The fallowing information £rom the Registry of the Intsrnaticnal
Court of Justice has bocn comunicat~d to 'the Prcssr
Today, 20 June 1959, the International court of Justice delivered
its ~!&mcnt in the case concerning sovereignty oves caskain Frontier
Land, submittrd to the Court 5y Sflgiun and the Netherlandsundera
Spocial Agreementconcludeabotween the two Governmentson 7 March 1957.
By thii Special ilgresment, the Court vms reques ted to determine
whothcr sover~igntyover the plots shonn in the survoy md known from
1836 to 1841 as Nos. 91 and 92, Section A, Zondercygen, belongs to the
Kingdom of Belgiim. or to the Kingdam of the IT~t'nerlands, Zjrten votes
to four, the Courtfindç that sotrôrsignty over thzseplots belongs to
Belgium.
Sir HerschLauterpacht appends to the Judpent a Declaration
explaining the rcasons nlv hs had voted in favourof a deçision deter-
mining that the sovereigntyover the disputed plots belonged to the
Nctherlanda. Judge Spiropoulosalso has appended ko the JudgmcnL a
Declarationexplainlngthat,faced with a choiee ùe tneen tvro hypo thescs
leading ta oppositeres~zlts, hc.considesed thcrt preferencc nug11.tto brr
given to the hypotheçis which seened to him to be the less sp~culative,
that is to say, in his iriewI th2hypothesisof the Betherlands. Judges
~rrnand-~gdn and Moreno Quintana, availingth~rns~lv~s of the right
confer~ed upon thela by Article 57 of the Statute, qpend to the
Judp~nt statements of their BiçsentingOpinions.
In its Judgnent, the Court finds that in the asea north of the
Belginn toan of Tuxnhoilt thcre are a nun'oei of cnclavcs fclrm~d by the
' Belgian cqm~jriunoof Baerle-Ducand the Nethorlandscommune of Baarle-
Nassm. The territoryof th^ formeris n~~de up of a scries of plots
of land mmy of mhich arc enclased in thc comns of ~aarlc-~issnu.
Variousportions of the corrununc of SaerLc-Ducare not onSy isolatcd
£rom the nain territoryof Belgium but also one fsom anothor.
Folloïling on attemptsto ;;tablish the boundaries botiqiecnthe tuf0
cornunes and the frontier beti:rscrithe tao corntries, a Minute knom
as the HCommunalMinute" vrüs drawn up by the mthorities of the tvo
eommunos betwecn 1836 and 1841. A copy of thisI~rinuDo was produced
by the Nethexland s Under the neading "Section A, called Z~ndoseygen'~,
it states:
"'Plots o.,. ItPlots nm'oe~s 78 to 111 inclusive bslong to the commune
of Baarle-Nassau,
Further, follor7rirg the separation of the Nc'cherlands from Belgium
.':,i:n8,39,a,MixodSoundaryCommissicin vras set up to determino the' lirnits
.,..of th&:possessions of th^ tmo States. A BoundaryTreaty, concluded
between them in 1842, which entcred into force In 1843i stated in
Article 14 that I
"The ststus quo shall be maintainedboth with regard to
. the villagesof Baarle-Nassau (NEtherlmds) and Bacrle-Duc
(~el~im) and nith rogard to the mays crossing %hemv ,
The work of the Mixed Bomdary Corniasion resultedin the tcxt of
the Boundary Convmtion dsted 8 Auest 1843, which was ratificd on
3 Octobcr 1843. The descriptiveminuteof the frontier annexed to
this Convention states in Article 90 the procedurethat was folloved
ivhen the determination of the frontier rcached the tesritory of the
communesof Baarle-Nassau and Bacrle-Duc, and says that the Boundary
Cemissioners decidedthat the Communal Minute of 1841,"noking tho
plots eomposingthe comuncs of ~aerle-DUC and Baarle-Nassau, is O
transcribed wrd for word in the p-kaent Article".
In that part of the descriptiveminute of 1843, however, Which
repaats the text of the CommunalMinute of 1841, the follomingappears:
'"Plots numbcrs 78 to 90 inclusive bclong to the cornune
of Baarle-Nassau,
Plotsnumbers91 and 92 bclong to Bacrle-Duc.
Plots nuabers 93 to 111 inclusivebelong to Baarle-
Nsssau" .
Further, the specid rnap nnnexed to the Bowidary Conveqtion shows
the disputedplots as belonging Go Bclgiwn.
The Belgian Goverment relies upon the terms of th^ Corniunal Minute
as they Wpear in thc Descriptive iklinute, for the purpose of showing
that plots Nos. 91 ad 92 have been recogniaedas belonging to the
commune of Baerlc-Buc and that sovereignty over these plots belongs
to Belgium.
The Netherlands Covernment,for its part, maintains that.the
Conventionof 1843 did no more than recognize the éxistenco of the
status quo 3ithout determiningit and th@ thivetotua quo nnst be dotarmined
in accordance nith the Conrnunal lfllnute undcr ivhich sovereignty oves
the disputed platswas recognizedas vestad in the Ncthcrlmds,
Alternatively, the BTetherlands Goverment maintainç that, even if
the Boundary Convention purported ta determinethe sovereigntg, the
provision relatingto the'disputed plots was vitiatcdby mistaka.
It contends that a mero cornparison betwen the terns of the Gomunal
Xinute and tha DescriptiveMinute establishes this.
As a furtheralternative, t.e 116therlmds Governm~ntsubrnits $ha$,
shcluld it be held that theBoundary Conventian determifled the -sove~eigmty
in respect of the disputed plots and is not vitiated by mistake, acts of
sovereignty exercised by it since 1843 ovar these plots have displaced
the legal title floming from the Convention and have established
sovereigntyin the Netherlands, In its Judgment, the Gourt deals successively uith thcse three
contentions.
'*
In order to ansner the.first qûsstion: Did the Convention of 1843
itself detcrrninc sovereigntyover the plots or did it confineitself -bo
a rsferoncc to the stntus quo, the Gourt examinesthe nork of the
Boundary Commission as rccordcd in the Miaiutes .. From this exmination,
it appears that, £rom 4 Septembor1841,the vork of delinitation
proceedcdon the basis of the naintensnce of the statusquo and that,
ai the meetingon 4 Aljsil 1843, the Mixed Boundan Cormission ado-ted the
text of an articlc which provided, in the terms aipe%ring in the
Descriptive Kinute, for the transcription mord for nord of the Comunal
14inute. Thereby the Mixed Corrmission attributcd thc diçputed plats to
Belgium,
@ The Court is of opinion thnt the autharity of the Mixed Bowsdary
Comiission to demarcato th^ two commnes Is beyond question. This
fcill~~vs frorn Articls 6 of th2 Treaty betwcen the Notlierlands 2fidBelgium
concluded in London on 19 April 1839,mhich providesr
'!Th5 said llmits shallbe rnarked out in conformity nith
those Articles, by Btllgian and Iiutch Commissioners of
Dcmarcation who shallmet as soon as possible ...If,
and this is confirmcd by the preamble to the Bauxdary Convmtion of 1843.
3ny interpre tstiun under Ivhich the Boundary Conventionis rsgarded
as .leaving in suspense ay?d abandoning for a subscquent appreciation of
the status quo the determination of the right of onc State or the other
to the.diçputed plots would be inconpatible with the cornman intenticn of
the Parties as thus indicated.
On the first contention, the Court concludesthnt the Convention did
determine, as betwoen the two States, to srhich State the various plots
in each communebelonged md that, under its terns, the disputcdplots
wre deternined ta bclong to Belgiuri.,
-%
On the second contention to the effect that the Convention is
vitiated by mistake, the Gourt szys in its Judgment that this contention
nlzy be statod as folloms: The Descriptive Ii'linutcof 1843 spccified that
the Comunal Minute of 1841 noting the plots composing the comunes of
13aerle-Duc ~wd Baarlc-Nc~asau should be transcribed "~dosd for word" in
Article 90 of the Descsintive Minute, B conparisonof the copy of the
CommunalIdinute pxoduced by thc Nethcrlaxids with the Descriptive Minute
discloses, homevor, thst there was not a "nord for word" transcription
of the former,inaanuch as the Descriptive Minute attributesplots
Nos. 91 ma 92' to Belgium, mhereas this copy of the Commun~tlMinute
attributesthen to Bsarle-Nassau,
The . ,., The Court considers that a mere cornparison of thesa trro documorlts
does not establish the existence of a rnistake. To succced on this
basis, the Netherlmds must ostablish thatthe intention of the Mixed
Soundary Commission was that the Descriptive Minute attachod to and
forming part of the Convention of 1843 should set out the text of the
Communal contained in the copy produçed by the Netherlands.
The Courtrecalls tlze fact that the duty of the EilixedCommis~ion
was essentially to determinethe status quo.
Fson the examination of the docirments produccd concerningthe work
of the Mixed Bomdarg Commission and from the correspondencerelating
thereto, the Court drzws the conclusion that the two copies of the
Communal Minute held by the Netherlands and B~lgim Commissionswere
at variance on the attributionof the disputcd plots to the two communes.
1% considers that the hypotheses adv<mced by the Netheslands to explain
hom the copy of the Communal Minute in the hands of the Nethexlands
Commission was in the same terms as those used in the Descriptive Minute
fail to establish the exiotsnce of a mistake.
The Netherlands having contended that it need not establish the origin
of the mistzke,since a simple cornparison between the two documents
revcals sufficiently that a mistakewas made, the Court replies that the
matteris not capable of being disposed of on this narrom ground and
that it mus% ascertainthe intentionof the Parties from the provisions
of a treaty in the Zight of al1 the çircunistanceç. Jt finds that, in
Ap-ril 1847, both Gornnissions bad beoia in posae~eion of oopiesof the
Communal Ilhinute since 1841, The difference betweentheae copies in
regard to the attribution of plots Wos,91 md 92 mas knom to the
tnro Camissians and must have been a subject of discussionbetween them.
In the detailed maps dram up to constitutepart of the Boundary
Convention, it mas clsarly çhown, and in a rnanner ~vhich could not escape
natice, that the plots belonged ta Belgiwn, Further, the Commission was
not a mere copyist y Its duty na3 to ascertain rihat the status quo was.
At its 225th meetingit attributedsovereigntyover the disputedplots to
Belgium. This decisionfound its expression in tkicBoundasy Convention.
In the view of the Court, apnrt fram a mere cornparison of the text of
the Descriptive Minuta with ths copy of the CornunalMinute produced by
the Netherlands, al1 attempts to establishand to explain the alleged
mistake are based upon hypothesos which are not plausible and whTch are
not acconpaniedby adequate proof, The Court çaya that it is satisfied
that na case of mistakè has bern mado out and that the validity and
binding force of the provisionsof the Conventionof 18Pr3in respect of
the disputed plots are not affected on that account.
The final contentionof the Netherlands is thnt the acta of
sovereignty ex~rcised by the Netherlmds 'since 1845 have eatablished
sovereignty over the plots in the Netherlands. The questionfor the
Court is therefore whether Belgim has loat its sovereigntyby non-
assertion of its rights and by acquiescencein acts of sovereignty
alleged to have been cxercised by the Netherlands at different times
since1843.
The , .., The Court recalls different acts pekformed by Belgium vrhich show that
Belgium has never abandoned its sovercignty - the publication of nilitary
staff rnaps, the inclusionof the plots in the survey records, the entry
hn the Records of the Survcy iluthoritles at Baerle-Duc in 1896 arid 1904
of transfer deeds, On the other hand, the Netherlands rely upon the entry
in the Records of Bzarle-Nassau of several land traznsfers relating to the
plots, and the entry in the Communal R~gister of thzt comune of births,
deaths and narriages, It mas in July 1914 thnt an official Belgian
enquiryled the Director of the Survey at llntwerp to inforn the Selgian
hlinister for Finance that he thought it necessaryfor the matter to be
submittedto the Belgiar, Ministryfor Foreign Affairs. The Birst World
War then intervened, In August 1921, the Belgian 1,Tinister at The Hague
drew the attention of the tTetherlands Goverment to the fact that the
two disputedplots belonging to Baerle-Ducwere entsred in the survey
documentsof bath States. It was in 1922 that the Nethexlands authorities
for the first time clairned that thk Comnwnal Tdinute of 1841 had been
inaccuratelyrepraduccd in the Descriptive Minuteof 1841and that plots
91 and 92 belonged to the Netherlanda. The Netherlands ~elie3~in
zddition to the incorporation of the plots in the Netherlmds survey, the
entryIn its rsgistersof land transfer deeds and registrations of births,
deaths and rnarriages in the Comunal Registerof Baarle-Nassau, on the
fact that it has collectad Nethexlands land tax on the two plots without
any reaistmce or protest an the part of Belgium, Relianceis also placed
by the Netherlands upon certain proceedings taken by the comune of Baerle-
Duc bef ore a Breda tribunalin 18jl and on variaus other acts which are
claimed to çonstitute the exercise of Netherlands aovereigntyover the
plots vithout any oppositionon the part of Belgium.
The Court finds that the acts relied upon are lnrgely of a routine
2nd administrative character and zrc thc canscqucnceof the inclusion
by the Netherlmds of the disputed plots in its survey, cantrary to the
Boundary Convention, They are insuffici~nt to displace Belgian sovereignty
establishcd by that Convention,
T~E-Court notes furthcr thst,in an urrratified Convention 'oetv~sen the
tnu States going back to 1892, Belgium agreed to cede to the fletherlmds
the two disputed plots. This unratifiod Convention did not, of course,
creete my l2gal rights or obligations, but its terms show that, at that
tirne, Belgiun was assertingits sovereigntyover the tvrroplots and that
the Metherlmds knew it was so doing, The Netherlandçdid not, in 1892
or at any time thereafter mtil the disputearose beti:re~n the two States
in 1922, repudiate the Bclgian assertion of sovereignty. The Court finds
that Belgian sovereignty established in 1843 over the disputed plots has
not been extinguished,
For these rcasons, the Court reaches theconclusion given above,
The Hague, 20 June 1959,
Sovereignty over Certain Frontier Land - Judgment