the diversion of water from meuse

8/19/2019 The Diversion of Water From Meuse

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The Diversion of

Water from Meuse


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MEUSE RIVER


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Maastricht


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FACTS:

• On May 12th, 1863, Belgium and the

Netherlands made a Treaty for the purpose ofsettling “permanently and definitively the regime

governing diversions of water from the Meuse for

the feeding of navigation anals and irrigation

hannels!"

• #rovision$ onstrution %elow Maestriht, in

&etherlands territory, of a new inta'e whih wouldonstitute (the feeding onduit for all anals

situated %elow that town and for irrigation in the

)ampine and in the &etherlands!


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• *ue to eonomi developments of the provine

of +im%urg, the enlargement of ertain anals

and the onstrution of new wor's wereneessary

• ene &etherlands and -elgium signed in 1.2/a new agreement designed to settle the

differenes whih had arisen in respet of the

onstrution programmes!

• The agreement was not wholly aepta%le to

%oth parties!


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• &etherlands proeeded to onstrut and

omplete the following$

Juliana Canal


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Bosscherveld Lock


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Sluice Gate in Bosscherveld


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Borgharen Barrage


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Borgharen Barrage


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• -elgium %egan the onstrution of the

following$

Albert Canal

0unfinished at the time of the udgment


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Albert Canal


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Barrage at Monsin


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Neerharen Canal


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• The Netherlands as! the Court to"

ad#udge and declare that the $or!s alreadcarried out b %elgium $ere contrar to the Treat of &'()*

that the proposed $or!s $ould be contrar to

it* and to +order %elgium• to discontinue all the $or!s+ listed in the

Netherlands submissions and +to restore to acondition consistent $ith the Treat of &'() all

$or!s constructed in breach of that Treat*• b- to discontinue an feeding held to be contrar to

the said Treat and to refrain from an further suchfeeding.


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• %elgium as!s the Court to"

to ad#udge and declare that the%orgharen barrage $as constructed inbreach of the stipulations of the Treat

of &'()* that the /uliana Canal is sub#ect to the

pro0isions of the Treat* and

to reser0e the rights accruing to

%elgium from the breaches socommitted.


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$udgement• 4s to the main ontention of The &etherlands$

the Treaty of !"# did not confer to the Netherlands a right of

control and de$rive Belgium of any claim% &n order to allo' thee(istence of such ine)uality bet'een the *arties to a treaty freely

concluded+ the te(t of the treaty must say so in $recise terms%

• The Treaty annot %e dissoiated from the others and it must %e read

together as a whole! 5ine the Treaty never epressly onferred to The

&etherlands, -elgium annot %e stopped from onstruting their ownanals and to utili7e the water from Meuse!

• &othing prevents either -elgium or the &etherlands from ma'ing suh

use as they may see fit of the anals overed %y the Treaty, when the

anals do not leave their own territory! ah of the two 5tates is at li%erty

in its own territory to modify suh anals, to enlarge them, to transform

them, to fill them in and even to inrease the volume of water in them,

provided that the diversion of water at the feeder mentioned in the Treaty

and the volume of water to %e disharged therefrom is not affeted!


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As to Belgian counter,claims:

• The Borgharen barrage:

The Treaty does not for%id the &etherlands from altering the depth of

water in the Meuse at Maestriht without the onsent of -elgium,

provided that neither the disharge of water through the feeder, nor thevolume of water whih it must supply, nor the urrent in the 9uid:

;illemsvaart is there%y affeted!

su%et to the onditions in the treaty, The &etherlands are entitled to

dispose of the waters of the Meuse at Maestriht!

As to the Juliana Canal$ the )ourt finds that the Treaty was designed toregulate the supply of water to the anals situated on the left %an' of the

Meuse only! Thus, anals situated on the right %an', suh as the


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%ndividual Concurring &pinion of $udge 'udson

APPLICATION OF THE PRINCIPLE OF EQUITY

+It $ould seem to be an important principle of

e1uit that $here t$o parties ha0e assumedan identical or a reciprocal obligation* onepart $hich is engaged in a continuing non2performance of that obligation should not bepermitted to ta!e ad0antage of a similar non2performance of that obligation b the otherpart.


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A principle in (oman )a"*

The obligations of a 0endor and a 0endee beingconcurrent, 4neither could compel the other toperform unless he had done, or tendered, his o$npart.5

Ma+ims*

4A court of e1uit refuses relief to a plainti6 $hoseconduct in regard to the sub#ect matter of thelitigation has been improper.5

4E1ualit is E1uit5

47e $ho see!s e1uit must do e1uit.5


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$usti,cation of use of -.uit!

The Court is 4a tribunal of International 8a$.5

A(T%C)- /01# The Court, $hose function is to decide in

accordance $ith international la$ suchdisputes as are submitted to it, shall appl"

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c# the general principles of la$ recogni9edb ci0ili9ed nations*

23# This pro0ision shall not pre#udice the

po$er of the Court to decide a case enaequo et bono, if the parties agree thereto.


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In e1uit, the Netherlands cannot as! %elgiumto discontinue the operation of the

Neerhaeren 8oc! $hen the Netherlandsremain free to continue the operation of the%ossche0eld 8oc!.

Neither of these t$o re1uests should begranted $here the circumstances are suchthat the #udgment $ould disturb thate1ualit $hich is e1uit. If it preser0es thee1ualit bet$een the :arties, the #udgmentma better ser0e to facilitate theirnegotiations on the conclusion of a ne$treat to replace that of &'().

the diversion of water from meuse

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