Pangilinan, Vloudy Mia S.

JD-2A

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1937
The Diversion of Water from the Meuse
Netherlands v. Belgium

FACTS:
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty which
purpose was "to settle permanently and definitively the regime governing diversions
of water from the Meuse for the feeding of navigation canals and irrigation channels.
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.
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, the Netherlands proceeded to construct and complete an
additional canal, a lock and barrage at Borgharen. On its part, Belgium began the
construction of the Albert Canal, unfinished at the time of the judgment, a barrage and
a lock. As no progress could be made in the settlement of the issue between the two
States, the Netherlands initiated proceedings in the Court. The Netherlands asked the
Court to declare that the works already carried out by Belgium were contrary to the
Treaty of 1863. Belgium, on the other hand, asked the Court to declare that the
Borgharen barrage was constructed in breach of the Treaty of 1863.

ISSUES:
1. Whether or not the works carried out by Belgium were contrary to the Treaty
of 1863.
2. Whether or not the Borgharen barrage constructed by Netherlands was done
in breach of the Treaty of 1863.
RULING:
No, the Court rejected both the Netherlands’ submissions and the submissions
contained in the Belgian counter-claim.

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 nonperformance 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 AngloAmerican 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.”

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.”

Judge Hudson justified his use of equity thus: 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 aequo et bono, if the parties
agree thereto.” [Citations omitted.] 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.