COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DE L’ANGLO-IRANIAN OIL Co.

(ROYAUME-UNI c. IRAN)
ORDONNANCE DU 11 FEVRIER 1952

1952

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

ANGLO-IRANIAN
OIL Co. CASE

(UNITED KINGDOM wv. IRAN)
ORDER OF FEBRUARY 1ith, 1952
La présente ordonnance doit étre citée comme suit :

«Affaire de l’Anglo-Iranian Oil Co., Ordonnance du
II février 1952: C.I. J. Recueil 1952, D. 13.»

This Order should be cited as follows :

“Anglo-Ivanian Oil Co. Case, Order of February arth, 1952:
I. C. J. Reports 1952, p. 13.”

Ne de vente: 80
Sales number

11 FEVRIER 1952

ORDONNANCE

AFFAIRE DE L’ANGLO-IRANIAN OIL Co.
(ROYAUME-UNI c. IRAN)

ANGLO-IRANIAN OIL Co. CASE
(UNITED KINGDOM v. IRAN)

FEBRUARY rith, 1952

ORDER
13

INTERNATIONAL COURT OF JUSTICE

1952
February 11th

YEAR 19 52 General List:

No. 16

February 1ith, 1952

ANGLO-IRANIAN
OIL Co. CASE

(UNITED KINGDOM v. IRAN)

ORDER

The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Article 62 of the Rules of Court,

having regard to the Application dated May 26th, 1951, whereby
the United Kingdom of Great Britain and Northern Ireland insti-
tuted proceedings against the Empire of Iran concerning the Anglo-
Iranian Oil Company,

having regard to Orders made on July 5th, August 22nd and
December 20th, 1951, fixing and extending the time-limits for the
deposit of the Memorial and the Counter-Memorial in this case and
reserving the rest of the proceedings ;

Whereas, within the time-limit fixed for the deposit of the
Counter-Memorial, the Imperial Government of Iran has filed a
document entitled “Preliminary Observations: refusal by the
Imperial Government to recognize the jurisdiction of the Court” ;

Whereas, accordingly, under Article 62, paragraph 3, of the Rules
of Court, the proceedings on the merits are suspended, and the said

4

ORDER OF II II 52 (ANGLO-IRANIAN OIL Co.) 14

Article fixes the procedure to be followed in dealing with the
Preliminary Objection so raised ;

Whereas, notwithstanding that the Agent of the United Kingdom
Government appears to have indicated in advance in his Memorial
that, in the circumstances which have just occurred, he would be
satisfied to reply orally to an objection to jurisdiction, this indica-
tion does not seem sufficient to authorize the President of the Court
to depart from the procedure laid down in Article 62, paragraph 3,
of the Rules ;

Fixes March 27th, 1952, as the time-limit within which the
Government of the United Kingdom of Great Britain and Northern
Ireland may present the written statement of their observations and
submissions in regard to the Preliminary Objection lodged by the
Imperial Government of Iran.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this eleventh day of February, one
thousand nine hundred and fifty-two, in three copies, of which one
will be placed in the archives of the Court and the others will be
transmitted to the Government of the United Kingdom of Great
Britain and Northern Ireland and to the Imperial Government of
Tran, respectively.

(Signed) BASDEVANT,
President.

(Signed) E. HAMBRO,
Registrar.


513

          DISSENTING OPINION OF JUDGE CRAWFORD

   Jurisdiction of the Court under Article 36 (2) of Statute — Existence of a
dispute — Awareness or objective awareness not a legal requirement — No prior
negotiations or notice necessary before seising the Court — Dispute in principle to
exist at the time of Application — Flexible approach — Finding of dispute may be
based on post-Application conduct or evidence — Mavrommatis principle —
Existence of multilateral dispute — Existence of dispute between Marshall Islands
and India.

  Monetary Gold objection — Issue for the merits.

                               I. Introduction

   1. This is the ﬁrst time that the International Court of Justice (or its
predecessor) has rejected a case outright on the ground that there was no
dispute at the time the Application was lodged. In determining whether
there was then a dispute, the Judgment imposes a new requirement
of “objective awareness”, which I shall use as a shorthand for the rather
awkward phrase “aware, or could not have been unaware” (Judgment,
para. 38). But a requirement of objective awareness is not to be found
in the case law of the Court. The established test for a dispute does not
require a high formal threshold to be met, nor an analysis of that indeﬁ-
nite object, the state of mind of a State. It simply requires, as the
Permanent Court put it early on, a “conﬂict of legal views or of interests”
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11). A more recent formulation is that one party’s
claim must be “positively opposed by the other” (South West Africa,
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328; see Judgment, para. 34).

  2. In this opinion, I ﬁrst discuss the case law on the meaning of “dis-
pute” within Article 36 (2) of the Court’s Statute. The key point is that
the test for a dispute has always been a minimum one, not a demanding
threshold. The Court has been ﬂexible about the ways in which it can be
satisﬁed, and has referred to post-application conduct for various pur-
poses of jurisdiction and admissibility. In the case of what I will term a
“multilateral dispute”, such ﬂexibility is particularly called for. I will then

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explain why, applying this test, a dispute existed here between the Mar-
shall Islands and India at the time the Application was lodged.

 II. The Threshold for a “Dispute” and the Objective Awareness
                          Requirement

   3. The case law of the Court and its predecessor clearly shows that the
threshold for establishing a dispute is a low one. In Certain German Inter-
ests in Polish Upper Silesia, the Permanent Court held that “a diﬀerence
of opinion does exist as soon as one of the Governments concerned
points out that the attitude adopted by the other conﬂicts with its own
views . . . this condition could at any time be fulﬁlled by means of unilat-
eral action on the part of the applicant Party” (Certain German Interests
in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J.,
Series A, No. 6, p. 14). Similarly, in the Factory at Chorzów case, the
Court stated

      “that it cannot require that the dispute should have manifested itself
      in a formal way; according to the Court’s view, it should be suﬃcient
      if the two Governments have in fact shown themselves as holding
      opposite views in regard to the meaning or scope of a judgment of
      the Court” (Interpretation of Judgments Nos. 7 and 8 (Factory
      at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11).
In East Timor, this Court reasoned simply, “Portugal has, rightly or
wrongly, formulated complaints of fact and law against Australia which
the latter has denied. By virtue of this denial, there is a legal dispute.”
(East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995,
p. 100.) In none of these cases was there any analysis of whether the
respondent was aware of the applicant’s claim before it was ﬁled. The
rationale behind requiring a legal dispute is to ensure that the Court has
something to determine: it protects the Court’s judicial function which, in
a contentious case, is to determine such disputes.

  4. The Court now adopts a requirement of objective awareness, but for
no persuasive reason. It relies heavily on a judgment which had not been
delivered at the time of oral argument in this case: Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment of 17 March 2016. But that
decision is not authority for the objective awareness requirement: the
Court simply observed that, as a matter of fact, Colombia knew of the
existence of the dispute. It said:

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515      nuclear arms and disarmament (diss. op. crawford)

         “The Court notes that, although Nicaragua did not send its formal
      diplomatic Note to Colombia in protest at the latter’s alleged viola-
      tions of its maritime rights at sea until 13 September 2014, almost ten
      months after the ﬁling of the Application, in the speciﬁc circumstances
      of the present case, the evidence clearly indicates that, at the time
      when the Application was ﬁled, Colombia was aware that its enact-
      ment of Decree 1946 and its conduct in the maritime areas declared
      by the 2012 Judgment to belong to Nicaragua were positively opposed
      by Nicaragua. Given the public statements made by the highest
      representatives of the Parties . . . Colombia could not have misunder-
      stood the position of Nicaragua over such diﬀerences.” (Prelimi-
      nary Objections, Judgment, I.C.J. Reports 2016 (I), pp. 32-33,
      para. 73.)

   5. At no point did the Court say that awareness was a legal require-
ment. Rather it repeated that it must objectively determine whether there
is a dispute based on “an examination of the facts. The matter is one of
substance, not of form” (ibid., p. 27, para. 50). It is instructive to compare
this short statement of law on the requirement of a dispute with the
lengthy statement in the present case (Judgment, paras. 33-40), which
eﬀectively transforms a non-formalistic requirement into a formalistic
one through the use of the term “awareness”.

   6. While the term “awareness” has sometimes been used in other cases
in deciding whether there was a dispute, it has never been stated as a legal
requirement, only as a description of the factual situation (see, e.g., Appli-
cation of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2011 (I), pp. 109-110, para. 87; Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 253, para. 30). Awareness is relevant as
a matter of fact in determining whether a dispute exists. But that does not
mean that it is a necessary legal component without which a dispute can-
not exist.

III. The Court’s Flexible Approach to the “Dispute” Requirement:
                           in Principle

   7. In its earlier case law, the Court has shown ﬂexibility in deciding on
the existence and scope of a dispute. Mavrommatis marks the beginning
of this tradition, holding that “[t]he Court, whose jurisdiction is interna-
tional, is not bound to attach to matters of form the same degree of
importance which they might possess in municipal law” (Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,

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516       nuclear arms and disarmament (diss. op. crawford)

p. 34). I pause to note that this generalized reference to municipal law is
hardly accurate today. While approaches to civil jurisdiction and civil
process of course vary, they are undoubtedly less formalistic than they
were 90 years ago 1. But the Court appears to be proceeding in the oppo-
site direction.

  8. The ﬂexibility principle was best expressed in its modern form in
Croatia v. Serbia:
        “However, it is to be recalled that the Court, like its predecessor,
      has also shown realism and ﬂexibility in certain situations in which
      the conditions governing the Court’s jurisdiction were not fully satis-
      ﬁed when proceedings were initiated but were subsequently satisﬁed,
      before the Court ruled on its jurisdiction.” (Application of the Con-
      vention on the Prevention and Punishment of the Crime of Genocide
      (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
      2008, p. 438, para. 81, hereinafter “Croatia v. Serbia”.)
This has led the Court to adopt a broad discretion, applied in Mavrom-
matis Palestine Concessions and in many cases since, which allows it to
overlook defects in the Application when to insist on them would lead to
circularity of procedure. This was formulated in Croatia v. Serbia in the
following terms:
         “What matters is that, at the latest by the date when the Court
      decides on its jurisdiction, the applicant must be entitled, if it so
      wishes, to bring fresh proceedings in which the initially unmet condi-
      tion would be fulﬁlled. In such a situation, it is not in the interests of
      the sound administration of justice to compel the applicant to begin
      the proceedings anew — or to initiate fresh proceedings — and it
      is preferable, except in special circumstances, to conclude that the
      condition has, from that point on, been fulﬁlled.” (Ibid., p. 441,
      para. 85.)
   9. Accordingly, the Court applied the Mavrommatis principle (as I will
call it) and decided to proceed to the merits, even though the Respondent,
Serbia, was not a member of the United Nations, and thus Article 35 (1)
of the Court’s Statute was not satisﬁed at the time Croatia ﬁled its Appli-
cation. This condition was subsequently met by Serbia’s admission to the
United Nations. The decision is all the more remarkable in that it applies
the Mavrommatis principle to a situation where, because of a subsequent
Serbian reservation to Article IX of the Genocide Convention, it was
likely no longer open to the applicant State to recommence proceedings.
It was enough that, at some time in the interim, the applicant could have
re-ﬁled its application (see the separate opinion of Judge Abraham, ibid.,
pp. 539-542, paras. 49-55). Evidently the decision puts the emphasis on

  1 See, e.g., J. A. Jolowicz, On Civil Procedure (Cambridge University Press, 2000), esp.

Chaps. 2, 17.

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517     nuclear arms and disarmament (diss. op. crawford)

the “sound administration of justice”, prioritizing substance over form
(Croatia v. Serbia, I.C.J. Reports 2008, p. 442, para. 87).

   10. The Court in the present case discards this tradition of ﬂexibility.
As well as insisting on a stringent requirement of “awareness”, it departs
from past holdings that “the Court must in principle decide the question
of jurisdiction on the basis of the conditions that existed at the time of the
institution of the proceedings” (ibid., p. 438, para. 80 (emphasis added);
see also Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Prelimi-
nary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26);
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30). The words
“in principle” allow for some nuance in the application of the rule. By
contrast, the approach of the majority would give no meaning to them.
   11. None of the cases dealing with the question of a dispute has treated
the date of the application as fatal. Rather, the Court has relaxed the
rule, referring to evidence before the date of the application and to the
position of the parties during the proceedings without distinction, or rely-
ing only on the position of the parties during the proceedings, even
though pre-application evidence was available (see East Timor (Portu-
gal v. Australia), Judgment, I.C.J. Reports 1995, p. 99, para. 22; Certain
Property (Liechtenstein v. Germany), Preliminary Objections, Judgment,
I.C.J. Reports 2005, p. 19, para. 25). While the Court here rejects the
Marshall Islands’ reliance on Certain Property with the explanation that
the “dispute was clearly referenced by bilateral exchanges between the
parties prior to the date of the application” (Judgment, para. 50), the
Court in that case was clear that the conclusion that there was a dispute
was reached solely on the basis of the statements made “in the present
proceedings”, and that the position of Germany in a letter and in bilateral
consultations was only of “evidentiary value in support of the proposition
that Liechtenstein’s claims were positively opposed by Germany and that
this was recognized by the latter” (Certain Property (Liechtenstein v. Ger-
many), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 19,
para. 25; emphasis added). In Land and Maritime Boundary between Cam-
eroon and Nigeria, the Court held there was a broader dispute between the
parties by reference to Nigeria’s equivocation with respect to the Camer-
oonian claim (pre- and post-application) and in particular its answer to a
question asked by a judge at the oral hearing (Preliminary Objections,
Judgment, I.C.J Reports 1998, pp. 316-317, paras. 91, 93). The Judgment
here also fails to explain its departure from Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia). While the Court in that case was focused on
whether the dispute fell within the scope of the compromissory clause, it
could not get to this question before ﬁrst determining that there was such

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518       nuclear arms and disarmament (diss. op. crawford)

a dispute, which it did so solely on the basis of post-application conduct:
“by reason of the rejection by Yugoslavia of the complaints formulated
against it by Bosnia and Herzegovina, ‘there is a legal dispute’ between
them” (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
pp. 614-615, paras. 28-29; see Judgment, para. 50).

   12. Commentators on the Statute endorse the ﬂexible view. According
to Rosenne, the Court’s jurisdiction must normally be assessed as at the
date of the ﬁling of the Application instituting the proceedings, but he
and Kolb both agree that the Mavrommatis principle applies to the ques-
tion whether a dispute exists as at the critical date.
         “The Court will not allow itself to be hampered by a mere defect
      of form the removal of which depends solely on the party concerned,
      for example where proceedings are instituted shortly before the entry
      into force of the title of jurisdiction for the parties concerned, so that
      a new application in identical terms could be ﬁled after the relevant
      date had come.” (Shabtai Rosenne, The Law and Practice of the Inter-
      national Court: 1920-2005, (4th ed., 2006), pp. 510-511.)
Similarly, Kolb says:
      “before the parties seise the Court, there must at least be the begin-
      nings of a dispute. The deﬁnitive dispute can, however, crystallise
      later, in the course of the proceedings. And it can equally well be
      modiﬁed or evolve as the case progresses

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         It is certainly right to say that the institution of proceedings
      does not automatically create a dispute. If it did, the distinct require-
      ment that a dispute exists would be devoid of all justiﬁcation and
      value
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         [T]he Mavrommatis principle discussed above also applies . . . It
      remains necessary to consider whether the conditions for bringing a
      case are satisﬁed at the moment the case is brought to the Court,
      although ‘it would always have been possible for the applicant to
      re-submit his application in the same terms after.’. . . It is however,
      unnecessary to oblige the claimant to start again the case by a new
      application, for want of a dispute at the initial critical date. This
      would be an excessively formalistic exercise, with no signiﬁcant eﬀects
      except to increase the administrative burden on the Court and the
      parties.” (Robert Kolb, The International Court of Justice (2013),
      p. 315.)

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519     nuclear arms and disarmament (diss. op. crawford)

   13. Since 1922, there have been three occasions on which the absence
of a dispute has resulted in the Court or its predecessor determining that
it could not hear part of a claim. In each, there had been prior correspon-
dence or statements but the applicant later sought to add other issues or
claims. In such a case, it was open for the Court to focus on what the
parties had previously treated as the gist of the dispute. The absence of
any discussion of the additional claim, in a context in which the parties
were conducting bilateral discussions on a closely related matter, showed
that there was in truth no dispute over the additional claim.

   14. In Electricity Company of Sofia, the Permanent Court considered
that the claim by Belgium against a Bulgarian tax was inadmissible (Elec-
tricity Company of Sofia and Bulgaria [Belgium v. Bulgaria], Preliminary
Objection, 1939, P.C.I.J., Series A/B, No. 77, p. 83). In that case, there
had been a letter sent by Belgium to Bulgaria on 24 June 1937 clearly
notifying it of the other matters that were ultimately brought to the Court
but ignoring the tax claim. In that context, it was open to the Court to
determine that there was no dispute on the additional issue.

   15. In Belgium v. Senegal, the Court determined that there was no dis-
pute as to whether Senegal had breached a customary international law
obligation to bring criminal proceedings against Mr. Habré for crimes of
humanity allegedly committed by him, including torture, war crimes and
genocide. The Court concluded that “[i]n the light of the diplomatic
exchanges between the Parties . . . the Court considers that such a dispute
did not exist on that date”. (Questions relating to the Obligation to Prose-
cute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II),
p. 444, para. 54.) In particular, it noted that those exchanges did not refer
to any customary international law obligation, but only to the treaty
obligation under the Convention against Torture. Moreover, in a Note Ver-
bale sent two months before ﬁling its Application, Belgium did not mention
any customary international law obligation, even though the Note Verbale
otherwise set out clearly the dispute between the parties “regarding the
application and interpretation of the obligations resulting from the rele-
vant provisions of the [Convention against Torture]” (ibid., p. 445,
para. 54). Belgium had thus used the diplomatic channel to deﬁne the
subject-matter and scope of its dispute with Senegal. In this context, it was
open for the Court to infer that there was no dispute on the additional
issue. Moreover, there was no need for the Court to apply a ﬂexible
approach, since it had already determined that it had jurisdiction over the
treaty dispute as to the obligation to charge or extradite Mr. Habré, a
matter closely related to the alleged customary international law
obligation.

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520      nuclear arms and disarmament (diss. op. crawford)

   16. More recently, in Alleged Violations of Sovereign Rights and Mari-
time Spaces in the Caribbean Sea, the Court held that there was no dis-
pute over Nicaragua’s claim that Colombia had violated Article 2 (4) of
the United Nations Charter and the customary international law obliga-
tion prohibiting the use or threat of use of force. The Court there had
relied on statements made by the highest representatives of the parties to
support its conclusion that a closely related dispute existed over Colom-
bia’s alleged breaches of Nicaragua’s maritime rights (Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicara-
gua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016
(I), pp. 31-33, paras. 69, 73). As to the use of force, the Court stressed
that Nicaraguan oﬃcials had expressly said that there was no issue, stat-
ing just eight days before the application was ﬁled that the two countries
“have not had any conﬂicts in those waters” (ibid., p. 33, para. 76). Tak-
ing into account the conduct of the parties, it was open for the Court to
conclude that no such dispute existed. As in Belgium v. Senegal, the Court
may also have been inﬂuenced by the fact that the substance of the dis-
pute as to the maritime rights of Nicaragua in the Caribbean Sea would
be dealt with, so that it was not necessary to apply the Mavrommatis
principle to ﬁnd that a dispute had subsequently come into existence.

   17. Moreover, as the Court says here (but does not seem to apply),
there is no requirement for formal notiﬁcation. This was conﬁrmed by the
Court in Alleged Violations of Sovereign Rights and Maritime Spaces in
the Caribbean Sea, where it rejected Colombia’s argument based on the
failure of Nicaragua to notify it through diplomatic channels (Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2016 (I), p. 32, para. 72).
   18. The Court here relies on the series of cases discussed above to bol-
ster its conclusion and also relies on Georgia v. Russian Federation.
Although this case is in line with the recent rise of formalism, it cannot be
seen in the same terms as the Optional Clause cases. It involved a set of
speciﬁc issues in relation to the Convention for the Elimination of Racial
Discrimination (CERD), notably its compromissory clause, Article 22,
which provides:

         “Any dispute between two or more States parties with respect to
      the interpretation or application of this Convention, which is not set-
      tled by negotiation or by the procedures expressly provided for in this
      Convention, shall, at the request of any of the parties to the dispute,
      be referred to the International Court of Justice for decision, unless
      the disputants agree to another mode of settlement.”

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521      nuclear arms and disarmament (diss. op. crawford)

That clause stipulates a requirement of prior negotiation and/or other
procedures (including arbitration) before the “dispute” can be submitted
to the Court. Evidently the dispute must have existed, and have been the
subject of negotiation, before that time. Moreover, in Georgia v. Russian
Federation there could be no doubt that a long-standing dispute existed
between the parties. Rather, the doubt was whether that dispute really
concerned racial discrimination, however broadly deﬁned, or whether
Article 22 was being used as a device to bring a wider set of issues before
the Court.

                       IV. Multilateral Disputes

  19. In the present case, the Marshall Islands does not suggest that
there were any of the normal indicators of a bilateral dispute, most obvi-
ously because there had not been any correspondence between the States
or any bilateral discussion on the subject. Rather it argues that a dispute
had arisen through statements made in multilateral fora.

  20. South West Africa (preliminary objections) is crucial in this regard.
There, the Court held that:
      “diplomacy by conference or parliamentary diplomacy has come to
      be recognized in the past four or ﬁve decades as one of the established
      modes of international negotiation. In cases where the disputed ques-
      tions are of common interest to a group of States on one side or the
      other in an organized body, parliamentary or conference diplomacy
      has often been found to be the most practical form of negotiation.
      The number of parties to one side or the other of a dispute is of no
      importance; it depends upon the nature of the question at issue. If it
      is one of mutual interest to many States, whether in an organized
      body or not, there is no reason why each of them should go through
      the formality and pretence of direct negotiation with the common
      adversary State after they have already fully participated in the col-
      lective negotiations with the same State in opposition.” (South West
      Africa, (Ethiopia v. South Africa; Liberia v. South Africa), Prelimi-
      nary Objections, Judgment, I.C.J. Reports 1962, p. 346.)

That case involved a requirement for prior negotiation in the relevant
compromissory clause. But the passage cited is also authority for the
broader point that disputes can crystallize in multilateral fora involving a
plurality of States. The Court in 1962 was sharply divided between those
holding that a dispute in a multilateral framework is simply an aggregate
of disputes, each to be assessed in its own right, and a broader view that
some disputes can be genuinely multilateral. In the present Judgment, the

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522        nuclear arms and disarmament (diss. op. crawford)

Court does not deny that a dispute between two States may be demon-
strated by multilateral exchanges, but it states that they must demonstrate
that the claim of one party is opposed by the other (Judgment, paras. 36,
45). No doubt any multilateral dispute must ultimately be ﬁtted within
the bilateral mode of dispute settlement. But this does not require
the Court to treat the underlying relations as bilateral ab initio.

   21. It is now established — contrary to the inferences commonly drawn
from the merits phase of South West Africa — that States can be parties
to disputes about obligations in the performance of which they have no
speciﬁc material interests. This much is clear from Article 48 of the Inter-
national Law Commission’s Articles on the Responsibility of States for
Internationally Wrongful Acts (ILC Articles). It is the case here, notwith-
standing the Marshall Islands’ historic connection as the location of
nuclear weapons testing by the United States, and the resulting concerns
of its Government and people about nuclear issues. The importance of
the South West Africa cases lies in the recognition that a multilateral dis-
agreement can crystallize for adjacent purposes as a series of individual
disputes coming within the Statute.

  22. Finally, I should say a word about Article 43 of the ILC Articles,
on which the Respondent relied. It is true, as the Court notes (Judgment,
para. 42) and as the ILC’s Commentary conﬁrms, that Article 43 does not
address the jurisdiction of courts or the admissibility of disputes. It none-
theless deals with an analogical question: notice in relation to a claim of
responsibility of a State. But, as the Marshall Islands argued, there is
nothing in the Commentary that prevents such notice being given by ﬁl-
ing an application. Article 43 is not a pre-notiﬁcation requirement, it is a
notiﬁcation requirement.

   23. The ILC Commentary relies in part on Certain Phosphate Lands to
support the idea that there is ﬂexibility in how notiﬁcation may occur
(Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, I.C.J. Reports 1992, p. 240). According to para-
graph (4) of the Commentary on Article 43, “it is not the function of the
articles to specify in detail the form which an invocation of responsibility
should take” 2. Nothing in Certain Phosphate Lands supports the proposi-
tion that a dispute must be notiﬁed (or that the respondent must be objec-
tively aware of it) before it can be said to exist. Australia did not contest
that the dispute existed, rather it queried whether the dispute had been
submitted within a reasonable time, and sought to infer that Nauru’s
rehabilitation claim had been waived. In that context, it was relevant that

  2   The ILC rejected the Special Rapporteur’s proposal that notiﬁcation be in writing.

271

523     nuclear arms and disarmament (diss. op. crawford)

Nauru had taken steps (limited and informal) to bring the matter again to
Australia’s attention.

                          V. The Present Case

  24. Turning to the present case, I share the Court’s view that a dispute
cannot be created simply by the ﬁling of an application (see Judgment,
paras. 40, 50) because otherwise the requirement that a dispute exist
would be completely nulliﬁed. Rather, the question is whether enough of
the dispute was in existence prior to the Application here and whether the
Court has enough ﬂexibility to recognize it as a dispute.

   25. To put it at its lowest, there was an incipient dispute between the
Marshall Islands and the nuclear-weapon States at the time of Nayarit.
This was not an accidental development, but the expression of a real
underlying disagreement of a legal character as to the trajectory of Arti-
cle VI and a corresponding legal obligation at customary international
law (if one exists). The Marshall Islands is a very small State, with com-
pelling individual interests vis-à-vis several of the nuclear-weapon States.
But by the time of Nayarit, by stages, tentatively, but in time, the Mar-
shall Islands had associated itself with one side of that multilateral dis-
agreement, revealing suﬃciently for present purposes a claim in positive
opposition to the conduct and claims of the nuclear-weapons States,
including the respondent State.

   26. The Court here says the Nayarit statement was insuﬃcient because
(i) it did not name the opposing States, (ii) it did not specify the conduct
that had given rise to the alleged breach by the Respondent, and (iii) it
was delivered in a context not strictly relating to nuclear disarmament,
since the title of the Conference was the “Humanitarian Impact of
Nuclear Weapons”, such that nothing can be inferred from the lack of
reply by India (Judgment, paras. 45, 47, 52). These arguments impose too
high a threshold for determining the existence of a dispute. There is no
doubt that India is one of the “States possessing nuclear weapons”: India
publicly acknowledges that it has such weapons. Moreover, in a context
in which the very scope of Article VI of the NPT and a corresponding
customary international law obligation is the subject-matter of a disagree-
ment articulated by a group of States, the Marshall Islands should not be
required at this stage to particularize further the speciﬁc steps India
should take or have taken. Finally, the Conference title itself included the
words “Nuclear Weapons”; and one of its purposes was to discuss nuclear
disarmament in order to prevent the devastating humanitarian impacts
that nuclear weapons could cause. This is an appropriate multilateral

272

524      nuclear arms and disarmament (diss. op. crawford)

context, and it does not dilute the force of what the Marshall Islands said,
which was not limited to a single forgettable sentence:

         “As stated by representatives of our Government during the
      High-Level Meeting on Nuclear Disarmament, the United Nations
      must stop the spread of nuclear weapons, while securing peace in a
      world without nuclear weapons. We urgently renew our call to all
      States possessing nuclear weapons to intensify eﬀorts to address their
      responsibilities in moving towards an eﬀective and secure disarma-
      ment.
         It has been almost 68 years since the General Assembly in its very
      ﬁrst resolution established a mechanism for the elimination from
      national arsenals of nuclear weapons and other weapons adaptable
      to mass destruction. It has been more than 45 years since the conclu-
      sion of the Treaty on Non-Proliferation of Nuclear Weapons.
      Yet today, we still fear the day where we are forced to relive the
      horrors. We do not want other people to suﬀer the same consequences
      we did!

         Mr. Chairman, the Marshall Islands is convinced that multilateral
      negotiations on achieving and sustaining a world free of nuclear
      weapons are long overdue. Indeed we believe that States possessing
      nuclear arsenals are failing to fulﬁl their legal obligations in this
      regard. Immediate commencement and conclusion of such negotia-
      tions is required by legal obligation of nuclear disarmament resting
      upon each and every State under Article VI of the Non Proliferation
      Treaty and customary international law. It also would achieve the
      objective of nuclear disarmament long and consistently set by the
      United Nations, and fulﬁl our responsibilities to present and future
      generations while honouring the past ones.”

   27. It is not necessary — and indeed would be inappropriate at this
stage — to go into the substance of the conﬂict over Article VI of the
NPT. However, the fact of that conﬂict is public knowledge, to which the
Court need not be blind. Thus, for instance, the “New Agenda” Coali-
tion, which currently comprises Brazil, Egypt, Ireland, Mexico, New Zea-
land and South Africa, has, at least since 2013, condemned the failure by
all State parties, particularly the nuclear-weapon States, to comply with
the obligation to pursue in good faith and bring to a conclusion negotia-
tions leading to nuclear disarmament in all its aspects under strict and
eﬀective international control. A 2014 Working Paper stated that it was
“not acceptable” that the nuclear-weapon States

      “have refused to engage in or support meaningful discussions about

273

525      nuclear arms and disarmament (diss. op. crawford)

      the humanitarian impact of nuclear weapons, the follow-up process
      to the High-Level Meeting of the General Assembly on Nuclear Dis-
      armament, or the Open-Ended Working Group on taking forward
      nuclear disarmament negotiations” 3.

The statement of the Marshall Islands should be viewed in the context of
this broader multilateral disagreement.
  28. For these reasons, in my view there was, as at the date of the Appli-
cation in the present case, a dispute between the Marshall Islands and the
respondent State as to the latter’s compliance with Article VI of the NPT.
That being so, it is unnecessary to consider whether any deﬁciency in that
regard can and should be remedied in the exercise of the Mavrommatis
discretion, recognized in Croatia v. Serbia.

                    VI. The MONETARY GOLD Principle

   29. Finally, I should say something about what was perhaps the most
plausible of the other objections to jurisdiction and admissibility made by
the Respondent. This is the proposition that the Court lacks competence
in a contentious case between State A and State B to determine that an
extant third State, State C, is in breach of its legal obligations; if the case
cannot be decided in consequence, because State C has not consented to
jurisdiction, State A’s claim is inadmissible. That proposition, originating
in Monetary Gold, is now well-established (Monetary Gold Removed from
Rome in 1943 (Italy v. France; United Kingdom and United States of
America), Preliminary Question, I.C.J. Reports 1954, p. 32; see also: Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1984, p. 431, para. 88; Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras), Application for Permission to Intervene,
Judgment, I.C.J. Reports 1990, pp. 114-116, paras. 54-56; Certain Phos-
phate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judg-
ment, I.C.J. Reports 1992, pp. 259-262, paras. 50-55; East Timor
(Portugal v. Australia) Judgment, I.C.J. Reports 1995, pp. 104-105,
paras. 34-35). The case law has however set ﬁrm limits to the Mon-
etary Gold principle. It applies only where a determination of the legal
position of a third State is a necessary prerequisite to the determination
of the case before the Court (see: Application of the Convention on the

   3 Preparatory Committee for the 2015 Review Conference of the Parties to the Treaty

on the Non-Proliferation of Nuclear Weapons, 2 April 2014, available at: http://www.
reachingcriticalwill.org/images/documents/Disarmament-fora/npt/prepcom14/documents/
WP18.pdf, last visited, 14 September 2016.

274

526     nuclear arms and disarmament (diss. op. crawford)

Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015 (I), pp. 57-58, para. 116). An inference or
implication as to the legal position of that third State is not enough: its
position is protected by Article 59 of the Statute (Certain Phosphate Lands
in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 260-262, paras. 54-55).

   30. The Monetary Gold ground of inadmissibility is particularly sensi-
tive to the precise basis of the Applicant’s claim. The decision of a given
case may or may not rest on a prior determination of the legal position of
a third State depending on how the case is put. In the present case, Mon-
etary Gold may well impose limits on the consequences that can be drawn
from the Respondent’s conduct, if indeed it is held to involve a breach of
international law. But precisely what those limits are will depend on the
ground of decision. It is true, for example, that the Court cannot order
third States to enter into negotiations, and that one cannot negotiate
alone. But a third State could breach an obligation to negotiate by its
own conduct and the Court could determine as much. Everything depends
on what the precise scope and application of Article VI of the NPT, or
any parallel customary international law obligation, entail. This is at the
heart of the dispute in the present case. But these are all issues for the
merits.

                                           (Signed) James Crawford.

275


233

DISSENTING OPINION OF JUDGE ARMAND-UGON
[Translation ]

I very much regret that, for the reasons set out below, I am
unable to concur in the Judgment of the Court.

Enclaved within the territory of the commune of Baarle-Nassau
(Netherlands), which extends over more than 4,000 hectares, is the
commune of Baerle-Duc (Belgium), of an area of 200 hectares.
In Section A, known as Zondereygen, of the commune of Baarle-
Nassau, two plots shown in the survey and known, from 1836 to
1843, as numbers gt and 02, are the subject of the present dispute
and the Parties ask the Court to decide to which of the two this
territory, of 14.378 hectares, belongs.

*
* *

The Belgian Government bases its claims to sovereignty in
respect of these plots on the express provisions of the minute re-
produced in Article 90 of the Descriptive Minute of the Convention
of 1843. This minute was drawn up in Dutch; the part relating to
the plots is in the following terms:

“The plots numbered 91 and 92 belong to the commune of
Baerle-Duc” (De parceelen nummer 91 en 92 behoren tot de gemeente
Baerle-Heriog).

The Dutch Government relies on two main propositions in assert-
ing its sovereignty: the staius quo laid down by the Treaty of
1842 and by the Convention of 1843, and, after that date, effective,
notorious and peaceful, possession of the plots. The Communal
Minute of 1836-1841, of the commune of Baarle-Nassau, shows the
two plots as belonging to that commune. Its text, which is in Dutch,
is to the following effect:

“Section A, known as Zondereygen:

The plots numbers 78-111 inclusive belong to the Commune of
Baarle Nassau”’ (De parceelen van en met nummer 78 tot en met no. ITI
behooren tot de Gemeente Baarle Nassau).

* * *

The Court has to decide which of these two texts is that of the
Convention of 1843.

The first text indicated by the Belgian Government would attri-
bute—wrongly, according to the Dutch Government—the plots to
Belgium. This text appearing in a certain minute inserted in the
Descriptive Minute of Article go in no way expresses the consent
and the will of the Contracting Parties; a mistake was made in

28
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 234

reproducing in Article go a minute which was not the Communal
Minute of 1836-1841 upon which the Mixed Commission had decided.
The burden of proving this allegation lies upon the Dutch Govern-
ment.

oe
* *

An examination in their chronological order of the most import-
ant of the relevant documents facilitates an understanding of the
discussions and changes of opinion within the Mixed Boundary
Commission with regard to the plots. Such an examination will also
lead to a decision in the present case. Certain facts adduced by the
Parties, which may not be necessary to the decision on the question
submitted to the Court, will not be dealt with here.

The Communal Minute, which was begun on 29 November 1836
and completed in 1830, being agreed and signed by the authorities
of the two communes on 22 March 1841, occupies a position of
cardinal importance in the present case. That document, indeed,
was to become, as the result of a resolution of the Mixed Commission,
the second part of Article 90 of the Descriptive Minute of the 1843
Convention.

The separation of Belgium and the Netherlands, in 1830, had
made it necessary to draw up a minute recording the ownership
of the plots making up the two communes of Baarle-Nassau and
Baerle-Duc.

The authorities of the two communes and those who drew it up
proceeded, in pursuance of instructions received from the respective
authorities, to ‘‘ascertain as accurately as possible the boundaries
which had long existed between the enclaved plots within the
communes”. This minute was drawn up after discussion on the
bases of the Survey Register, the lists of plots, the Property Reg-
isters, and the testimony of the oldest inhabitants; all differences
of opinion were settled with the assent of the owners (Counter-
Memorial, Annex I, pp. 6-21). The document was completed in
1839 but signed by the authorities of Baerle-Duc only in March
1841, when the Mixed Boundary Commission had already begun
its work. All the precautions indicated reveal the care and serious-
ness which went into the drafting of this important document,
free of erasures or additions, stamped with the seals of the two
communes, which was drawn up in two copies recording the official
text, and deposited in the archives of each of the two communes.
The original copies could not but be identical. The two Minutes
follow the forms of a treaty or convention between the two com-
munes. It is a single legal instrument, the work of the authorities
of the two communes which it will not be possible to alter save by
their agreement. It indicates who are the contracting parties; a
preamble states the reasons which have determined its conclusion
and the purpose in view, which is to record certain facts. The Minute

29
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 235

agreed by the two communes, which consists of fourteen pages and
relates to 5,732 survey plots, constitutes an agreement between the
communal authorities of the two States. Only the copy deposited
in the archives of the commune of Baarle-Nassau has been put in
in this case; the other copy, belonging to Baerle-Duc, has not been
produced by the Belgian Government. This failure to produce it is
to be regretted, for, clearly, either the missing copy agreed with
that which has been put in, or it differed from it. In either event,
the presence of the document would have cast decisive light upon
the rights of the Parties. The present case would probably not have
been submitted to the Court. The non-possession of this document,
invoked by the Belgian Government, cannot create for that Gov-
ernment a more favourable situation. It has neither explained nor
proved when and how this disappearance occurred; neither accident
nor force majeure has been put forward by way of explanation. It
is a mere assertion on its part, made in 1955.

In any event, no doubt has been raised by the Parties as to the
authenticity of the Communal Minute and, as the only existing
copy, it must be regarded as completely authoritative.

*
* *

In order the better to understand the work of the Mixed Com-
mission, it is convenient to divide it into two separate periods.
The first period extends from 3 June 1839 until its adjournment on
18 January 1842, and the second from 23 February 1843, when its
work was resumed, until 8 August of the same year, the date of the
signature of the Descriptive Minute. One important fact occurred
between the two periods of the Commission’s work; that was the
Treaty of 5 November 1842, ratified on 5 February 1843, which
laid down the general lines to be followed by the Commission in the
fulfilment of its mission.

When the Mixed Commission established by the Treaty of
London of 19 April 1839 came, in the course of its work, to the
sectors of the communes of Baarle-Nassau and Baerle-Duc, it
encountered serious and special difficulties in continuing the fron-
tier line which it had until then been able to draw. The Belgian
Commissioners indicated that, in view of the instructions which
they had received, they were obliged to maintain the status quo
so far as the Belgian commune of Baerle-Duc was concerned
(letter of the President of the Belgian Commission to the President
of the Netherlands Commission of 4 September 1841).

The Commissioners deputed by the Mixed Commission, having
met at Achel, on 26 October 1841 (175th meeting), recorded that
being unable “to apply to the delimitation between the communes
of Baarle-Nassau and Baerle-Duc the same methods and types of
operations as had been used for the rest of the frontier line, [they]
had agreed in these special circumstances to proceed in the following

30
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 236

way... They would confine themselves ... to ascertaining and
recording which plots, whether built-up property, arable land,
meadows, gardens, orchards, woods or heathland, etc., belonged to
the Netherlands, and which to Belgium, that is, to the communes of
Baarle-Nassau and Baerle-Duc.” For the purpose of this work, the
Communal Minute of 1836-1841 was ‘‘taken as the basis of the
division of the) territories of the two communes... Accordingly it
was ... agreed by the delegates of the Mixed Commission that the
territory of the ... commune of Baarle-Nassau included all the plots
under the following numbers:

Section A, known as Zondereygen.
I, 4, 5 and 62 to 67 inclusive; 78 to III inclusive; 113, 127 etc.”
(Counter-Memorial, Annex XX VII 4, pp. 57-58).

By this decision, in which the Belgian Commissioner Viscount
Vilain XIIII collaborated, the Sub-Commission attributed the
disputed plots to Baarle-Nassau.

A letter of Viscount Vilain XITII, of the following day, 27 October
1841, addressed to the burgomaster of Baerle-Duc, asked the latter
to inform him whether plots 91 and 92 belonged to Baerle-Duc for,
according to the boundary minute of the commune of Baarle-
Nassau, they belonged to Baerle-Duc; the minute of our commune
does not refer to them, added the letter (Counter-Memorial, Annex
XXII, p. 51). The reply to that letter has not been placed before
the Court.

The letter of Viscount Vilain XIJII, referring to a boundary
minute of the commune of Baarle-Nassau, cannot have been allud-
ing to that commune’s Minute of 1836-1841, the original of which
has been deposited in the Registry and establishes that plots 91
and 92 belong to Baarle-Nassau. The assertion in his letter that
“the minute of our commune does not refer to them” shows that he
recognized that according to that minute the plots in question were
attributed to Baarle-Nassau. This letter is evidence corroborating
the fact that the original copies deposited in the two communes
were in agreement on this point.

In an Annex to a Report sent to the Minister for Foreign Affairs
of the Netherlands on 31 October 1841, by the President of the
Dutch Boundary Commission, it is said that it had been mutually
agreed at Achel by the delegates of the Mixed Commission that the
territories of the two communes consisted of the plots indicated in a
table appended to the Report. According to this table, in Section A,
known as Zondereygen, it is stated that plots 91 and 92 belong
to Belgium. The Dutch President in so stating was not accurately
reporting the decision which had been taken at Achel with regard
to the disputed plots.

3X
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 237

On 1 December 1841, the Mixed Commission studied the diffi-
culty which prevented the Commissioners appointed from estab-
lishing a continuous frontier between Baarle-Nassau and Belgium.
This difficulty arose from the particular character of the territories
of Baarle-Nassau and Baerle-Duc which were made up of inter-
mingled parcels. It was decided to proceed to a verification of the
work of Sub-Commissions designated to record the sovereignty of
each Power over the various plots making up the territories of the
two communes (Counter-Memorial, Annex XXVI, p. 55).

One month after the Achel decision, on 2 December 1841, a
plenary meeting of the Mixed Commission, after discussion and
having regard to the proposals of the delegates of the Commission,
decided upon the following provision for the division of the terri-
tories of the communes in question:

“Paragraph 1.—It not being possible without the very greatest
dificulty to effect a delimitation properly so called as between
these two communes, all that can be done is to recognize and to
designate the plots consisting of built or unbuilt property which
belong respectively to the commune of Baarle-Nassau (Netherlands)
and to the commune of Baarle-Duc (Belgium).’”’ (Counter-Memorial,
Annex XXVII, p. 56.)

The decision of 4 December 1841, by the Plenary Commission
(176th meeting), in recording the plots which should belong respect-
ively to each of the two States, designating them by their survey
sections and numbers, included in Section A, known as Zondereygen,
inter alia ‘‘the plots numbered 78 to III inclusive” as belonging to
Baarle-Nassau (Memorial, Annex VI, p. 23).

Thus, at the time when the Mixed Commission adjourned its
work on 18 February 1842, it had decided that the plots were Dutch
(Counter-Memorial, Annex XXXI, p. 64). The doubts raised by the
letter of Viscount Vilain XIIII had been entirely dissipated. There
was no uncertainty, at that date, with regard to Dutch sovereignty
over the plots.

The Mixed Commission resumed its work on 23 February 1843
(Counter-Memorial, Annex XXXII, p. 65). Its work was to be com-
pleted within three months; it went on, however, for four months. The
Commission then had before it the Treaty of 5 November 1842,
Article 14 of which laid down the maintenance of the status quo
for the two communes. The question of the delimitation of the
frontier remained open. It was decided to begin work with the
definitive revision of the descriptive minutes of the boundary and
that the Sub-Commissions should be entrusted with the task of
revision (Counter-Memorial, Annex XXXII, p. 65).

32
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 238

At the meeting on 3 March 1843, the Mixed Commission adopted
the following rules relating to the method to be adopted and the
procedure to be followed:

“{x) The Presidents shall take immediate steps for the preparation
of accurate copies of the maps of plots necessitated as a result of
the Treaty of 5 November 1842.

(2) The descriptive minutes shall be revised and completed by
one or more Sub-Commissions which shall submit the result of their
work for the approval of the Mixed Commission.

(5) In order to reduce writing as much as possible and to avoid
very lengthy and often imperfect collating, the descriptive minutes,
of which a considerable number of copies will be required, will be
duplicated and run off, the costs being shared, in 50 copies, 25 for
each Commission.” (Counter-Memorial, Annex XXXIII, p. 66.)

The work was thus being divided. It should not be forgotten that
the Descriptive Minute contains 142 articles and that the work was
to be completed within three months.

On 4 April 1843 (225th meeting), the Commission adopted a
resolution containing two articles of which the first alone is relevant
to the case; the articles were to be annexed to the minutes of that
meeting. As a result of that resolution, the decisions relating to the
communes of Baarle-Nassau and Baerle-Duc, set out in the minutes
of the 175th and 176th meetings, were cancelled. As a result, the
decisions taken on 26 October and on 2 and 4 December 1841 were
rendered ineffective. This cancellation was the immediate conse-
quence of the adoption at that same meeting of the Communal
Minute of 1836-1841, as a record of the status quo, which had to be
maintained in virtue of Article 14 of the Treaty of 5 November
1842. The proclamation of the maintenance of the status quo obvious-
ly compelled the Mixed Commission to revise everything that had
previously been agreed upon with regard to the plots of the two
communes in derogation of the status quo ; it maintained everything
that had been decided on the basis of the status quo. The resolution
of 4 April 1843—which will be set out in full having regard to its
extreme importance, for it was to constitute the first part of
Article go of the Descriptive Minute of the 1843 Convention—was
as follows:

“Article 90
Communes of
Baarle-Duc (Belgium) and
Baarle-Nassau (Netherlands)

Paragraph 1. The boundary line, after separating the commune
of Poppel (Belgium) from the commune of Alphen (Netherlands)
touches, at the point described at the end of the previous Article,
me territory composing the communes of Baarle-Duc and Baarle-

assau.

33
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 239

As regards these two communes, the boundary commissioners:

Having regard to Article 14 of the Treaty of 5 November 1842,
worded as follows:

‘The status quo shall be maintained both with regard to the villages
of Baarle-Nassau (Netherlands) and Baarle-Duc (Belgium) and with
regard to the ways crossing them.’

Whereas the present situation of these places, maintained by the
provisions of Article 14 referred to above, does not allow of a
regular delimitation of the two communes in question;

Whereas it may nevertheless be useful to record what was
established, after discussion, by the Minute of 29 November 1836,
agreed and signed on 22 March 1841 by the local authorities of the
communes;

DECIDE:

(a) The above-mentioned Minute, recording the plots composing
the communes of Baarle-Duc and Baarle-Nassau, is transcribed
word for word in the present Article.

(b) A special map, in four sheets, showing the whole detailed
survey plot by plot of the two communes, is drawn up on a scale of
I : 10,000 and to this map are annexed two separate sheets showing,
on a scale of I : 2,500, those parts of the communes which a
smaller scale would not show sufficiently clearly.

(The Minute referred to above will here be inserted textually. }”

As a result of this resolution adopting the Communal Minute of
1836-1841, the disputed plots were incorporated in the commune of
Baarle-Nassau. A provision of this minute stated in terms: “Plots
78 to III inclusive belong to the commune of Baarle-Nassau.” The
Mixed Commission, on 4 April 1843, in deciding to maintain the
status quo, recognized Dutch sovereignty over the plots. In this
resolution it irrevocably made its choice. After that date no other
resolution was adopted by the Mixed Commission on this point.

The content of the status quo which had thus been adopted by the
Mixed Commission was also accepted by the Belgian Minister at
The Hague in a letter of 26 June 1843 to the Minister for Foreign
Affairs of the Netherlands. He laid claim, on behalf of the inhabit-
ants of the commune of Baerle-Duc, to a certain right to the use
of heath in the possession of Prince Frederick of the Netherlands.
The property in question included plot 91. The Belgian Minister
added in his letter:

“Tf the question arose in respect of Belgian territory, its solution
would be simple, as Articles 8 and 10 of the Law of 28 August
1792 would formally guarantee the rights of Baerle-Duc.”
(Counter-Memorial, Annexes XLI and XLI a.)

34
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 240

*
* *

In order to appreciate the legal scope of the resolution of 4 April
1843, from the point of view of the present dispute, it is necessary
to analyze its content. The resolution is an agreement reached in
accordance with the free and concordant wills of the authorities
deputed by the two Governments to fix the sfafus guo and the situa-
tion of the two communes, and it must exercise its full effects.

Once embodied in Article 90 of the Descriptive Minute, this
resolution became a provision of the 1843 Convention. The same is
true of the Communal Minute, the wording of which was to be
exactly reproduced.

It is clear from the resolution that the Boundary Commissioners,
in view of Article 14 of the Treaty of 5 November 1842, were to
maintain the status quo in regard to the two communes. This method
respected the local and pre-existing situation between them. It is
the basis of the principle of ut: possidetis, an obvious and convenient
procedure. As from 4 April, the status quo for the plots of the two
communes remained fixed.

Moreover, as was observed in that resolution, there was no possi-
bility of demarcating the boundaries of the two communes in a
regular way. This was impossible for two reasons—one legal
{Article 14) and the other physical (the conformation of the two
enclaved territories and the intermingling of the plots), and this
decided the Mixed Commission to adopt the Communal Minute of
1836-1841 in order to determine which plots belonged to each of
the two communes; this was to be transcribed “word for word” in
the Descriptive Minute. The text of this Minute, despite a final
note in the resolution of 4 April 1843, was never incorporated
verbatim in the minutes of that meeting of the Mixed Commission.

The Communal Minute, which was to be transcribed word for
word in Article go of the Descriptive Minute, was the one drawn
up after discussion on 29 November 1836, and agreed and signed
on 22 March 1841 by the two communes. It was an authentic copy
of that Minute which was to be incorporated in Article go, for that
was the document which was authoritative and which evidenced
the status quo of the plots as between the two communes—such
was the intention of the Boundary Commissioners and it was to
that that they had given their consent. Now that Communal
Minute was not reproduced “word for word” in Article go of the
Descriptive Minute of the delimitation between the Kingdoms of
the Netherlands and Belgium, as had been decided by the Mixed
Commission. In the Communal Minute, an original copy of which
has been produced, the disputed plots are declared to belong to
Baarle-Nassau, while the Minute in Article go assigns them to
Baerle-Duc, as the result of the reproduction of a document which is
not the Communal Minute of 1836-1841.

35
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 241

Article go of the Descriptive Minute is in two parts: the first
is the text of the resolution of 4 April 1843, and the second is the
insertion of the Communal Minute of 1836-1841. It is a compilation
of two instruments originating from different authorities: the
Mixed Commission and the authorities of the communes of Baarle-
Nassau and Baerle-Duc. The second part was not carried out in
conformity with the first part, which is the reproduction of the
resolution passed on 4 April; instead of incorporating a copy of the
original of the Communal Minute of 1836-1841, there was put in
its place a copy of another communal minute differing from that
which the Mixed Commission had decided to adopt. There was thus
an incorrect and vitiating implementation of a provision of the
Convention (Article 90 of the Descriptive Minute). The intention
of the Parties was not respected. This incorrect implementation
does not amount to a revision of this conventional provision, such
revision not having been envisaged by the Mixed Commission, nor
decided upon by it subsequently. The Mixed Commission did not
go back upon its resolution of 4 April and no change was made in
its text. Whenever it changed any of its decisions—as when it
reconsidered Articles 50 to 112 of the Descriptive Minute at its
meeting on 12 June 1843—the change was duly noted in the
minutes of the meeting (see Counter-Memorial, Annex XXXVII,
p. 76).

No evidence has been adduced to justify the modification of
the original text by a later and different text. The copy invoked as
having served as the basis for the Communal Minute inserted in
Article go has not been produced. There is therefore no evidence of
any intentional modification on this point, and the clear and formal
resolution of the Mixed Commission incorporated in Article 90
was never at any time rescinded or revoked. It is therefore this
conventional provision which must govern the discrepancy pointed
out between the Communal Minute and the communal minute
transcribed in Article 90 of the Descriptive Minute. The purely
clerical error in the transcription of one text for another must be
recognized in the light of the complete and decisive evidence adduced :
by the Netherlands Government. An authentic legal instrument was
replaced by a non-authentic instrument differing from that which
had been agreed by the Parties. The communal minute incorporated
in Article go is a copy of a non-authentic instrument; there is no
evidence of its existence. As to the existence of a discrepancy
between the texts of the two minutes, no doubt is possible; the
original text has only to be compared with the text transcribed;
the original text has an exclusive and certain legal validity and
must prevail over the text of Article 90.

A comparison of the two Dutch texts of this minute of Article 00
reveals another discrepancy in the paragraph relating to the plots
in Issue.

36
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 242

The text produced by Belgium reads: “De parceelen nummer OI
en 92 behoren tot de gemeente Baerle-Hertog.”

The text produced by the Netherlands is as follows: “De par-
ceelen no. 97 en 92 behooren tot Baarle-Hertog.”

In the latter version, the words ‘‘de gemeente”’ have been omit-
ted. This observation makes it possible to assert that the two
communal secretaries certified two different texts and that the
Commissioners deputed to collate the two texts did not perform
their task with the requisite care.

This variation in the two texts of Article 90 of the Descriptive
Minute, attributing the plots in one case to the commune of Baerle-
Duc, in the other to Baarle-Duc, whereas, throughout the text of the
Descriptive Minute, the plots are otherwise invariably assigned to a
commune (gemeente), can only be explained as an interpolation
inserted in the text of the Communal Minute of 1836-1841 which
has been produced.

Once it had accepted the text of the Communal Minute of 1836-
1841 as decisive on the status quo, the Mixed Commission could not
alter that Minute without the intervention of the Communal
authorities. The Commission referred to an intercommunal instru-
ment for the purpose of establishing the status quo which it desired
to be transcribed word for word in the Descriptive Minute; it
prescribed the exact reproduction of that document. In principle,
the organs which have drawn up a legal instrument are alone
competent to modify or amend it. Furthermore, this Communal
Minute indicated the procedure to be followed for the correction
of mistakes which it might contain and the kind of evidence to be
produced in such circumstances. The Mixed Commission, if it had
had the intention of correcting the Communal Minute at the time
of the incorporation of that inserted in Article 90 of the Des-
criptive Minute, should have described it as an amended minute
recognizing the exact boundaries between the communes of Baarle-
Nassau, province of North Brabant, and Baerle-Duc, province of
Antwerp. The Commission did not do so. On the contrary, it sec-
ured the certification of a certain communal minute by the secre-
taries of the two communes. It is obvious that the Mixed Commis-
sion could not, without being guilty of material falsification,
transcribe as a genuine copy of a given legal instrument an in-
strument which it had previously secretly altered. From that mo-
ment, the instrument transcribed and incorporated in Article 90
was no longer the Communal Minute of 1836-1841, but another
minute the existence of which is unknown. It must be concluded
that the Mixed Commission, though at the top of the hierarchy,
was not competent to alter the Communal Minute and subse-
quently to pass it off as the Minute of 1836-1841. It is not permis-
sible to state that one is going to make a specific and accurate
quotation and then present under that name a text which does not
accord with the original. The Mixed Commission had neither the
intention nor the desire to act in this way.

37
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 243

+
* *

It is beyond dispute—as the Parties recognize—that there is
a discrepancy between the minute incorporated in Article go and
the Communal Minute of 1836-1841 on the question of the attri-
bution of the disputed plots.

The explanations submitted by the Parties with regard to the
origin of this discrepancy do not get beyond the state of mere
hypothesis. Neither of the two versions is supported by unques-
tionable and decisive evidence. All the time it is conjecture, infer-
ence and assumption on controversial facts. They cannot therefore
be accepted.

On the other hand, for the decision of the present case, it is
not necessary to know or to establish the genesis of the variation
referred to between the two texts of the minutes; it is sufficient
to note the existence of the discrepancy.

The Netherlands Government has proved its existence.

The Belgian Government contends that the departure from the
authentic Minute was deliberate; its case is that the Parties decided
to insert in Article 90 the text which was transcribed. Such an
intention, if it ever existed, was never in any way recorded in any
document. There is complete silence on the point, both in the min-
utes of the meetings of the Mixed Commission and in the Des-
criptive Minute.

The Belgian Government adds that the Parties reached agree-
ment as to the adoption of the Minute in the form in which it was
transcribed in Article 90. This assertion is contrary to the formal
text of the resolution of 4 April 1843, which has become a conven-
tional provision, and which decided that the minute to be tran-
scribed in Article go was ‘the above-mentioned Minute’, that is,
the Communal Minute of 1836-1841 and no other minute. But what
was in fact incorporated in the text of Article 90 was another non-
authentic minute. As a result of this, the consent of the Parties given
at the time of the resolution of 4 April was not respected. The 1843
Convention cannot serve as a cloak for the failure to implement a
provision of Article 90 and thus give binding force to what was
done. Its provisions cannot have the effect that a copy of an un-
known instrument is to be regarded as authoritative and prevailing
against the authentic copy of an instrument chosen by it as evidence
of the status quo. The subject-matter of the consent of the Parties
was the maintenance of the status quo recorded by the Communal
Minute of 1836-1841; that consent was not given in respect of any
other subject-matter.

*k
* *

On 14 July 1843, the President of the Netherlands Boundary
Commission addressed a letter to the Councillor of State, the

38
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 244

Governor of North Brabant, transmitting to him two true copies of
the description of the boundaries as definitively agreed by the Mix-
ed Commission. Among the annexes to this letter was the text of
Article go as referred to (resolution of 4 April 1843), but without
the transcript of the Minute indicated at the end of that resolution.
It doubtless appeared to be unnecessary to send a transcription in
view of the fact that the Communal Minute of 1836-1841 was well
known to the authorities of the commune of Baarle-Nassau. It
must be inferred that the present text of the Minute of Article go
was not at that time known to the authorities of that commune
(Counter-Memorial, Annex XXXVIIJ).

In a letter of 29 April 1844, the Councillor of State, the Governor
of North Brabant, informed the burgomaster of Baarle-Nassau
of the impending placing of boundary marks in accordance with the
Treaty with Belgium and told him which were the plots on which
these boundary marks were to be placed. He attached to his letter
a part of the boundary minute in so far as that minute related to
that commune. The extract from the Annex to that letter consists
only of the reproduction of the wording of the resolution of 4 April
1843 (which had become the first part of Article 90), without the
text of the minute inserted in Article 90 of the Descriptive Minute.
At this time the burgomaster of Baarle-Nassau could not have
known the text of this minute as reproduced in Article 90; he had
absolutely no need of the text of the Minute which the resolution
of 4 April 1843 had decided upon because he knew it perfectly well.

It is clear from these two letters that neither the Governor of
North Brabant, in July 1843, nor the burgomaster of Baarle-Nassau,
in April 1844, had before them the aprocryphal text inserted in
Article go.

oe
* *

It is quite clear that the intentions of the Parties were not res-
pected at the time of the implementation of the first part of Article
90, when there was inserted after that part a document other than
that decided upon by the Boundary Commissioners. This part of
the 1843 Convention should therefore be restored in accordance
with the sole consent given. The minute of Article go is not that
which was to fix the status quo of the disputed plots; this status quo
is to be governed by the Communal Minute of 1836-1841. This had
been irrevocably decided by the Mixed Commission and the 1843
Convention could not contain in its text something different.

*
* *

If the matter be approached from the point of view that only
the minute of Article 90 is authoritative, the claim of the Nether-
lands is still apposite.

39
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 245

It must be remembered that the Communal Minute of Article 90
of the Descriptive Minute, that to which the Convention refers,
provides for the possibility of certam amendments. For that
minute (of Article 90) in its penultimate paragraph provides that
“mistakes which may later be discovered to have crept into this
Minute may be corrected by the two Parties, provided however that
the Party which requests or requires a correction shall accompany
its claim by clear legal evidence” (Memorial, Annex IV).

This paragraph shows that the Minute of Article 90 was open to
amendment. It even laid down upon whom should be the burden of
proof and the kind of evidence to be adduced by the Parties in
order to secure the correction of errors subsequently discovered.
There was thus an express proviso relating to errors contained in
the minute of Article 90, which can be relied upon either by the
Belgian Government or by the Netherlands Government in order
to show the existence of mistakes.

The approval of the 1843 Convention did not as such say the last
word with regard to the status guo recorded in that instrument;
mistakes subsequently discovered could still be alleged.

The evidence submitted by the Netherlands Government is
effective and conclusive as showing a mistake contained in the
communal minute of Article go. This evidence is “clear” and
“legal”; it is based on the very wording of the original Commun-
al Minute of 1836-1841, a document the validity of which has not
been challenged by the Belgian Government.

Furthermore, the Netherlands—as will be seen below—have
over a long period of years exercised effective, notorious and peace-
ful possession of the disputed plots, since the 1843 Convention.
This constitutes further evidence of the status quo of the Netherlands
recognized by the Communal Minute of 1836-1841.

Reliance has been placed upon the principle of the upholding of
treaties. But that principle—which in any event is not an absolute
one—is in no way opposed, particularly when there is a clause
expressly providing therefor, to the correction of clerical errors
which they may contain, provided such errors be shown really
to exist by genuine evidence of a clear and unchallengeable nature.

The principle of respect for treaties is thus fully applied; that
principle does not require acceptance of a treaty which js not juri-
dically valid in one of its parts.

*
* *

For almost one hundred years the Convention of 1843 was applied
in a manner which does not conform with the text of the Communal
Minute included in Article 90 of the Descriptive Minute; although
that article regards the plots as Belgian, these same plots have
actually always been submitted to Netherlands sovereignty. Such

40
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 246

a situation appears to confirm, as maintained in the Netherlands
argument, the fact that the authentic Communal Minute was re-
placed by another, the existence and contents of which are un-
known. A divergence had arisen between the existing practice in
respect of the disputed plots and the Descriptive Minute; this
divergence was not drawn to the attention of the two Governments
until 1890, at the time of the draft Convention of 1892. It was then
that the oversight which had occurred in respect of Article go
of the Descriptive Minute of the Convention of 1843 and which had
passed unnoticed by the two Governments became apparent.

This effective possession of the plots, contrary to the Minute
inserted in Article 90, constitutes supplementary evidence of the
mistake alleged to have occurred by the Netherlands Government.

In a letter to the Minister of the Netherlands at Brussels dated
20 August 1890, the Minister for Foreign Affairs of Belgium stated:
“the Treaty of 1842 having laid down the status quo, it seems
preferable to refer to the Treaty rather than to the Convention of
1863”; he was no doubt referring to the Convention of 1843 (Coun-
ter-Memorial, Annex XLVII). The status quo was to prevail over
the provisions of the Convention of 1843.

The map appended to the Minute of delimitation of the two
Baarles of 1826 clearly shows that the plots in question did not
belong to the commune of Baerle-Duc. The value of this map cannot
be dismissed without examination (Rejoinder, Annex II).

In Article 3, the Convention of 1843 confers upon the topograph-
ical maps to a scale of I : 10,000, which were prepared and signed
by the Commissioners, the same force and value as the provisions
of the Convention. The map adduced by Belgium as supplementary
evidence, which consists of a sheet from a special map, mentions
in its legend plots belonging to Belgium, plots that were unallocated
as between the two Kingdoms and plots belonging to the Nether-
lands. The first of these are coloured in brown, the second in pink
and the third are not coloured. This map is not one of the maps
referred to in Article 3 which has been cited above, for that map
indicates many plots in pink without attributing them to one or
the other of the two States. That map does not take into account
the Minute which was adopted in Article go and in which the plots
are attributed either to Baerle-Duc or to Baarle-Nassau; this
Minute does not indicate that there were unallocated plots. This
map remains outside the facts agreed to in the Communal Minute
inserted in Article 90. This map-should be considered as a whole
and not in one of its parts alone; the probative value of this map is
not conclusive. Moreover, the map annexed to the Minutes of the
Boundary Commission of 5 September 1887 does not show the dis-
puted plots as being Belgian territory (Counter-Memorial, Annex
XLVI).

On the other hand, the well-established and conclusive legal facts
relied upon below are in complete disagreement with what is shown

41
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 247

on the map in question. Such a circumstance deprives the map of
any probative value.

What appears on the Belgian military staff map of 1871 does not
have the importance attributed to it in the present case, since it has
not been shown that the Netherlands authorities had knowledge
of it (Memorial, Annex XIII, p. 31). On this map, the attribution to
Belgium of the disputed plots constitutes no more than a repetition
of the mistake already indicated in the Communal Minute inserted
in Article 90. What is shown on the map cannot be regarded as
having any effect with regard to sovereignty; nor can one attribute
to it the value of an act of sovereignty.

*
* *

It has also been contended by the Belgian Government that,
at the time of the draft Convention of 1892, it was agreed that the
disputed plots belonged to Belgium. The purpose of this Convention
was to put an end to the enclaves and the draft confined itself to
putting the enclaves back into one only of the two territories, with-
out discussing to which of them the plots belonged, by effecting
mutual cessions. In order to achieve their purpose of putting an
end to Belgian enclaves in the Netherlands and Netherlands
enclaves in Belgium, the Parties based themselves exclusively on
the erroneous data in Article 90 of the Minute, without further
examination. This unratified Convention cannot be invoked against
the Netherlands. The settled case law of the Permanent Court of
International Justice and of our own Court does not allow reliance
to be placed upon proposals made in the course of direct nego-
tiations which do not lead to a complete agreement. The admission
made on that occasion by the Netherlands has not deprived it of
its right to challenge that admission. The Netherlands did not make
an outright admission; the draft Convention is a complex instru-
ment and is therefore indivisible. Moreover, after 1892 the sit-
uation of the plots remained unchanged; Netherlands sovereignty
continued to be exercised over this small territory without any
claim being put forward on behalf of the Belgian Government;
such a situation clearly shows that, in the opinion of both Govern-
ments, the alleged admission had no legal effect.

It has been asserted that the Convention of 23 April 1897 regard-
ing the repurchase of the Tilburg-Turnhout railroad recognized
Belgian sovereignty over the disputed plots. This Convention has
not been produced before the Court; in support of this assertion
reliance has been placed upon an extract from the Statement of
Reasons for the Convention as laid before the Netherlands Parlia-
ment (Reply, Annex XII). But the evidence submitted by the
Netherlands Government, cited in paragraphs 27 and 36 d) of the
Rejoinder, despite the explanation given during the oral argument
by Counsel for Belgium (Oral Proceedings, p. 113), enables it to

42
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 248

be maintained that the enclaves referred to in that Statement of
Reasons are not the disputed plots. The dues paid by the Nether-
lands Government could not be exacted in respect of the property
occupied by the railroad, for that property had been transferred
to the Netherlands Government (Counter-Memorial, Annex LI,
p. 152).
*
* *

The Netherlands Government puts forward another title of
sovereignty as against the claims of the Belgian Government. It
maintains that it has exercised the functions of sovereignty over
the plots during the years subsequent to the Convention of 1843.

The facts relied upon in support of this position are as follows:

I. The disputed plots belonged to different owners during the
period from 1845 to 1957 and Annex LI of the Counter-Memorial
gives the details regarding these changes. Reliance is placed upon
conveyances, private or public, and upon distributions and cessions.
In all these instruments it is expressly stated that the properties
mentioned therein are a part of the commune of Baarle-Nassau.
The following are the dates of these operations until 1921:
31 January 1845, 29 January 1845, 24 February 1845, 15 March 1856,
20 March 1860, 3 August 1863, 20 May 1863, 19 April 1866,
16 August 1866, 22 January 1867, 8 July 1867, 22 July 1867, 6 May
1895, I July 1898, 22 April 1904, 21 May 1904, 4 October 1904,
28 September 1904, 23 October 1905, 5 December 1913 and 16 Jan-
uary 1914. All these conveyances are entered in Dutch registers.
They refer to Netherlands surveys as well as to their numbering
therein. The tax payable on these conveyances is paid to Netherlands
offices. These conveyances are made between the inhabitants of the
two communes who are of Belgian and Dutch nationality. All these
facts were undoubtedly publicized in so far as the officials of Baerle-
Duc and Antwerp were concerned.

It is necessary to scrutinize more closely certain of these convey-
ances.

On 31 January 1845 Prince Frederick of the Netherlands ceded
to the Government of the Netherlands certain heathlands which
belonged to him, among which is included plot No. 9r. By an
Order of the Minister for Finance of the Netherlands, dated 23 De-
cember 1846, the rights of the Domain over this plot are recognized
(Counter-Memorial, Annex XLITI). This same plot, as belonging
to the Domain of the Netherlands State, was the subject of a public
sale on 15 March 1856 (p. 109).

By a conveyance dated 16 August 1866, Hubert Antoine de
Poorter of Antwerp sold to the Société anonyme des Chemins de fer
du Nord de la Belgique property situated in the commune of Baarle-
Nassau for the establishment of a railway from Turnhout to Tilburg.
This was a part of the disputed plots.

43
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 249

2. In 1851, plot No. 91 was the subject of a sale by the Nether-
lands State Domain. The commune of Baerle-Duc claimed for its
inhabitants, before the Breda Tribunal, a right of usufruct over this
plot. It did not therefore claim that this plot was a part of its
territory for in that case it would have had to apply to the Belgian
courts. This is an exercise of civil jurisdiction by the Netherlands
courts over one of the plots.

3. As is clear from the relevant documents, the plots were sub-
jected to Netherlands land tax. This constitutes a prolonged and
continuous manifestation of Netherlands sovereignty over the
plots.

4. On 4 November 1864, the Minister for the Interior granted a
concession relating to the Tilburg-Turnhout railway in so far as it
had to cross Netherlands territory and the plots in question.

5. When this railway was being built, a portion of the plots had
been indicated for expropriation by the Netherlands authorities in
December 1866. Such a measure does indeed constitute a govern-
mental act; a voluntary sale occurred subsequently.

After the draft Convention of 1892, the factual situation was
maintained unchanged. New houses were built on the plots in 1904,
former heathlands were brought into cultivation, and the inhabit-
ants of the plots entered births, marriages and deaths in the regis-
ters of their commune at Baarle-Nassau. It was not until 1921 that
the Belgian Government, for the first time, submitted to the Nether-
lands Government its claims of sovereignty over the plots.

*
* ok

Without formally challenging these facts, the Belgian Govern-
ment urges against them that it had entered the plots on its survey
and that it had included them upon a military map. It further relies
upon the unratified Convention of 1892 and a further Convention of
1897 concerning the repurchase of the railroad. The plots are said
to have been the subject of transfer deeds entered in the Belgian
survey for 1896 and 1904.

The probative value of the military map of 4 October 1871
(Memorial, Annex XIII) and of the draft Convention of 1892 and
of the Convention of 1897 have been dealt with above: it is not
necessary to revert to this matter here.

The plots were to appear in the Belgian survey in 1847 (Memorial,
Annex XII), but this entry had no practical consequences, as is
clear from the letter of 10 July 1890 from a Belgian official (Reply,
Annex VIII); plot No. 92 appeared only on the survey map of
Baarle-Nassau and plot No. gr bears the number 71 in the Belgian

44
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 250

survey but includes Nos. 189, 191, 193, 203, 205, 206, 207 and 208
of the Netherlands survey. The successive alterations of the plots
on the Netherlands survey as well as the entry of transfer deeds on
the Netherlands registers are confirmed beyond any doubt by the
documents embodied in Annex LI of the Counter-Memorial. The
transfer deeds made in 1896 and 1904 were also entered in the Nether-
lands registers (Counter-Memorial, Annex LI, pp. 149 and 168).

*
* *

In all the foregoing cases, the Netherlands Government has exer-
cised preponderant governmental functions in respect of the dis-
puted plots, without these having given rise on the part of the Bel-
gian Government to any protest or any opposition. This prolonged
tolerance of the Belgian Government in this respect has created an
indisputable right of sovereignty in favour of the Netherlands Gov-
ernment. There is no evidence that Belgium claimed restitution
of the parcels before 1921, or that any Belgian activities occurred
thereon. Reference may here be made to the importance which the
Court gave, in the Fisheries case, to the absence of protests by a
government in the consolidation of a right (U.C./. Reports 1951,
p. 138). In the Eastern Greenland case the Permanent Court did
not consider that it could neglect governmental acts, even when the
Norwegian Government had made certain protests or reservations
(P.C.I.J., Series A/B, No. 53, pp. 62-63), for it recognized the exis-
tence of two elements required to establish a valid title to sover-
eignty, namely, the intention and the will to exercise such sov-
ereignty, and the manifestation of State activity. Sovereignty over
the Minquiers and Ecrehos was decided by this Court exclusively
on the basis of facts similar to those relied upon by the Netherlands
Government in the present case (J.C.J. Reports 1953, pp. 67-70).

Such an intention to exercise sovereignty is particularly notable
after the Convention of 1843 and after the draft Convention of
1892. The Netherlands Government has continued to regard these
plots as belonging to it, and to exercise there governmental functions
in a public and peaceable way. These facts have established Nether-
lands sovereignty over the disputed plots.

* x *

In the final analysis, Article 90 of the Descriptive Minute which
is annexed to the Convention of 1843 and which is a part of that
Convention provides in the first part that the Communal Minute
signed on 22 March 1841 shall be inserted “word for word” as a
second part of Article 90. But the Minute which is reproduced is not
a literal copy of the Communal Minute signed on 22 March 1841.

45
FRONTIER LAND (DISS. OP. JUDGE ARMAND-UGON) 251

What is involved is a provision of the Convention of 1843 which
is not legally valid. Such a provision cannot constitute a valid
title of sovereignty.

On the other hand, the title which is based on the effective,
peaceable and public exercise of State functions by the Nether-
Jands over the disputed plots must be given preference over the
title of sovereignty relied upon by Belgium, which has never
really exercised the State competence which it regards itself as
holding.

(Signed) ARMAND-UGox.

46