DEFINITION AND SCOPE OF CONCEPT OF PUBLIC INTERNATIONAL LAW.

Every society, irrespective of its population, makes a legal framework (law) under which it
functions and develops. It is permissive in nature as it allows individuals to form legal
relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These
laws are referred to as Municipal laws. The world today requires a framework through which
interstate relations can be developed. International Laws fill the gap for this.

MEANING AND SCOPE

International laws are a set of rules, agreements and treaties that are binding between
countries. Countries come together to make binding rules that they believe will benefit the
citizens. It is an independent system of law existing outside the legal framework of a
particular state.

According to Bentham’s classic definition, international law is a collection of rules governing

relations between states. It is a mark of how far international law has evolved that this
original definition omits individuals and international organizations—two of the
most dynamic and vital elements of modern international law. Furthermore, it is no longer
accurate to view international law as simply a collection of rules; rather, it is a rapidly
developing complex of rules and influential—though not directly binding—principles,
practices, and assertions coupled with increasingly sophisticated structures and processes. In
its broadest sense, international law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors—i.e., primarily
sovereign states but also increasingly international organizations and some individuals. The
range of subjects and actors directly concerned with international law has widened
considerably, moving beyond the classical questions of war, peace, and diplomacy to
include human rights, economic and trade issues, space law, and international organizations.
Although international law is a legal order and not an ethical one, it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.

What is the aim of International law?

The existence of international law is the result of increased interstate engagement. It mainly
aims to maintain international peace and security among different states. It also helps in: 

1. promotion of friendly relations among the member states (members of the

International community, for example, United Nations),
2. providing for basic humanitarian rights,
3. to solve International problems through international cooperation, 
4. to refrain the state from using threat or force over the territory of any other state to
provide for the right to self-determination to people, and
5. to use peaceful methods to settle international disputes are few of its functions.
HISTORICAL OVERVIEW OF INTERNATIONAL LAW

International law reflects the establishment and subsequent modification of a world system
founded almost exclusively on the notion that independent sovereign states are the only
relevant actors in the international system. The essential structure of international law was
mapped out during the European Renaissance, though its origins lay deep in history and can
be traced to cooperative agreements between peoples in the ancient Middle East. Among the
earliest of these agreements were a treaty between the rulers of Lagash and Umma (in the
area of Mesopotamia) in approximately 2100 BCE and an agreement between the Egyptian
pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 BCE. A
number of pacts were subsequently negotiated by various Middle Eastern empires. The long
and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also
vital in the development of international law. In addition, basic notions of governance, of
political relations, and of the interaction of independent units provided by ancient Greek
political philosophy and the relations between the Greek city-states constituted important
sources for the evolution of the international legal system.
Many of the concepts that today underpin the international legal order were established
during the Roman Empire. The jus gentium (Latin: “law of nations”), for example, was
invented by the Romans to govern the status of foreigners and the relations between
foreigners and Roman citizens. In accord with the Greek concept of natural law, which they
adopted, the Romans conceived of the jus gentium as having universal application. In the
Middle Ages, the concept of natural law, infused with religious principles through the
writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St.
Thomas Aquinas (1224/25–1274), became the intellectual foundation of the new discipline of
the law of nations, regarded as that part of natural law that applied to the relations between
sovereign states.
After the collapse of the western Roman Empire in the 5th century CE, Europe suffered from
frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a
number of supranational sets of rules were developed to govern interstate relations, including
canon law, the law merchant (which governed trade), and various codes of maritime law—
e.g., the 12th-century Rolls of Oléron, named for an island off the west coast of France, and
the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century
the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the
introduction of the printing press spurred the development of scientific, humanistic, and
individualist thought, while the expansion of ocean navigation by European explorers spread
European norms throughout the world and broadened the intellectual and geographic
horizons of western Europe. The subsequent consolidation of European states with increasing
wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a
set of rules to regulate their relations. In the 16th century the concept of sovereignty provided
a basis for the entrenchment of power in the person of the king and was later transformed into
a principle of collective sovereignty as the divine right of kings gave way constitutionally to
parliamentary or representative forms of government. Sovereignty also acquired an external
meaning, referring to independence within a system of competing nation-states.
Early writers who dealt with questions of governance and relations between nations included the
Italian lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern
study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal
adviser, and authority on Roman and feudal law. The essence of the new approach, however, can be
more directly traced to the philosophers of the Spanish Golden Age of the 16th and 17th centuries.
Both Francisco de Vitoria (1486–1546), who was particularly concerned with the treatment of the
indigenous peoples of South America by the conquering Spanish forces, and Francisco Suárez (1548–
1617) emphasized that international law was founded upon the law of nature. In 1598 Italian jurist
Alberico Gentili (1552–1608), considered the originator of the secular school of thought in
international law, published De jure belli libri tres (1598; Three Books on the Law of War), which
contained a comprehensive discussion of the laws of war and treaties. Gentili’s work initiated a
transformation of the law of nature from a theological concept to a concept of secular philosophy
founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the development of
the field to an extent unequaled by any other theorist, though his reputation as the father of
international law has perhaps been exaggerated. Grotius excised theology from international law
and organized it into a comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law
of War and Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained
acceptance among the northern European powers that were embarking upon extensive missions of
exploration and colonization around the world.

The scholars who followed Grotius can be grouped into two schools, the naturalists and the
positivists. The former camp included the German jurist Samuel von Pufendorf (1632–94),
who stressed the supremacy of the law of nature. In contrast, positivist writers, such as
Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the
Netherlands, emphasized the actual practice of contemporary states over concepts derived
from biblical sources, Greek thought, or Roman law. These new writings also focused greater
attention on the law of peace and the conduct of interstate relations than on the law of war, as
the focus of international law shifted away from the conditions necessary to justify the resort
to force in order to deal with increasingly sophisticated interstate relations in areas such as
the law of the sea and commercial treaties. The positivist school made use of the new
scientific method and was in that respect consistent with the empiricist and inductive
approach to philosophy that was then gaining acceptance in Europe. Elements of both
positivism and natural law appear in the works of the German philosopher Christian Wolff
(1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to
develop an approach that avoided the extremes of each school. During the 18th century, the
naturalist school was gradually eclipsed by the positivist tradition, though, at the same time,
the concept of natural rights—which played a prominent role in the American and French
revolutions—was becoming a vital element in international politics. In international law,
however, the concept of natural rights had only marginal significance until the 20th century.
Positivism’s influence peaked during the expansionist and industrial 19th century, when the
notion of state sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and
non-intervention in the affairs of other states—ideas that had been spread throughout the
world by the European imperial powers. In the 20th century, however, positivism’s
dominance in international law was undermined by the impact of two world wars, the
resulting growth of international organizations—e.g., the League of Nations, founded in
1919, and the UN, founded in 1945—and the increasing importance of human rights. Having
become geographically international through the colonial expansion of the European powers,
international law became truly international in the first decades after World War II, when
decolonization resulted in the establishment of scores of newly independent states. The
varying political and economic interests and needs of these states, along with their diverse
cultural backgrounds, infused the hitherto European-dominated principles and practices of
international law with new influences.
The foundations of international law (or the law of nations) as it is understood today lie
firmly in the development of western culture and political organisation. Treaty of Westphalia
provides Public International Law, the structure and order, for developing it in terms of the
present-day society.
Ideas revolving around natural Law formed the basis of philosophies given by the early
theorists. Their theories and philosophies depicted the merging idea of Christian themes and
Natural Law that occurred in the philosophy of St. Thomas Aquinas.
In the middle ages, two sets of international law, namely Lex Mercatoria (Law Merchant) and
the Maritime Customary Law were developed to deal with problems that transcended
international boundaries. With the revival of trade in the 10th century, merchants started to
travel all throughout Europe in order to sell, buy and place orders for various goods. These
commercial activities required the establishment of a common legal framework.
The Evolution of Modern International Law was done by a British historical lawyer, Maine.
The evolving concepts of separate, sovereign and competing states marked the beginning of
what is understood as international law. International law became geographically
internationalised through the expansion of the European empires. It became less universal in
conception and more, theoretically as well as practically, a reflection of European values.
A Dutch Scholar Hugo Grotius, born in 1583, has been celebrated as the father of
International Law. His treatise De Jure Belli ac Pacis has been acknowledged as the most
comprehensive and systematic treatise of positivists international law. It is extensive work
and includes rather more devotion to the exposition of private law notions than what seems
appropriate today.
One central doctrine in Grotius treatise was the acceptance of the law of nature as an
independent source of the rule of law of nations apart from customs. His work was
continually relied upon as a point of reference and authority in the decisions of courts and
textbooks and later writings of standing.
The rise of international law mainly happened during the 19th Century with the rise of
powerful states surrounding Europe. With the greater technological advancement and
development of new warfare methods, it became necessary to regulate the behaviour of these
states with the help of a legal framework. The International Committee of the Red Cross was
founded in 1863 which helped to promote the series of Geneva Conventions beginning in
1864. These conventions dealt with the ‘humanisation’ of conflict.
The Hague Conferences of 1899 and 1907 helped in establishing the Permanent Court of
Arbitration which dealt with the treatment of prisoners and the control of warfare. Numerous
other conferences, conventions and congresses emphasised the expansion of the rules of
international law and the close network of international relations. Due to the above actions
the development of the law of war and international bodies that adjudicated international
disputes occurred.
The Permanent Court of International Justice was established in 1921 after World War I and
was succeeded in 1946 by the International Court of Justice. The United Nations founded the
International Court of Justice which has now expanded the scope of International Law to
include different aspects of the issues that affect a vast and complex area of international
rules such as International Crime, Environment law, Nuclear law etc.
The development of international law—both its rules and its institutions—is inevitably
shaped by international political events. From the end of World War II until the 1990s, most
events that threatened international peace and security were connected to the Cold War
between the Soviet Union and its allies and the U.S.-led Western alliance. The UN Security
Council was unable to function as intended, because resolutions proposed by one side were
likely to be vetoed by the other. The bipolar system of alliances prompted the development of
regional organizations—e.g., the Warsaw Pact organized by the Soviet Union and the North
Atlantic Treaty Organization (NATO) established by the United States—and encouraged the
proliferation of conflicts on the peripheries of the two blocs, including in Korea, Vietnam,
and Berlin. Furthermore, the development of norms for protecting human rights proceeded
unevenly, slowed by sharp ideological divisions.
The Cold War also gave rise to the coalescence of a group of nonaligned and often newly
decolonized states, the so-called “Third World,” whose support was eagerly sought by both
the United States and the Soviet Union. The developing world’s increased prominence
focused attention upon the interests of those states, particularly as they related to
decolonization, racial discrimination, and economic aid. It also fostered greater universalism
in international politics and international law. The ICJ’s statute, for example, declared that
the organization of the court must reflect the main forms of civilization and the principal
legal systems of the world. Similarly, an informal agreement among members of the UN
requires that nonpermanent seats on the Security Council be apportioned to ensure equitable
regional representation; 5 of the 10 seats have regularly gone to Africa or Asia, two to Latin
America, and the remainder to Europe or other states. Other UN organs are structured in a
similar fashion. The collapse of the Soviet Union and the end of the Cold War in the early
1990s increased political cooperation between the United States and Russia and their allies
across the Northern Hemisphere, but tensions also increased between states of the north and
those of the south, especially on issues such as trade, human rights, and the law of the sea.
Technology and globalization—the rapidly escalating growth in the international movement
in goods, services, currency, information, and persons—also became significant forces,
spurring international cooperation and somewhat reducing the ideological barriers that
divided the world, though globalization also led to increasing trade tensions between allies
such as the United States and the European Union (EU).
Since the 1980s, globalization has increased the number and sphere of influence of
international and regional organizations and required the expansion of international law to
cover the rights and obligations of these actors. Because of its complexity and the sheer
number of actors it affects, new international law is now frequently created through processes
that require near-universal consensus. In the area of the environment, for example, bilateral
negotiations have been supplemented—and in some cases replaced—by multilateral ones,
transmuting the process of individual state consent into community acceptance. Various
environmental agreements and the Law of the Sea treaty (1982) have been negotiated through
this consensus-building process. International law as a system is complex. Although in
principle it is “horizontal,” in the sense of being founded upon the concept of the equality of
states—one of the basic principles of international law—in reality some states continue to be
more important than others in creating and maintaining international law.
The foundations of international law (or the law of nations) as it is understood
today lie firmly in the development of Western culture and political
organisation. The growth of European notions of sovereignty and the
independent nation-state required an acceptable method whereby inter-state
relations could be conducted in accordance with commonly accepted
standards of behaviour, and international law filled the gap. But although the
law of nations took root and flowered with the sophistication of Renaissance
Europe, the seeds of this particular hybrid plant are of far older lineage. They
reach far back into history the eighteenth century was a ferment of intellectual
ideas and rationalist philosophies that contributed to the evolution of the
doctrine of international law. The nineteenth century by contrast was a
practical, expansionist and positivist era. The Congress of Vienna, which
marked the conclusion of the Napoleonic wars, enshrined the new
international order which was to be based upon the European balance of
power. International law became Eurocentric, the preserve of the civilised,
Christian states, into which overseas and foreign nations could enter only with
the consent of and on the conditions laid down by the Western powers.
Paradoxically, whilst international law became geographically internationalised
through the expansion of the European empires, it became less universalist in
conception and more, theoretically as well as practically, a reflection of
European values.90 This theme, the relationship between universalism and
particularism, appears time and again in international law. This century also
saw the coming to independence of Latin America and the forging of a
distinctive approach to certain elements of international law by the states of
that region, especially with regard to, for example, diplomatic asylum and the
treatment of foreign enterprises and nationals.91 There are many other
features that mark the nineteenth century. Democracy and nationalism, both
spurred on by the wars of the French revolution and empire, spread
throughout the Continent and changed the essence of international
relations.92 No longer the exclusive concern of aristocratic elites, foreign
policy characterised both the positive and the ´ negative faces of nationalism.
Self-determination emerged to threaten the multinational empires of Central
and Eastern Europe, while nationalism reached its peak in the unifications of
Germany and Italy and began to exhibit features such as expansionism and
doctrines of racial superiority. Democracy brought to the individual political
influence and a say in government. It also brought home the realities of
responsibility, for wars became the concern of all. Conscription was introduced
throughout the Continent and large national armies replaced the small
professional forces.93 The Industrial Revolution mechanised Europe, created
the economic dichotomy of capital and labour and propelled Western
influence throughout the world. All these factors created an enormous
increase in the number and variety of both public and private international
institutions, and international law grew rapidly to accommodate them.94 The
development of trade and communications necessitated greater international
co-operation as a matter of practical need. In 1815, the Final Act of the
Congress of Vienna established the principle of freedom of navigation with
regard to international waterways and set up a Central Commission of the
Rhine to regulate its use. In 1856 a commission for the Danube was created
and a number of other European rivers also became the subject of
international agreements and arrangements. In 1865 the International
Telegraphic Union was established and in 1874 the Universal Postal Union.95
European conferences proliferated and contributed greatly to the
development of rules governing the waging of war. The International
Committee of the Red Cross, founded in 1863, helped promote the series of
Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of
conflict, and the Hague Conferences of 1899 and 1907 established the
Permanent Court of Arbitration and dealt with the treatment of prisoners and
the control of warfare.96 Numerous other conferences, conventions and
congresses emphasised the expansion of the rules of international law and the
close network of international relations. In addition, the academic study of
international law within higher education developed with the appointment of
professors of the subject and the appearance of specialist textbooks
emphasising the practice of states. Positivist theories dominate this century.
The proliferation of the powers of states and the increasing sophistication of
municipal legislation gave force to the idea that laws were basically commands
issuing from a sovereign person or body. Any question of ethics or morality
was irrelevant to a discussion of the validity of man-made laws. The approach
was transferred onto the international scene and immediately came face to
face with the reality of a lack of supreme authority. Since law was ultimately
dependent upon the will of the sovereign in national systems, it seemed to
follow that international law depended upon the will of the sovereign states.
This implied a confusion of the supreme legislator within a state with the state
itself and thus positivism had to accept the metaphysical identity of the state.
The state had a life and will of its own and so was able to dominate
international law. This stress on the abstract nature of the state did not appear
in all positivist theories and was a late development.97 It was the German
thinker Hegel who first analysed and proposed the doctrine of the will of the
state. The individual was subordinate to the state, because the latter enshrined
the ‘wills’ of all citizens and had evolved into a higher will, and on the external
scene the state was sovereign and supreme.98 Such philosophies led to
disturbing results in the twentieth century and provoked a re-awakening of the
law of nature, dormant throughout the nineteenth century. The growth of
international agreements, customs and regulations induced positivist theorists
to tackle this problem of international law and the state; and as a result two
schools of thought emerged. The monists claimed that there was one
fundamental principle which underlay both national and international law. This
was variously posited as ‘right’ or social solidarity or the rule that agreements
must be carried out (pacta sunt servanda). The dualists, more numerous and in
a more truly positivist frame of mind, emphasised the element of consent. For
Triepel, another German theorist, international law and domestic (or
municipal) law existed on separate planes, the former governing international
relations, the latter relations between individuals and between the individual
and the state. International law was based upon agreements between states
(and such agreements included, according to Triepel, both treaties and
customs) and because it was dictated by the ‘common will’ of the states it
could not be unilaterally altered.99 This led to a paradox. Could this common
will bind individual states and, if so, why? It would appear to lead to the
conclusion that the will of the sovereign state could give birth to a rule over
which it had no control. The state will was not, therefore, supreme but inferior
to a collection of states’ wills. Triepel did not discuss these points, but left
them open as depending upon legal matters. Thus did positivist theories
weaken their own positivist outlook by regarding the essence of law as beyond
juridical description. The nineteenth century also saw the publication of
numerous works on international law, which emphasised state practice and
the importance of the behaviour of countries to the development of rules of
international law.100 The twentieth century The First World War marked the
close of a dynamic and optimistic century. European empires ruled the world
and European ideologies reigned supreme, but the 1914–18 Great War
undermined the foundations of European civilisation. Self-confidence faded, if
slowly, the edifice weakened and the universally accepted assumptions of
progress were increasingly doubted. Self-questioning was the order of the day
and law as well as art reflected this. The most important legacy of the 1919
Peace Treaty from the point of view of international relationswas the creation
of the League of Nations.101 The old anarchic system had failed and it was felt
that new institutions to preserve and secure peace were necessary. The
League consisted of an Assembly and an executive Council, but was crippled
from the start by the absence of the United States and the Soviet Union for
most of its life and remained a basically European organisation. While it did
have certain minor successes with regard to the maintenance of international
order, it failed when confronted with determined aggressors.
JapaninvadedChinain 1931 and two years laterwithdrewfrom the League. Italy
attacked Ethiopia, and Germany embarked unhindered upon a series of
internal and external aggressions. The Soviet Union, in a final gesture, was
expelled from the organisation in 1939 following its invasion of Finland.
Nevertheless much useful groundwork was achieved by the League in its short
existence and this helped to consolidate the United Nations later on.102 The
Permanent Court of International Justice was set up in 1921 at The Hague and
was succeeded in 1946 by the International Court of Justice.103 The
International Labour Organisation was established soon after the end of the
First World War and still exists today, and many other international institutions
were inaugurated or increased their work during this period. Other ideas of
international law that first appeared between the wars included the system of
mandates, by which colonies of the defeated powers were administered by the
Allies for the benefit of their inhabitants rather than being annexed outright,
and the attempt was made to provide a form of minority protection
guaranteed by the League. This latter creation was not a great success but it
paved the way for later concern to secure human rights.104 After the trauma
of the Second World War the League was succeeded in 1946 by the United
Nations Organisation, which tried to remedy many of the defects of its
predecessor. It established its site at New York, reflecting the realities of the
shift of power away from Europe, and determined to become a truly universal
institution. The advent of decolonisation fulfilled this expectation and the
General Assembly of the United Nations currently has 192 member states.105
Many of the trends which first came to prominence in the nineteenth century
have continued to this day. The vast increase in the number of international
agreements and customs, the strengthening of the system of arbitration and
the development of international organisations have established the essence
of international law as it exists today.

Case Relating to the Diversion of the Water From the

Meuse

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

Judgment of June 28th, 1937

PARTIES

The Netherlands- Belgium.

DOCUMENT INSTITUTING PROCEEDINGS

Application of the Netherlands' Government, filed with the Registry on August 1 st, 1936, based on

Article 36, paragraph 2 of the Statute.

AGENTS AND COUNSEL

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

COMPOSITION OF THE COURT

M. Guerrero, President;  Sir Cecil Hurst, Vice-President;  Count Rostworowski, MM. Fromageot, de

Bustamante, Altamira, Anzilotti, Negulesco, Jonkheer van Eysinga, MM. Nagaoka, Cheng, Hudson,

De Visscher, Judges.

The judgment was given by ten votes to three.

POINTS OF LAW

Interpretation of treaties (clear text; treaty as a whole, purpose, intention of the Parties, priority

of object and intent over literal meaning) -  Law applicable (lex specialis derogat generali) -

Treaties (effects, equality of the Parties; obligation to implement; control of implementation)

-General principles of law (equity;  inadimplenti non est adimplendum) -Equity - Counter-claim -

Damages - Judicial inspection.

Facts

On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of which was "to

settle permanently and definitively the regime governing diversions of water from the Meuse for

the feeding of navigation canals and irrigation channels. (1) Article I of this Treaty provided for the

construction below Maestricht, in Netherlands territory, of a new intake which would constitute

"the feeding conduit for all canals situated below that town and for irrigation in the Campine and in

the Netherlands.(2)

The Belgian Government accepted the Treaty not without reluctance, in view of the fact that it

provided for only one intake and that to be situated in foreign territory.

When the economic development of the Belgian and Netherlands provinces of Limburg

necessitated the enlargement of certain canals and the construction of new works, the two States

signed in 1925 a new agreement designed to settle the differences which had arisen in respect of

the construction programmes. After the rejection of this agreement by the Netherlands First

Chamber, the Netherlands proceeded to construct and complete the Juliana Canal, the

Bosscheveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the

Albert Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at

Neerhaeren.

As no further progress could be made in the settlement of the points at issue between the two

States, the Netherlands initiated proceedings in the Court by means of a unilateral application,

based on the declarations made by both the Netherlands and Belgium in which they accepted the

compulsory jurisdiction of the Court under Article 36 (a) of the Statute. Belgium, on its part, made

a counter-claim.

In the course of the proceedings and at the suggestion of the Belgian Agent, which the

Netherlands Agent did not oppose, the Court visited the locality in order to see on the spot the

installations, canals and waterways to which the dispute related and to witness practical

demonstrations of the operations of locks and installations connected therewith.

Submissions of the Parties

The Netherlands ask the Court in the main to adjudge and declare that the works already carried

out by Belgium were contrary to the Treaty of 1863, that the proposed works would be contrary to

it and, consequently, to "order Belgium a) to discontinue all the works" listed in the Netherlands'

submissions and "to restore to a condition consistent with the Treaty of 1863 all works constructed
in breach of that Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and

to refrain from any further such feeding. (3)

On its part, Belgium asks the Court to declare the Netherlands' submissions ill-founded, as well as

to adjudge and declare, in respect of the counter-claim, that the Borgharen barrage was

constructed in breach of the stipulations of the Treaty of 1863, that the Juliana Canal is subject to

the provisions of the Treaty and, finally, to reserve the rights accruing to Belgium from the

breaches so committed.

Summary of the Judgment

Since the questions at issue are governed by the Treaty of 1863, the Court at the outset discards

the application to the dispute of the general rules of international river law in favour of the

interpretation and application of the Treaty.

The Netherlands maintain that Article I of the Treaty, (4) which provides for a single feeder, situated

in Netherlands territory, gives them the right to supervise and control all the intakes, situated not

only in their own territory, but also in Belgian territory. This contention necessarily implies that

"the Treaty of 1863 intended to place the Parties in a situation of legal inequality by conferring on

the Nether-lands a right of control to which Belgium could not lay claim. (5) But, in order to allow

the existence of such inequality between the Parties to a treaty freely concluded, the text of the

treaty must say so in precise terms. In the absence of such terms, the Court rejects the

Netherlands' submission.

While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands do not

invoke a specific provision of the Treaty. The Court grants that the Treaty has brought into

existence a certain régime which results from all its provisions taken together and that,

accordingly, it forms a complete whole, the different provisions of which cannot be dissociated

from the others and considered in isolation. This is equally the case with Article I which must be

interpreted together with the other Articles. In the light of this Article, thus interpreted, neither the

Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply, can be accepted in

its entirety. Furthermore, the Court, after mentioning the construction by the Netherlands of the

Bosscheveld Lock, refuses to admit the Netherlands' complaint about the construction and

operation of a lock of which they themselves set an example in the past.

With regard to the supply by Belgium to a section of the Albert Canal of water taken from the

Meuse elsewhere than at Maestricht, the Court considers that the origin of the water is irrelevant.

Nothing prevents either Belgium or the Netherlands from making such use as they may see fit of

the canals covered by the Treaty, when the canals do not leave their own territory. Each of the two

States is at liberty in its own territory to modify such canals, to enlarge them, to trans-form them,

to fill them in and even to increase the volume of water in them, provided that the diversion of

water at the feeder mentioned in the Treaty and the volume of water to be discharged therefrom is
not affected. The same reasoning applies to the Netherlands' criticism of the proposed supply by

Belgium to a section of another canal of water taken from the Meuse elsewhere than at Maestricht.

Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with the Belgian

counter-claims, the first of which concerns the Borgharen barrage. The Court finds that the Treaty

does not forbid the Netherlands from altering the depth of water in the Meuse at Maestricht

without the consent of Belgium, provided that neither the discharge of water through the feeder,

nor the volume of water which it must supply, nor the current in the Zuid-Willemsvaart is thereby

affected. It is subject to this condition, and not at their arbitrary discretion, that the Netherlands

are entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht. With regard to

the alleged interference, by the criticized construction, with the navigability of that part of the

Meuse common to both States, the Court considers that Belgium has not produced any proof of it.

In reply to the second Belgian submission, which relates to the Juliana Canal, the Court finds that

the Treaty was designed to regulate the supply of water to the canals situated on the left bank of

the Meuse only. Thus, canals situated on the right bank, such as the Juliana Canal, do not come

under the regime of water supply provided for by the Treaty.

For these reasons, the Court rejects both the Netherlands' submissions and the submissions

contained in the Belgian counter-claim.