Meuse, Diversion of Water Case (Belgium v Netherlands)

Sander Meijerink

A. Facts

1. Diversion of water and cross-border impacts of Canals

The Meuse is an international river, which rises in north-eastern France, and flows through
Belgium and the Netherlands to the North Sea ( International Watercourses). Two sections
of the river form the boundary between Belgium and the Netherlands. Since the Meuse is a
rain-fed river, river discharges may vary considerably, and periodic water shortage has been
an important international issue since long. In the mid of the 19th century, various conflicts
over the distribution of Meuse water arose between Belgium and the Netherlands. These
conflicts were caused by the construction of various new  Canals for irrigating the Campine
district in Belgium, which were linked to the Zuid-Willemsvaart canal. Because the Zuid-
Willemsvaart canal is fed with Meuse river, these new Campine canals were fed with Meuse
water as well (Bouman 1996, 161). The digging of the new Campine canals affected the
Netherlands in three ways. First, the large amount of water needed for feeding the canals
caused an excessive current in the Zuid-Willemsvaart canal, which hindered navigation.
Secondly, the reduced water level in the Meuse impeded navigation on that river, and finally,
the irrigation projects within the Campine district caused flooding in some parts of the
southern Netherlands.

2. Treaty Regulating the Diversion of Water from the Meuse, 12 May 1863
Belgium and the Netherlands made various attempts to find a solution of the problem, but it
was not until 1863 that the two countries were able to settle the issue of water diversions by
concluding a  Treaty, which established the regime for taking water from the Meuse
(Belgium-Netherlands, Treaty Regulating the Diversion of Water from the Meuse, The Hague,
12 May 1863, hereafter the Treaty). Key elements of this Treaty are the construction of a new
intake near Maestricht, on Dutch territory, which would serve as the feeder for all canals
below that town, the raising of the water level in the Zuid-Willemsvaart so as to decrease the
speed of current, and the realization of some infrastructure works aimed at improving the
navigability of the joint section of the Meuse. Finally, the Treaty regulates the amount of
water to be taken at the Treaty feeder depending on both the time of the year and the water
level in the river (Robb 1999, 159).

3. Belgian-Dutch conflicts over the construction of new canals

The Treaty had been helpful in solving bilateral water conflicts for a few decades. In 1921,
however, the Dutch launched plans for the construction of a lateral canal along the Meuse on
Dutch territory, the Juliana canal, and of the Borgharen barrage. The Netherlands also
contructed a new lock, the Bossche Veld lock, just below the intake constructed at Maestricht
(the Treaty feeder), which gives access to the Zuid-Willemsvaart canal from the Meuse. In
spite of Belgian objections to these projects as they would not be in accordance with the
Treaty, the Dutch continued their project. In the meanwhile, Belgium developed plans for
improving communication between Antwerp and Liege. These plans comprised both digging
new canals and improving various existing canals. Together, these works now are known as
the Albert Canal. Relevant to our case is that some of the improved canals are situated below
Maestricht, whilst the Albert canal is feeded with water diverted from the Meuse near
Monsin, on Belgian territory. Moreover, the Albert canal was connected to the Zuid-
Willemsvaart canal through the Neerhaeren lock on Belgian territory below Maestricht (Robb
1999, 160). The Netherlands made various attempts to stop this project by means of
diplomacy, because in their opinion this project was inconsistent with the Treaty. The
Netherlands, however, did not succeed.

B. History of proceedings

1. Application of the Netherlands in the PCIJ

Because Belgium and the Netherlands were unable to settle the various disputes on the
diversion of water from the Meuse, on 1 August 1936 the Netherlands initiated proceedings
against Belgium in the  Permanent Court of International Justice (PCIJ) ( Arbitration,
International Court or Tribunal). The Netherlands claimed that the construction of various
works that enabled Belgium to feed canals which are situated below Maestricht with water
derived from the Meuse elsewhere than at the Treaty feeder, is a breach of the Treaty. The
Netherlands asked the court to decide that Belgium should stop all works related to the Albert
canal, to restore the situation before the construction of these works was commenced, and to
‘refrain in the future from any feeding contrary to the Treaty’ (Robb, 1999, 161).
2. Counter-Memorial of the Belgian government
Belgium argued 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’ (Publications of the Permanent Court of International Justice Series A/B-
No. 70, 6). Moreover, Belgium formulated a counter-claim by arguing that the construction of
the Juliana canal and the Borgharen barrage are inconsistent with the Treaty. According to
Belgium, the Juliana canal is a canal below Maestricht, and the Treaty regime, including the
provisions about water supply and the obligation to use the Treaty feeder, apply to the Juliana
canal. Finally, Belgium claimed that the Netherlands was never allowed to construct the
Borgharen barrage without Belgian consent, because this barrage has changed water levels at
the Treaty feeder.

3. The Netherlands Reply

In the Reply, the Netherlands argued that the Borgharen Barrage is not inconsistent with the
Treaty, and that ‘no right or interest on the part of Belgium is thereby injured’ (Ibid., 7). The
Netherlands also argued that the Juliana canal is situated on the right bank of the river Meuse,
and therefore the Treaty regime does not apply to that canal. The Netherlands, finally argued
that ‘the mere fact that it would be possible for the Netherlands to use certain locks on this
canal in a manner contrary to the Treaty does not in itself constitute a breach of that Treaty’
(Ibid.).

C. Findings and reasoning of the PCIJ

1. Reciprocity
By ten votes to three the Court takes the following decisions. First, in spite of some references
to general international law about rivers which were made during the proceedings, the Court
decides that the claims do not entitle it to go outside the provisions of the Treaty of 1863. The
Court rejects the principal claim of the Netherlands that the construction of a canal that would
render it possible for Belgium to feed canals situated below Maestricht with water taken from
the Meuse at another place than at the Treaty feeder, is inconsistent with the Treaty.
According to the Court the fact that the Treaty feeder is situated on Dutch territory indeed
gives the Netherlands, as  Territorial Sovereign, a right of supervision which Belgium can
not possess (Robb, 163). This is not to say, however, that this right imposes an obligation on
Belgium not to construct works which could be used to feed canals below Maestricht with
Meuse water diverted from the Meuse elsewhere than at the Treat feeder, whereas there is no
such obligation for the Netherlands. The Court is of the opinion that such a right ‘would
presumably have been granted on a reciprocal basis’ (Spiermann, 2005, 374) ( Reciprocity).
If the objective of the Treaty was to create inequality between the contracting parties, this
should have been expressed clearly in the text of the Treaty. In absence of such a provision,
both states should be treated equally, because the Treaty was ‘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’
(The Diversion of Water from the Meuse. Publications of the Permanent Court of International
Justice Series A/B- No. 70, 1925, 20)

2. The importance of an example set in the past

As regards the Dutch objections to the construction of the Neerhaeren Lock, The Court
argued that lock-water indeed is a means of feeding a canal (Robb, 163), but that the lock is
not contrary to the objections of the Treaty, i.e. it does neither create an excessive current in
the Zuid-Willems Vaart canal, nor does it hinder navigation on the Meuse. The Court,
however, used an additional argument. It stated that it cannot refrain from comparing the case
of the Neerhearen lock with that of the Netherlands lock at Bossche Veld, since both of these
locks feed a canal otherwise than through the Treaty feeder. ‘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’
(The Diversion of Water from the Meuse. Publications of the Permanent Court of International
Justice Series A/B- No. 70, 1925, 25). The Court concluded that there is no ground for
treating the Belgian lock less favourably than the Netherlands lock. Regarding the
Netherlands claim that the Albert canal, which is feeded at Liege, coincides with sections of
existing canals below Maeastricht, the Court concludes that each of the two states is free in its
own territory to enlarge canals, to transform them, to fill them, and to increase the volume of
water in them from new sources, if the water division at the Treaty feeder and the volume of
water to be discharged at the feeder, and the flow of water in the Zuid-Willemsvaart Canal is
not thereby affected (Robb, 164).

3. Decision on Belgian claims

The Court also decided on the Belgian claims. According to the Court, the construction of the
Borgharen barrage had changed the water level in the Meuse at the Treaty feeder indeed, but
the newly created situation does not affect any of the Treaty obligations. The volume of water
discharged by the feeder does not exceed the maximum fixed in the Treaty, and the current in
the Zuid-Willemsvaart is not affected. Therefore, this counter-claim is rejected. As regards the
Juliana canal, the Court argues that clearly a feeder situated on the left bank of the Meuse was
not aimed at feeding canals on the right bank of the Meuse (Robb, 165). Therefore, the
Juliana Canal does not come under the regime of the Treaty. Just like all Netherlands claims,
the Court rejects all Belgian counter-claims.

D. Assessment

The Meuse, diversion of water case, is an important example of a  Judicial Settlement of

International Disputes. Although the decisions of the Court were primarily aimed at
contributing to the solution of some of the very specific water management issues at stake
between Belgium and the Netherlands, the relevance of some legal arguments goes beyond
that single case. A first interesting element of the case is that the Court explicitly decided to
base its judgement on an interpretation of the 1863 Treaty only, and that it did not consider
‘the general rules of international law’. Spiermann (2005, p. 373) already observed that this
approach was quite different from the PCIJ- decision in the river Oder case, which was about
legal rights for navigating this river (Case relating to the Territorial Jurisdiction of the
International Commission of the River Oder, Series A No. 23, 1929) In that case, the Court
based its decision partly on the international law of coexistence.

Secondly, the case represents an application of the principle of  Reciprocity in international

law (See section C). Thirdly, the Court’s conclusion that each of the two states is free in its
own territory to enlarge canals, to transform them, to fill them, and to increase the volume of
water in them from new sources, as long as the water division at the Treaty feeder, the volume
of water to be discharged at the feeder, and the flow of water in the Zuid-Willemsvaart Canal
are not thereby affected (Robb, 164), is a Treaty interpretation which is in accordance with the
national principle of  Self-containedness (Spiermann, 2005, p. 374).

Finally, the additional argument the Court has used in its decision on the Dutch claim that the
construction of the Neerhaeren lock is contrary to the Treaty, namely that the Dutch had set an
example in the past by the construction of the Bossche Veld Lock, can be interpreted as an
application of the Principle of  Equity in International Law (Wouters, 2005, p.14-15).

SELECT BIBLIOGRAPHY
N Bouman ‘A New regime for the Meuse’(1996). Review of European Community and
international environmental law, Vol.5, Issue 2, 161-68.
CAR Robb International environmental law reports, Volume 1, Early decisions (Cambridge
university press, UK, 1999), 157-230.
O Spiermann International Legal Argument in the Permanent Court of International Justice,
The Rise of the International Judiciary. Cambridge studies in international and comparative
law. (Cambridge, England, 2005) 373-75.
J Wouters Cases van international recht (cases of international law, in Dutch) (Intersentia,
Antwerpen-Oxford, 2005) 14-15.

SELECT DOCUMENTS
Belgium-Netherlands, Treaty Regulating the Diversion of Water from the Meuse, The Hague,
12 May 1863.
The Diversion of Water from the Meuse. Publications of the Permanent Court of International
Justice Series A/B- No. 70 Collection of Judgments, Orders and Advisory Opinions. A.W.
Sijthoff’s Publishing Company, Leyden, 1925.

December 2006