysinga. [p73]
Individual Opinion by Mr. Hudson.
 While I concur in the judgment of the Court, I should prefer a fuller
statement of the reasons for the result reached in regard to one point in
this case, and it seems incumbent upon me to add the following observations.
 The Netherlands Government has asked the Court to say that the
alimentation of certain canals by the Neerhaeren Lock with water taken from
the Meuse elsewhere than at Maestricht is contrary to the Treaty of 1863,
and to order that Belgium should discontinue that alimentation. On the other
hand, the Belgian Government has asked the Court to say that the
alimentation of these canals has not become contrary to the Treaty of 1863
by reason of the fact that lock-water discharged by the bona fide operation
for the passage of boats of the Neerhaeren Lock, which cannot be treated
more unfavourably than the Bosscheveld Lock, is confused with water of the
Meuse taken by the prise d'eau at Maestricht. In its submissions the Belgian
Government does not ask the Court to say that the operation of the
Bosscheveld Lock results in an alimentation of the canals which constitutes
a violation of the Treaty; but the Belgian Agent contends (Counter-Memorial,
p. 17) that if the Court should decide that the functioning of the Belgian
lock at Neerhaeren is in opposition to the Treaty of 1863, it ought to admit
a fortiori that the functioning of the Netherlands lock of Bosscheveld is
not more regular (n'est pas non plus regulier). A further submission of the
Belgian Government, offered alternatively (tres subsidiairement), asks the
Court to say that by the construction of works contrary to the provisions of
the Treaty the Netherlands has lost the right to invoke the Treaty against
 On this presentation of the case, the Court must consider the
functioning of the Bosscheveld Lock in connection with that of the
Neerhaeren Lock. The first question is, therefore, whether the two locks are
to be placed on the same footing.
 The Bosscheveld Lock is situated in a short canal which may be
referred to as the Bosscheveld canal. This canal leads from the Meuse, at a
point below Maestricht and one hundred metres below the prise d'eau
constructed in execution of Article I of the Treaty of 1863, into the
Zuid-Willemsvaart Canal. It is entirely in Netherlands territory. It was
opened for the passage of boats in 1931, without any previous agreement with
the Belgian Government. As the level of the Zuid-Willemsvaart is lower than
that of the Meuse, the Bosscheveld Canal contains [p74] a lock which is used
for the passage of boats. There are no lateral aqueducts beside this lock,
however, and the canal supplies water to the Zuid-Willemsvaart only as a
result of the operation of the lock for the passage of boats. With each
operation of the Bosscheveld Lock, a considerable quantity of water is
discharged from the upper to the lower reach of the canal and thence into
the Zuid-Willemsvaart. Many of the boats which would formerly have passed
through lock No. 19 at Maestricht in entering the Zuid-Willemsvaart now
avoid the use of that lock and pass through the Bosscheveld Canal, thus
using the Bosscheveld Lock.
 The Neerhaeren Lock is situated in a canal which connects the new
Albert Canal with the Zuid-Willemsvaart at Neerhaeren, in what may be
referred to as the Briegden-Neerhaeren branch of the Albert Canal. This
branch, which is entirely in Belgian territory, was opened to service in
1934. It is supplied with water taken from the Meuse at Monsin in Belgian
territory, some twenty-four kilometres above Maestricht. The level of the
branch canal being higher than that of the Zuid-Willemsvaart, a lock at
Neerhaeren must serve for the passage of boats. This lock is equipped with
lateral aqueducts, but they have not been and are not being employed for the
supply of water to the Zuid-Willemsvaart apart from the operation of the
lock for the passage of boats. While the lock at Neerhaeren is of smaller
dimensions than the lock at Bosscheveld, its operation results in the
discharge of a considerable quantity of water into the Zuid-Willemsvaart. As
the Briegden-Neerhaeren canal serves for the passage of boats going from
Liege into the Zuid-Willemsvaart, it may reduce the number of boats using
the Bosscheveld Canal.
 The Bosscheveld Lock and the Neerhaeren Lock are thus alike, in that
the operation of each of them results in supplying to the Zuid-Willemsvaart
a considerable quantity of lock-water taken from the Meuse but not by the
conventional prise d'eau. On the facts, there is no basis for a distinction
between them, so long as the lateral aqueducts in the Neerhaeren Lock are
used only in connection with the functioning of the lock for the passage of
 Is any distinction to be made between the legal positions of the two
locks ? The action of the Netherlands Government in establishing the
Bosscheveld Lock is defended only on the basis of the provision in paragraph
2 of Article V of the Treaty of 1863, which authorizes the Netherlands to
increase the amount of water taken from the Meuse at Maestricht. Even if the
taking of water into the Bosscheveld Canal can be said to be a taking at
Maestricht, it is in no sense an increase [p75] of the amount of water taken
by the conventional prise d'eau at Maestricht. The words a puiser a la Meuse
a Maastricht in paragraph 2 of Article V are the equivalent of the words
puise a la Meuse a Maastricht and pulse d Maastricht in paragraph i of the
same Article, and of the words d puiser d la Meuse in paragraph I of Article
IV. Hence, paragraph 2 of Article V authorizes the taking of water in excess
of the fixed quantity only if the water is taken by the conventional prise
d'eau. Since the lock-water discharged by the Bosscheveld Lock is not thus
taken, paragraph 2 of Article V does not apply, and it affords no reason for
distinguishing the legal basis of the Bosscheveld Lock from that of the
 It must be concluded that, in law as well as in fact, the Bosscheveld
Lock and the Neerhaeren Lock are in the same position. The latter cannot be
treated more unfavourably than the former. If the discharge of lock-water
into the Zuid-Wil-lemsvaart by one of these locks is in accordance with the
Treaty, it is equally so with respect to the other lock ; if such discharge
is a violation of the Treaty as to one lock, it is a violation also as to
the other lock.
 The question arises, therefore, whether in this case the Court must
pronounce upon the legality or the illegality of the alimentation which
results from the operation of either the Neerhaeren Lock or the Bosscheveld
Lock. If the operation of both locks were thought to be in conformity with
the Treaty of 1863, the submissions of the Netherlands Government as to the
Neerhaeren Lock would of course be rejected. It remains to be considered
whether that result would be reached if the operation of both locks were
thought to be in violation of the Treaty of 1863.
 There can be no question here as to the good faith of either Party.
Each Party has proceeded on its own view of the Treaty of 1863. Each has
taken action which has led to the same result, in fact and in law. If the
Court were called upon to give judgment on the action of both of the
Parties, it could do so with due regard to the equal positions of the
Parties ; but here it is asked by one Party to condemn the action taken by
the other. Aside from the fact that the moving Party is the one whose action
preceded that of the other, that the Bosscheveld Lock was put into service
in 1931 and the Neerhaeren Lock only in 1934, is this a case in which
affirmative relief should be given by the Court ? Or should it be said, in
the terms of the alternative Belgian submission, that the Netherlands has in
some measure perdu le droit d'invoquer the Treaty against Belgium ? [p76]
 What are widely known as principles of equity have long been
considered to constitute a part of international law, and as such they have
often been applied by international tribunals. Merignhac, Traite theorique
et pratique de I'Arbitrage internanational (1895), p. 295 ; Ralston, Law and
Procedure of International Tribunals (new ed., 1926), pp. 53-57. A sharp
division between law and equity, such as prevails in the administration of
justice in some States, should find no place in international jurisprudence
; even in some national legal systems, there has been a strong tendency
towards the fusion of law and equity. Some international tribunals are
expressly directed by the compromis which control them to apply "law and
equity". See the Cayuga Indians Case, Nielsen's Report of the United States–
British Claims Arbitration (1926), p. 307. Of such a provision, a special
tribunal of the Permanent Court of Arbitration said in 1922 that "the
majority of international lawyers seem to agree that these words are to be
understood to mean general principles of justice as distinguished from any
particular systems of jurisprudence". Proceedings of the United
States–Norwegian Tribunal (1922), p. 141. Numerous arbitration treaties have
been concluded in recent years which apply to differences "which are
justiciable in their nature by reason of being susceptible of decision by
the application of the principles of law or equity". Whether the reference
in an arbitration treaty is to the application of "law and equity" or to
justiciability dependent on the possibility of applying "law or equity", it
would seem to envisage equity as a part of law.
 The Court has not been expressly authorized by its Statute to apply
equity as distinguished from law. Nor, indeed, does the Statute expressly
direct its application of international law, though as has been said on
several occasions the Court is "a tribunal of international law". Series A,
No. 7, p. 19 ; Series A, Nos. 20/21, p. 124. Article 38 of the Statute
expressly directs the application of "general principles of law recognized
by civilized nations", and in more than one nation principles of equity have
an established place in the legal system. The Court's recognition of equity
as a part of international law is in no way restricted by the special power
conferred upon it "to decide a case ex cequo et bono, if the parties agree
thereto". Anzilotti, Corso di Diritto internazionale (3rd ed., 1928), p. 108
; Habicht, Power of the International Judge to give a Decision ex sequo et
bono (1935), pp. 61 et sqq.; Lauterpacht, Private Law Sources and Analogies
of International Law (1927), pp. 63 et sqq. Cf., Monskheli, "L'equite en
droit international moderne", 40 Revue generate de Droit international
public (1933), p. 347; [p77] Strupp, "Le droit du juge international de
statuer selon 1'equite", 33 Recueil des Cours (1930), pp. 357 et sqq. It
must be concluded, therefore, that under Article 38 of the Statute, if not
independently of that Article, the Court has some freedom to consider
principles of equity as part of the international law which it must apply.
 It would seem to be an important principle of equity that where two
parties have assumed an identical or a reciprocal obligation, one party
which is engaged in a continuing non-performance of that obligation should
not be permitted to take advantage of a similar non-performance of that
obligation by the other party. The principle finds expression in the
so-called maxims of equity which exercised great influence in the creative
period of the development of the Anglo-American law. Some of these maxims
are, "Equality is equity" ; "He who seeks equity must do equity". It is in
line with such maxims that "a court of equity refuses relief to a plaintiff
whose conduct in regard to the subject-matter of the litigation has been
improper". 13 Halsbury's Laws of England (2nd ed., 1934), p. 87. A very
similar principle was received into Roman Law. The obligations of a vendor
and a vendee being concurrent, "neither could compel the other to perform
unless he had done, or tendered, his own part". Buckland, Text Book of Roman
Law (2nd ed., 1932), p. 493. The exceptio non adimpleti contractus required
a claimant to prove that he had performed or offered to perform his
obligation. Girard, Droit romain (8th ed., 1929), p. 567 ; Saleilles, in 6
Annales de Droit commercial, (1892), p. 287, and 7 id. (1893), pp. 24, 97
and 175. This conception was the basis of Articles 320 and 322 of the German
Civil Code, and even where a code is silent on the point Planiol states the
general principle that "dans tout rapport synallagmatique, chacune des deux
parties ne peut exiger la prestation qui lui est due que si elle offre elle-meme
d'executer son obligation". Planiol, Droit civil, Vol. 2 (6th ed., 1912), p.
 The general principle is one of which an international tribunal should
make a very sparing application. It is certainly not to be thought that a
complete fulfilment of all its obligations under a treaty must be proved as
a condition precedent to a State's appearing before an international
tribunal to seek an interpretation of that treaty. Yet, in a proper case,
and with scrupulous regard for the limitations which are necessary, a
tribunal bound by international law ought not to shrink from applying a
principle of such obvious fairness. [p78]
 On the assumption that the alimentation of canals by the functioning
of the Neerhaeren Lock and the Bosscheveld Lock is contrary to the Treaty of
1863, is this a case in which the Court ought to apply the principle
referred to ? Here the Parties are not before the Court under a special
agreement in which they have mutually agreed to seek the Court's
interpretation of the Treaty of 1863. This proceeding was instituted by the
Netherlands. The jurisdiction of the Court rests on the declarations made by
the Parties under paragraph 2 of Article 36 of the Statute. It is the
Court's obligatory jurisdiction which is invoked, without challenge by
Belgium. If it is important that this jurisdiction should not be attenuated
by the action of the Court itself, it is no less important that it be
exercised within the limitations which equity imposes. As the moving Party,
the Netherlands asks that the Belgian action with respect to the operation
of the Neerhaeren Lock be declared contrary to the Treaty of 1863, and that
Belgium be ordered to discontinue that action. Yet, in its operation of the
Bosscheveld Lock, the Netherlands itself is now engaged in taking precisely
similar action, similar in fact and similar in law. This seems to call for
an application of the principle of equity stated above.
 One result of applying the principle will be that even if the Court
should be of the opinion that the Belgian action with regard to the
functioning of the Neerhaeren Lock is contrary to the Treaty of 1863, it
should nevertheless refuse in this case to order Belgium to discontinue that
action. In equity, the Netherlands is not in a position to have such relief
decreed to her. Belgium cannot be ordered to discontinue the operation of
the Neerhaeren Lock when the Netherlands is left free to continue the
operation of the Bosscheveld Lock. The general principle is a sound one that
reparation is "the corollary of the violation of the obligations resulting
from an engagement between States" ; and "it is a principle of international
law, and even a general conception of law, that any breach of an engagement
involves an obligation to make reparation". Series A, No. 17, pp. 27, 29.
Yet, in a particular case in which it is asked to enforce the obligation to
make reparation, a court of international law cannot ignore special
circumstances which may call for the consideration of equitable principles.
Here the Netherlands asks, not for reparation for a past violation of the
Treaty of 1863, but for protection against a continuance of that violation
in the future. The Court is asked to decree a kind of specific performance
of a reciprocal obligation which the demandant itself is not performing. It
must clearly refuse to do so. [p79]
 Is the principle of equity less applicable to the Netherlands' request
that the Court declare that the Belgian action is contrary to the Treaty of
1863, when that request is divorced from the prayer for an injunction ?
There can be no doubt as to the competence of the Court to render
declaratory judgments. Series A, No. 7, p. 19 ; Series A, No. 13, pp. 20,
21. In this respect, it possesses a power analogous to recently-developed
powers of national tribunals. In some countries the conditions under which
declaratory judgments will be given are carefully formulated. Borchard,
Declaratory Judgments (1934), ch. 6. The Statute does not prescribe any
analogous conditions for the declaratory judgments of the Court.
 In some systems of national jurisprudence where the process of
sanction is highly developed, a line might be drawn between requests for
injunctions and requests for declaratory judgments, the principle of equity
being applied to the former but not to the latter. Cf., Lodge v. National
Union Investment Company, Limited  I Ch. 300 ; Chapman v. Michaelson
 i Ch. 238. In international jurisprudence, however, sanctions are of
a different nature and they play a different role, with the result that a
declaratory judgment will frequently have the same compulsive force as a
mandatory judgment; States are disposed to respect the one not less than the
other. Hence, as a general rule, it would seem that a principle of equity
applicable to a request for an injunction should be applied also to a
request for a declaratory judgment. Neither request should be granted where
the circumstances are such that the judgment would disturb that equality
which is equity. In the circumstances of this case, on the assumption that
the operation of both the Neerhaeren Lock and the Bosscheveld Lock is
contrary to the Treaty of 1863, the Netherlands would not be entitled to a
declaratory judgment for the same reasons that it is not entitled to a
 Less hesitance need be felt in reaching this result because of facts
of which the Court has been apprized in the course of this proceeding. By
their action over a period of years, the Parties to the Treaty of 1863 have
indicated that they are not satisfied with the situation as it exists under
that Treaty. So many changes have taken place–not merely in the regions
served by the Meuse and its dependent canals and in the technology for the
control of that service, but also as a result of the recent construction of
new canals–that the essentially technical arrangement concluded seventy-four
years ago seems to have been recognized to be no longer an adequate
protection for the Parties' mutual interests. Repeated efforts have been
[p80] made by the Parties to negotiate a treaty to replace that of 1863, and
according to statements made to the Court, hopes of such a result have not
been abandoned. The judgment in this case may better serve to facilitate
their future negotiations if it preserves the equality between the Parties.
(Signed) Manley O. Hudson. [p81]
TRAITÉ DU 12 MAI 1863 PORTANT RÈGLEMENT
DU RÉGIME DES PRISES D'EAU A LA MEUSE
Sa Majesté le Roi des Pays-Bas, Grand-Duc de Luxembourg
Sa Majesté le Roi des Belges,
Désirant régler d'une manière stable et définitive le régime des prises
d'eau à la Meuse pour l'alimentation des canaux de naviga¬tion et
d'irrigation, ont résolu de conclure un Traité dans ce but, et ont nommé
pour Leurs Plénipotentiaries:
Sa Majesté le Roi des Pays-Bas,
Messire Paul van der Maesen de Sombreff, Chevalier Grand'Croix de l'Ordre du
Nichan Iftihar de Tunis, Son Ministre des Affaires Étranères,
le Sieur Jean Rudolphe Thorbecke, Chevalier Grand'Croix de l'Ordre du Lion
Néerlandais, Grand'Croix de l'Ordre Léopold de Belgique et de plusieurs
autres Ordres, Son Ministre de l'Intérieur, et le Sieur Gérard Henri Betz,
Son Ministre des Finances,
et Sa Majesté le Roi des Beiges,
le Sieur Aldephonse Alexandre Félix Baron Dujardin, Commandeur de l'Ordre
Léopold, décoré de la Croix de Fer, Commandeur du Lion Néerlandais,
Chevalier Grand'Croix de la Couronne de Ch?ene, Grand'Croix et Commandeur de
plusieurs autres Ordres, Son Envoyé Extraordinaire et Ministre
Plénipotentiaire près Sa Majeste le Roi des Pays-Bas,
lesquels, après avoir échangé leurs pleins pouvoirs trouvés en bonne et due
forme, ont arr?eté les articles suivants:
Article I. — Il sera construit sous Maastricht au pied du glacis de la
forteresse une nouvelle prise d'eau à la Meuse, qui constituera la rigole
d'alimehtation pour tous les canaux situés en aval de cette ville, ainsi que
pour les irrigations de la Campine et des Pays-Bas.
Article II. — L'écluse n° 19 à Hocht sera supprimée et rem-placée par une
nouvelle écluse à établir dans le Zuid-Willemsvaart en amont de la rigole
stipulée à l'article I.
La partie du canal comprise entre l'écluse de Hocht et la nouvelle écluse
sera élargie et approfondie, de manière à offrir la même capacité et le même
tirant d'eau que la partie du bief comprise entre l'écluse n° 19 à Hocht, et
l'écluse n° 18 à Bocholt.
Article III. — Le niveau de flottaison de la partie du canal entre
Maastricht et l'écluse n° 18 à Bocholt sera élevé, de manière à ce que
l'écoulement des quantités d'eau désignées dans les art. IV et V du présent
traité, puisse avoir lieu sans que la vitesse moyenne du courant, mesurée
dans l'axe du canal, dépasse un maximum de 25 à 27 centimètres par seconde.
Article IV. — La quantité d'eau à puiser à la Meuse est fixée comme suit:
A. Lorsque la hauteur des eaux de la Meuse se trouve au-dessus de l'étiage
de cette rivière, dix (10) mètres cubes par seconde.
B. Lorsque ces eaux sont à l'étiage ou au-dessous, sept et demi ?(7 1/2)
mètres cubes par seconde du quinze (15) Octobre au vingt (20) Juin, et six
(6) mètres cubes du vingt et un (21) Juin au quatorze (14) Octobre.
La hauteur de l'étiage variant actuellement entre les cotes de 30 et 40
centimètres au-dessus du zéro de l'échelle du pont de Maastricht, correspond
à un minimum de tirant d'eau entre Maastricht et Venlo de soixante-dix (70)
Dans le courant de l'année, après la ratification du présent traité, il sera
placé à l'embouchure de la nouvelle prise d'eau à construire près de
Maastricht du côte de la Meuse, une échelle où sera marquée, de commun
accord, une cote correspondant à la hauteur de l'eau à l'échelle du dit pont
indiquant alors l'étiage.
En conséquence de ce qui précède, il ne sera pas fait usage de la prise
d'eau à la Meuse à Hocht, à partir de l'achèvement de la rigole mentionnée à
Article V. — Sur le volume de dix (10) mètres cubes d'eau, puisé a la Meuse
à Maastricht, il sera attribué aux canaux et aux irriga¬tions des Pays-Bas,
deux (2) mètres cubes par seconde à déverser par l'ecluse n° 17 à Loozen.
Cette quantité de deux (2) mètres cubes sera réduite à un et demi (1,50)
mètre cube aussitôt que le volume d'eau puisé à Maastricht sera diminué
conformément à ce qui est stipulé à l'article précédent.
Il sera loisible au Gouvernement des Pays-Bas d'augmenter le volume d'eau à
puiser à la Meuse à Maastricht, sans que toutefois par là la vitesse du
courant dans le canal puisse excéder les limites fixées à l'art. III. Ce
surplus sera également déversé par l'écluse n° 17 à Loozen.
Article VI. — Le Gouvernement Beige s'engage à rejeter dans les canaux de
navigation, du quinze (15) Mai au.quinze (15) Juillet au moins, les eaux
provenant des irrigations effectuées en Belgique, soit au moyen de machines,
soit par un canal colateur ou par tout autre moyen propre à atteindre le but
Toutefois, si la construction d'un canal colateur ou de tout autre ouvrage
sur le territoire Néerlandais était jugé nécessaire, le Gouverne¬ment des
Pays-Bas se réserve l'approbation des plans et la surveillance de
1'exécution et de l'entretien qui seront à la charge du trésor Belge.
Les ruisseaux ou courants d'eau, qui seront traversés par ces ouvrages,
conserveront leur cours naturel. Si dans la suite, le Gou¬vernement des
Pays-Bas désirait faire usage du colateur, soit pour l'alimentation de
canaux, soit comme voie de navigation, cette question fera l'objet de
Article VII. — Le Gouvernement Beige laissera ou rendra à leur cours naturel
les ruisseaux et courants d'eau qui, ayant leur source en Belgique, se
dirigent vers le territoire Neerlandais. [p83]
Article VIII. — Les hautes parties contractantes prendront les mesures
nécessaires pour prévenir, autant que possible, les ch?omages des canaux de
Liège à l'écluse n° 17 à Loozen.
Aucun abaissement des niveaux de flottaison ordinaires de ces canaux ne
pourra avoir lieu qu'après entente préalable entre les deux Gouvernements.
Article IX. — Dans le but d'améliorer la navigabilité de la Meuse entre
Maastricht et Venlo, les hautes parties contractantes feront exécuter dans
cette partie de la rivière, pendant neuf années consé-cutives, commençant en
1864, les travaux indiqués dans le tableau et la note explicative joints au
présent traité jusqu'à concurrence d'une somme de 100.000 florins par an.
Un tiers de cette somme sera payé par les Pays-Bas et deux tiers par la
Les projets définitifs de ces travaux à exécuter annuellement seront
dressés, de commun accord, par les fonctionnaires désignés à cet effet, et
soumis a l'approbation des deux Gouvernements.
Les travaux projetés et arrêtés conformément à ce qui précède, seront
exécutés par les soins des agents du Gouvernement sur le territoire duquel
ils seront situés. L'entretien de ces travaux, après leur achèvement, sera à
la charge du Gouvernement sur le territoire duquel ils sont établis.
Article X. — La construction de la nouvelle prise d'eau à Maastricht
mentionnée dans l'art. I, ainsi que l'exécution des travaux nécessaires pour
satisfaire aux stipulations de l'art. II, auront lieu à frais communs.
Les projets de ces travaux seront arr?etés et exécutés de la manière
indiquée dans l'art. IX pour les travaux de la Meuse.
Toutefois il est. entendu que le total des dépenses à la charge du
Gouvernement Beige, d'après les stipulations des art. IX et X, n'excèdera
pas la somme de 900.000 florins.
Article XI. — Si dans la suite le Gouvernement des Pays-Bas jugeait utile
d'exécuter ou de laisser exécuter des travaux rendant nécessaire
l'augmentation du volume d'eau à puiser à la Meuse à Maastricht, tel qu'il
est fixé dans le présent traité, le concours du Gouvernement Beige aux
mesures nécessaires pour assurer 1'écoule-ment des eaux par le
Zuid-Willemsvaart, sera réglé entre les deux Gouvernements.
Article XII. — Par extension des dispositions de l'article 10me de la
Convention du 8 Ao?ut 1843, aucun ouvrage qui serait de nature à modifier le
courant et par là à nuire à la rive opposée, ne pourra ?etre construit à une
distance de moins de 150 mètres du Thalweg de la Meuse, là où elle forme
limite, que de commun accord entre les deux hautes parties contractantes.
Article XIII. — Les hautes parties contractantes s'engagent a faire exécuter
les ouvrages indiqués aux art. I, II et VI avant le premier janvier 1866, ou
plustôt si faire se peut.
Immédiatement après l'achèvement de ces ouvrages, il sera donné suite aux
stipulations des art. Ill, IV, V, VI et VII. [p84]
Jusqu'à cet achèvement l'alimentation des canaux et des irriga¬tions aura
lieu, conformément à ce qui s'est fait pendant les deux dernières années.
Article XIV. — Le présent traité sera ratifié et les ratifications en seront
échangées à La Haye dans le délai de quatre mois ou plust?ot si faire se
En foi de quoi les Plénipotentiaires susdits l'ont signé et y ont apposé
Fait à La Haye, le douze Mai mil huit cent soixante trois.
(Signé) P. VAN DER MAESEN DE SOMBREFF.
(Signé) BON DU JARDIN.
(Signé) G. H. BETZ.
Pour copie conforme à l'original:
(Signé) B. M. TELDERS,
Agent du Gouvernement des Pays-Bas. [p85]
I.—DOCUMENTS FILED IN THE COURSE OF THE WRITTEN PROCEEDINGS
A.—On behalf of the Netherlands Government:
1. Treaty of May 12th, 1863, regulating the diversion of water from the
2. Map (scale 1: 400,000) of the canals situated below Maestricht existing
in 1863 and of sections of the Albert Canal and its branches, in operation,
projected or in course of construction.
3. Letter from the Belgian Minister at The Hague to the Netherlands
Minis¬ter for For. Aff. (Feb. 19th, 1863).
4. Exposé des motifs by the Belgian Government to the Chamber of
Representatives concerning the Treaty concluded between the Netherlands and
Belgium on May 12th, 1863, to regulate the régime for the diversion of water
from the Meuse.
5. Letter from the Permanent Deputation of the Provincial States of
Nether¬lands Limburg to the Second Chamber of the States-General (Jan. 22nd,
6. Extracts from the report of M. van Diesen, Engineer, to.the Netherlands
Minister of the Interior (Aug. 24th, 1862)1.
7. Extracts from the report of M. van der Kun, Chief Inspector to the
Waterstaat, to the Netherlands Minister of the Interior (Sept. 2nd, 1862) 1.
8. Extracts from the report of M. van Opstall, Engineer, to the Netherlands
Minister of the Interior (June 8th, 1863) 1.
9. Extracts from the report of M. Kűmmer, Chief Engineer, to the Belgian
Minister of the Interior (Dec. 26th, 1849) 1.
10. Letter from the Netherlands Minister at Brussels to the Minister for
For. Aff. at The Hague (Oct. 3rd, 1862).
11. Letter from the Netherlands Minister at Brussels to the Minister for
For. Aff. at The Hague (Oct. 7th, 1862).
12. Letter from the Netherlands Minister at Brussels to the Minister for
For. Aff. at The Hague (Oct. 10th, 1862).
13. Extract from the Exposé des motifs by the Netherlands Government to the
Second Chamber of the States-General, accompanying the draft law approving
certain clauses in the Treaty concluded between the Netherlands and Belgium
on May 12th, 1863, to regulate the ?regime for the diversion of water from
the Meuse 1.
14. Extract from the provisional report of the Second Chamber of the
States-General on the draft law approving certain clauses in the Treaty
concluded between the Netherlands and Belgium on May 12th, 1863, to regulate
the regime for the diversion of water from the Meuse1.
15. Extract from the memorandum by which the Netherlands Government replied
to the provisional report of the Second Chamber of the States-General
concerning the draft law approving certain clauses in the Treaty concluded
between the Netherlands and Belgium on May 12th, 1863, to regulate the
régime for the diversion of water from the Meuse 1.
16. History of the Hocht intake, with the following maps:
(a) Plan of ground between Maestricht and Neerhaeren relating to the scheme
for extending the navigable feeder of the large northern canal as far as the
town of Maestricht (1819). [p86]
(b) Plan of the Meuse below Smeermaes : commune of Lanaeke, Province of
(c) Situation of the Zuid-Willemsvaart and of the feed-canal (intake) above
chamber-lock No. 19 at Hocht, as recorded in March 1859.
17. Convention (not ratified) concluded on September 21st, 1861, between the
Netherlands and Belgium, establishing the rules concerning diversions of
water from the Meuse.
18. Extract from the report of M. van der Kun, Chief Inspector to the
Waterstaat, to the Netherlands Minister for the Interior (Sept. 2nd, 1862).
19. Belgian proposals annexed to the letter from the Belgian Minister at The
Hague to the Netherlands Minister for For. Aff. (Feb. 19th, 1863, Annex I,
20. Text of Articles IV and XIV of the last preliminary draft of the Treaty
of 1863, initialled by M. Vanderstichelen, Belgian Minister for Public
Works, and by M. van der Maesen de Sombreff, Netherlands Minister for For.
21. Extract from the Exposé des motifs by the Netherlands Government to the
Second Chamber of the States-General accompanying the draft law approving
certain clauses in the Treaty concluded between the Nether¬lands and Belgium
on May 12th, 1863, to regulate the régime for the diversion of water from
22. Extract from the provisional report of the Second Chamber of the
States-General on the draft law approving certain clauses in the Treaty
concluded between the Netherlands and Belgium on May 12th, 1863, to regulate
the ?regime for the diversion of water from the Meuse.
23. Extracts from the Minutes of the meetings of June 26th and 27th, 1863,
of the Second Chamber of the States-General.
24. Extract from the memorandum by the Netherlands Government replying to
the provisional report of the Second Chamber of the States-General,
concerning the draft law approving certain clauses in the Treaty concluded
between the Netherlands and Belgium on May 12th, 1863, to regulate the
régime for the diversion of water from the Meuse.
25. Extracts from the Minutes of the meetings of June 26th and 27th, 1863,
of the Second hamber of the States-General, and of the meeting of July 4th,
1863, of the First ChambCer of the States-General.
26. Extracts from certain technical manuals showing that water called
"lock-water" is included in the quantities of water necessary for the supply
of a canal.
27. Time-table of the Neerhaeren Lock.
28. Certain observations in reply to the note of the Belgian Administration
on the flow of the Meuse.
29. Letter from the Belgian Minister for For. Aff. to the Netherlands
Minister at Brussels (Jan. 22nd, 1912).
30. Letter from the Netherlands Minister at Brussels to the Belgian Minister
for For. Aff. (Feb. 19th, 1912).
31. Letter from the Belgian Minister for For. Aff. to the Netherlands
Minister at Brussels (Feb. 16th, 1914).
32. Bijblad 1 &2 Kamer tot de Nederl.. St. Courant — Handelingen van de
Staten-Generaal, 1862-1863, containing the full text of Nos. 23 and 25
33. Photostatic reproduction of an extract of the copy of the proposals of
Baron Dujardin, Belgian Minister at The Hague, with marginal notes by M. van
der Maesen de Sombreff, the Netherlands Minister for For. Aff.
34. Reports on the work of the Navigation Office for the years 1934 and
I935, published by the Belgian Ministry for Public Works.
35. (For information.) Work entitled : Les Votes navigables en Belgique (ed.
of 1842 and 1880). [p87]
36. (For information.) Work entitled : A Treatise on Rivers and Canals
(Oxford, 1882), Vol. I, by L. F. Vernon-Harcourt.
B.—On behalf of the Belgian Government:
1. History of the Hocht intake (note).
2. Text of the Convention and Declaration of January 11th, 1873.
3. Note by the Belgian Administration on the flow of the Meuse.
4. Note delivered by the Belgian Minister at The Hague to the Netherlands
Minister for For. Aff. (April 28th, 1921).
5. Note transmitted on July 29th, 1921, to the Belgian Minister at The Hague
by the Netherlands Minister for For. Aff.
6. Instructions sent on March 6th, 1922, by the Belgian Minister for For.
Aff. to the Belgian Minister at The Hague.
7. Letter from the Netherlands Minister for For. Aff. to the Belgian
Minister at The Hague (March 13th, 1923).
8. Letter from the Belgian Minister for For. Aff. to the Belgian Minister at
The Hague (Sept. 12th, 1923).
9. Letter from the Secretary-General of the Belgian Ministry for For. Aff.
to the Netherlands Minister at Brussels (July 30th, 1935).
10. Letter from the Netherlands Minister at Brussels to the Belgian Minister
for For. Aff. (Feb. 12th, 1906).
Maps and plans:
A. Plan of Maestricht and of the waterways directly below.
B. Map of the Hasselt Canal (its supply by the Demer).
C. Longitudinal and cross sections of the last part 01 the Albert Canal.
II.—DOCUMENTS FILED IN THE COURSE OF THE ORAL PROCEEDINGS :
A.—On behalf of the Netherlands Government:
1. Photograph of the Albert Canal at Viersel.
2. "Collection of Treaties and Conventions concluded by the Kingdom of the
Netherlands with foreign Powers from 1813 until our own day", by E. G.
Lagemans, Vols. II, III and V, containing inter alia:
(а) Table and explanatory note annexed to the Treaty of May 12th, 1863,
regulating the régime for the diversion of water from the Meuse (mentioned
in Article IX of the said Treaty).
(б) Treaty of November 5th, 1842 (cited on p. 10 of the Rejoinder).
(c) Frontier Convention between the Netherlands and Belgium (cited on p. 4
of the Memorial and p. 22 of the Rejoinder).
(d) Treaty of Separation of April 19th, 1839 (cited on p. 6 of the Memorial)
(e) Conventions of 1845 and 1850 relating to the Liége-Maestricht lateral
3. "Annals of Public Works of Belgium", 1928 and 1933.
4. "Bulletin of the Belgian Association of Engineers and Industrialists",
1930, 1931 and 1933.
5. Revue universelle des Mines, de la Métallurgie, des Travaux publics, des
Sciences et des Arts appliqués à l'Industrie. Year Book of the Association
of Engineers qualified at the College at Liege, 1930.
6. Work entitled : Le problème de la Meuse, by L. Ardent, 1931.
7. Note by the Directorate of the Waterstaat on the supply of the Juliana
Canal (May 16th, 1937). (Text in Dutch, with French transl.) [p88]
B.—On behalf of the Belgian Government:
1. "Belgian Grey Book". Diplomatic document concerning the revision of the
Treaties of 1839, published at Brussels in 1929. (Document containing on pp.
11 et sqq. the text of the Belgo-Netherlands Treaties of April 3rd, 1925,
and May 22nd, 1926.)
2. Report of the official Netherlands Commission appointed by Royal decree
of May 30th, 1921, No. 96, for the purpose of collecting documentation
concerning the national supply of electricity (Verslag der Staatscommissie
ingesteld bij Koninklijk Besluit van 30 Mei 1921, No. 96. Оm van
Voorlichting te dienen omtrent de Electriciteits-Voorziening van het Land.—
's-Gravenhage, Algemeene Landsdrukkerij, 1925).
3. Netherlands Aide-mémoire filed on March 29th, 1934, with the Ministry for
For. Aff. at Brussels.
4. Cuttings from the following newspapers, with French translations :
(1) Limburger Koerier, of Maastricht (Dec. 5th, 1934)-
(2) Algemeen Handelsblad, of Amsterdam (Dec. 18th, 1934).
(3) Algemeen Handelsblad, of Amsterdam (Dec. 19th, 1934).
(4) Nieuwe Rotterdamsche Courant (June 8th, 1935 ; two articles).
(5) Algemeen Handelsblad, of Amsterdam (June 12th, 1935).
5. Summary of conversation of December 17th, 1934, between the Belgian
Minister for For. Aff. and the Netherlands Minister at Brussels.
6. Work entitled : "Belgo-Netherlands Commission appointed to study the
canalization of the frontier section of the Meuse" (Nederlandsch-Belgische
Commissie ingesteld tot onderzoek van de kanalisatie van de
Gemeenschappe-lijke Maas) :
1st Part : Minutes of meetings.
2nd ,, : Report of work of the Commission.
7. Text of statements made in the Belgian Senate at the meeting of Tuesday,
March 16th, 1937, by M. Merlot, Minister for Public Works and for Reduction
of Unemployment, in reply to the speech by M. Nothomb, Senator.
81. (a) Regulations of May 20th, 1843, for the execution of Article 9 of the
Treaty of April 19th, 1839, concerning the navigation of the Meuse.
(b) Convention of May 8th, 1851, between Belgium and the Netherlands for the
abolition of tolls on navigation of the frontier section of the Meuse.
(c) Convention of April 23rd, 1852, between Belgium and the Netherlands to
regulate the supervision of osier plantations on the banks of the frontier
section of the Meuse.
(d) Convention of December nth, 1860, regulating police and steam navigation
on the part of the Meuse forming the frontier between Belgium and the
(e) Convention of October 31st, 1885, between Belgium and the Netherlands
regulating police and navigation for the part of the Meuse situated on
Belgian territory, and amending the International Regulations of May 20th,
1843, concerning the navigation of the Meuse.
9. Royal decree of October 15th, 1935.
10. Work entitled : De kanalisatie der Maas, by J. Schaepkens van Riempst.
11. (For information.) Work entitled : Voies navigables de la Belgique,
published in 1880. [p89]
C.—Documents collected by the Registry on instructions from the Court:
1. Treaty of May 12th, 1863, between Belgium and the Netherlands concern¬ing
the redemption of the Scheldt tolls. (Text taken from de Martens' Nouveau
Recueil général de Traités, Vol. XVII : 2, p. 230.)
2. Treaty of commerce and navigation between the Netherlands and Belgium,
signed at The Hague on May 12th, 1863. (Id., ibid., p. 249.)