Judgment of 20 June 1959 | INTERNATIONAL COURT OF JUSTICE

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE
CONCERNING SOVEREIGNTY

OVER CERTAIN FRONTIER LAND

(BELGIU/NETHERLANDS)
JUDGMENT OF 20JUNE 1959

COUR INTERNATIONADE JUSTICE

RECUEIL DES ARRETS,

AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA

SOUVERAINETÉ SUR CERTAINES

PARCELLES FRONTALIÈRES
(BELGIQUE/PAYS-BAS)

ARRÊT DU 20 JUIN1959 lhis -Jutlgmcnt should be cited as follons:

"Case concerning Sovereignty over certain Frofztier Land,
J~lci'gme~ ft20 Juirc 1959: I.C.J. Reports 1959, p. 209."

Le prézent arrêt doit être cité comme suit :

(A8ail.e relative li In souveraigsz~rcertainesfiarcellesjrontalières,
Arrêtdu 20 juin I9j9: C. I. J. Recueil Ig.59,fi.209.))

/ Sales number 208 /
NO de vente : 19.59 INTERNATIONAL COURT OF JUSTICE
20June
General List:
No.38

YEAR 1959

20June 1959

CASE

CONCERNING SOVEREIGNTY

OVER CERTAIN FRONTIER LAND

(BELGIUM1NETHERLANDS)

Boundary Conventionof 1843 betweenthe Netherlandsand Belgium.-
Determinationof Frontier.-Squo.-Prooof mistake.-Acquisi-
tion of sovereignty,in derogationof Treaty.

JUDGMENT

Presen:PresidenKLAESTA D Vice-PresidZAFRULLA KHAN ;

JudgesBASDEVANT H,SCKWORTH W, INIARSKI,BADAWI,
ARMAND-UGOK NO, JEVNIKOS,ir Hersch LAUTERPACHT,
MORENO QUINTANA,CORDOVA W,ELLINGTOKNOO,SPIRO-
POULOSS ,ir Percy SPENDEDe$uty-RegistGARNIER-
COIGNET.

4 In the case concerning Sovereignty over certain Frontier Land,

between
the Kingdom of Belgium,

represented by
M. Yves Devadder, Legal Adviser to the Ministry of Foreign
Affairs,

as Agent,
assisted by
Me Marcel Grégoire,of the Bar of the Brussels Court of Appeal,
as Advocate,

and
M. Louis Geeraerts, Inspector-General in the Ministry of Foreign
Affairs,
M. Alfred van der Essen, Director, Ministry of Foreign Affairs,

as Experts,

and
the Kingdom of the Netherlands,

represented by
M. W. Riphagen, Legal Advi;er to the Ministry of Foreign Affairs,

as Agent,

assisted by
Me C. R. C.Wijckerheld Bisdom, of the Bar of the Supreme Court
of the Netherlands,
as Counsel,

and
Me J.Schepel,ofthe Bar ofthe Supreme Court ofthe Netherlands,
MlleL. Lagers, Chief of Section, Ministry of Foreign Affairs,
as Experts,

composed as above,

deliversthe followingJudgment:
By a letter of 26 November 1957 received in the Registry on
27 November, the Minister for Foreign Affairsa.i. of the Netherlands
transmitted to the Registry a certified true copy of a Special

5 Agreement concluded between the Government of the Kingdom of
Belgium and the Government of the Kingdom of the Netherlands,
signed at The Hague on 7 March 1957, Articles 1 to IV of which
are as follows:

"ArticleI
The Court is requested to determinewhether sovereignty over the
plots shown in the survey and known from 1836 to 1843 as Nos. 91
and 92, Section A, Zondereygen, belongs to the Kingdom of Bel-
gium or the Kingdom of the Netherlands.

ArticleII

Without prejudice to any question as to the burden of proof, the
Contracting Parties agree, having regard to Article37 of the Rules
of Court, that the written proceeding should consist of:
I. a Memorial of the ~i&dom of Ëelgium to be submitted within
three months of the notification of the present Agreement to
the Court in pursuance of Article III below;
z. a ~ounter-~tkorial of the Kingdom of the Netherlands to be
submitted within three months of delivery of the Memorial
of the Kingdom of Belgium;
3. a Reply of the ~in~dim of Belgium followed by a Rejoinder
of the Kingdom of the Netherlands to be delivered within
such times as the Court may order.

Article II1
Upon the entry into force of the present Agreement, it shall be
notified to the Courtunder Article 40 of the Statute of the Court by
the Kingdom of the Netherlands.

Article IV

The present Agreement shall be subject to ratification.
The instruments of ratification shall be exchanged as soon as
possible in Brussels andthe present Agreement shall enter into force
immediately upon the exchange of those instruments."

The Minister for Foreign Affairs a.i.of theNetherlands attached to
his letter a certified true copy of the Certificate of the exchange of
instruments of ratification of the Special Agreement, which took
place at Rrussels on 19 November 1957.
Pursuant to Article 33, paragraph 2, of the Rules of Court, the
Registrar at once inforrned the Belgian Government of the filing of
the Special Agreement. In accordance with Article 34, paragraph 2,
of the Rules of Court, copies of it were transmitted to the other
Members of the United Nations and to non-Member States entitled
to appear before the Court.
By an Order of 12 December 1957 ,ime-limits for the filing of
the Memorial and Counter-Memorial were fixed in accordance with

6the proposalsmade by the Partiesin paragraphs Iand 2 of Article II
of the Special Agreement. At the request of the Netherlands
Government and with the agreement of the Belgian Government,
the time-limit for the Counter-Memorialwas extended by an Order
of 27 May 1958. The time-limits for the filing of the Reply and
Rejoinder were fixed by an Order of IJuly 1958.
These pleadings having been fded within the time-limits fixed by
these Orders, the case was ready for hearing on 31 March 1959.

Hearings were held on 27, 28 and 29 April and on 1,2, 4 and 5
May 1959,in the course of which the Court heard the oral arguments
and replies of M. Devadder and Me Grégoireon behalf of the Gov-
emment of the Kingdom of Belgium, and of M. Riphagen and
Me Wijckerheld Bisdom onbehalf ofthe Government of the Kingdom
of the Netherlands.
In the course of the written and oral proceedings, theollowing
submissions were presented by the Parties:
On behalf of the Belgian Government, in the Memorial:
May it please the Court to adjudge and declare that:

"sovereignty over the plots shown in the survey andnown from
the6Kingdom of Belgium".d 92,SectionA, Zondereygen, belongsto

On behalf of the Govemment of the Netherlands, in the Counter-
Memorial :
May it please the Court to adjudge and declare that :

1836etoi,184 3sNos. 91 ands 92,Section A, Zondereygen, belongs
to theKingdom of the Netherlands".

These submissions were maintained by the Parties in the Reply
and in the Rejoinder and during the oral proceedings.

By the Special Agreement the Court is requested to determine
whether sovereignty over the plots shown in the survey and known
from 1836 to 1843 as Nos. 91 and 92, Section A, Zondereygen,
belongs to Belgium or to the Netherlands.
The frontier between the two States in the area where the two
plots in dispute are situated presents certain unusual features.
Whilst the frontier in generalis a linear one, in the area north of
the Belaan town of Turnhout there are a number of enclaves
formed by the Belgiancommune of Baerle-Duc and the Netherlands
commune of Baarle-Nassau.

The territory of the Belgian commune of Baerle-Duc is not
continuous. It is made up of a series of plots of land, many of which213 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)

are enclosed in the Netherlands commune of Baarle-Nassau. Various
pieces of the commune of Baerle-Duc are not only isolated from
the main territory of Relgium but also one from another. Neither
is the territory of the commune of Baarle-Nassau continuous: that
commune has enclaves within Belgium. The Court is informed that
the origin of this situation is very ancient.

In 1826, when the Netherlands and Belgium were a single
Kingdom, a proposa1 was made to fix the boundaries between
the two communes. A minute of delimitation, drawn up on
IO September of that year, to which was appended a map,-pro-

posed a continuous boundary for Baarle-Nassau, the abolition
of enclaves within its territories and compensation in land. This
proposal was abandoned as it was rejected by the commune of
Baerle-Duc.
In 1836, an attempt was made by the burgomasters of the two
communes to establish the exact boundaries between the two com-
munes in order to secure an equitable allocation of land tax. In
that year, the burgomasters, with their officials, proceeded to
establish as exactly as possible the division that had existed from
the earliest times between the plots of land enclosed within these
communes. They established a Minute which is dated 29 November
1836, but which was not completed until about the middle of 1839.

It was finally signed on 22 March 1841. It is hereinafter referred
to as the "Communal Minute".
This Minute was drawn up in two original copies to be deposited
in the archives of each of the two communes. What purports to be
one of these original copies has been produced by the Netherlands.

The copy produced by the Netherlands states under "Section A
called Zondereygen" as follows:

[Translation]
"Plots numbers 78 to 111 inclusive belong to the commune of
Baarle-Nassau."

The Communal Minute was not established ivithout difficulty.
For a considerable time the commune of Baerle-Duc refused to
sign it. In some respects the decisions taken in 1836 left some
doubt and did not satisfy either commune. Considerable effort
appears to have been made to remove mistakes. The Communal
Minute itself provided that any errors therein could be corrected
by common accord. There seems to have been no intention that the
Communal Minute should constitute an immutable document.

The separation of Belgium from the Netherlands was sanctioned
by the Treaty of London of 19 April183g. Gnder the terms thereof,

821'4 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)

a Mixed Boundary Commission was set up to fix and detennine the
limits of the possessions of the two States.
This Commission was already engaged upon its work at the time
when the Communal Minute was signed in March 1841. Shortly
thereafter, it directed its attention to the situation existing between
the two communes and continued to do so till the end of1841.
It then discontinued its labours and they were not resumed until
early 1843.
Dunng this interval the two Governments had, on 5 November
1842, signed a Boundary Treaty which entered into force on
5 February 1843 .hey had considered it necessary to intervene to
settle by their common agreement certain questions relating to the
determination of the frontier.Itshould here be recalled that on
4 September 1841 the Belgian Government had rejected a proposa1
to settle, by means of mutual exchange of temtones, the situation
in respect of the communes of Baerle-Duc and Baarle-Nassau, and
had declared in favour of the maintenance of the status quo.

Accordingly, Article 14of this treaty stated:
[Translation]
"The statusquoshall be maintainedbothwith regard to the villages
of Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and
with regard to the ways crossingthem."

Article 70 stipulated that the Mixed Boundary Commission should
"draft the convention ...in accordance with the foregoing pro-
visions..".
The work of the Mixed Boundary Commission resulted in the
text of a Boundary Convention dated 8 August 1843 ratifications
of which were exchanged on 3 October 1843 . rticles1,2 and 3 of
this Convention provided as follows:

[TranslationJ
"Article I. The frontier between the Kingdom of the Netherlands
and the Kingdom of Belgium stretches from Prussia to the North
Sea.
This frontier, which is divided into three sections, is defined in
according to the detailed survey maps, drawn to a scaleof 1/2,500,
and by means of exarninations made on the spot by commissioners
delegated for that purpose.
However, as an exception, the maps to a scale oI/IO,OOOhave
been considered sufficient to show that part of the frontier formed
by the Meuseand the Scheldt.
The same is the case for the communes of Baarle-Nassau (Nether-
lands) and Baerle-Duc (Belgium)in regard to which the status quo
is maintained in virtue of Article 14of the Treaty of 5 November
1842.
A special map, in four sheets, comprising the whole survey,
plot by plot, of these two communes, has been drawn up to a
scale ofI/IO,OOOand to this map are annexed two separate sheets

9 showing, to the scale of 1/2,5oo, such parts of those two communes
as a smaller scale would not show clearly.

Article 2. Topographical maps, to the scale of I/IO,OOOd ,esigned
to showthe frontieras a whole andin relation to bordering localities,
have been prepared in sections, as follows:
On the Netherlands side, by means of survey maps, lists of
necessary to determine the frontier; spot, so far as these were
On the Belgian side, by means of survey maps and examinations
on the spot, covering the whole of the Belgian part.

These maps take in the whole of the frontier, to an average depth
of2,400 'aunes' (metres).

Article3. The descriptive minute, the detailed survey maps and
topographical maps, scale I/IO,OOO,prepared and signed by the
and shall have the same force and effect as though they weren
inserted in their entirety."

The descriptive minute referred to in Article 3 contains an article,
Article go, relating to the communes of Baerle-Duc and Baarle-
Nassau: this Article is referred to in the present Judgment as the
"Descriptive Minute". The special map relating to the disputed
plots, being one of the maps referred to in Articles I and 3, was
produced before the Court on behalf of the Belgian Government
at the hearing on 2 May 1959.
Article 14, paragraph 5, of the Boundary Convention provides:

[Translation]

"On reaching the said communes of Baerle-Duc and Baarle-
sibility of drawing a continuous line between these two communes,
in view of the provisions of Article 14of the Treaty of 5November
1842,which says:

'The statusquoshall be maintained both withregard tothe villages
of Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and
with regard to the ways crossing them.'
The division of these two communes between the two Kingdoms
is the subject of a special study.
(Article go of the Descriptive Minute.)"
The Descriptive Minute is made up of two parts. The first
determines the procedure used when the demarcation of the
frontier reaches the temtory of the communes of Baarle-Nassau

and Baerle-Duc. It reads as follows:
[Translation]
"As regards these two commdnes the boundary commissioners:

In view of Article 14 of the Treaty of 5 November 1842
worded as follows :
IO 'The status quo shall be maintained both with regard to the villages
of Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium) and with

regardto the ways crossing them.'
Considering that the present situation of these places, main-
tained by the provision of Article 14 above, does not allow of a
regular delimitation of the two communes in question;
Considenng, however, that it may be useful to note what was
established with the agreement of both sides, by the Minute
of 29 November 1836, agreed to and signed on 22 March 1841 by
the local authorities of the two communes.
Decide :

a. The above-mentioned Minute, noting the plots composing the
communes of Baerle-Duc and Baarle-Nassau, is transcnbed 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, on a scale of I/IO,OOO,
has been made, and to this map have been annexed two separate
sheets showing on a scale of 1/2,5oo those parts of the communes
which a smaller scale would not show clearly."

The second part, expressed in Dutch, follows the text of the
Communal Minute. Instead, however, of the words appearing in
the Communal Minute inthe copy thereof produced by the Nether-
lands, namely :

[Translation]
"Plots numbers 78 to III inclusive belong to the commune of
Baarle-Nassau",

there appears the following:
[Translation]

"Plots numbers 78 to go inclusive belong to the commune of Baarle-
Nassau.
Plots numbers 91 and 92 belong to Baerle-Duc.
Plots numbers 93 to III inclusive belong to Baarle-Nassau l."
The special map referred to in Article I of the Boundary Conven-

tion and which, in accordance with Article 3 thereof, has the same
force and effect as though inserted therein, shows the disputed plots
as belonging to Belgium.
The Belgian Government relies upon the above quoted terms of
the Communal Minute as they appear in the Descriptive Minute
annexed to the Boundary Convention and as having the same force
and effect as if inserted therein, for the purpose of showing that the

1 Translation of thetext reproduced in the Rejoinder of the Netherlands Govern-
ment, Vol. II, p. 79. The text reproduced in the Memorial of the Belgian Govern-
ment, p. II,is as follows:
[T~ansiation]
"Plots numbers 78 to go inclusive belong to the commune of Baarle-Nassau.
Plots numbers 91 and 92 belong to the commune of Baerle-Duc.
Plots numbers 93 toIII inclusive belong to the commune of Baarle-Nassau. "217 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)

disputed plots have thus been recognized as belonging to the com-
mune of Baerle-Duc. It follows, in its view, that in accordance with
the terms of the Boundary Convention sovereignty over these plots
belongs to Belgium.
On its side, the Netherlands Government itself claims to have a
title to sovereignty over the disputed plots and at the same time it
challenges the validity of the title invoked by the Belgian Govern-
ment. It relies upon the following grounds :
In the first place, it maintains that the Boundary Convention of
1843 did not by its terms do any more than recognize the existence
of the status quo and did not determine what that status quo was;

that accordingly the status quo miist be determined in accordance
with the Communal Minute under which sovereignty over the dis-
puted plots was recognized as vested in the Netherlands.

Alternatively, the Netherlands Government maintains that,
even if the Boundary Convention purported to determine the
sovereignty over the disputed plots, this was vitiated by mistake
and did not carry out the intention of the Parties. It contends that
a mere cornparisonbetween the terms of the CommunalMinute and
the Descriptive Minute establishes this. It states that it is not
necessary to establish the origin of the mistake because the mistake
itself is apparent on the face of the twodocuments. In support, how-

ever, of its contention that a mistake did occur, it advances an
hypothesis, as to the origin and consequences of the alleged mistake,
which wjll be adverted to later.

As a further alternative, the Netherlands Govemment submits
that, should it be held that the Boundary Convention determined
the sovereignty in respect of the disputed plots and is not vitiated
by mistake, acts of sovereignty exercised by it since 1843 over the
plots have displaced the legal title flowing from the Boundary
Convention and have established sovereignty in the Netherlands.
The Court will proceed to deal with these three grounds in the
order in which they have been presented by the Netherlands.

Did the Boundary Convention itself determine sovereignty over
the disputed plots or did it confine itself to a reference to theatus
quo?
At its 174th meeting held on IDecember 1841 the Mixed Boundary
Commission took note of the difficulty which had prevented it
from proceeding to a continuous boundary delimitation between
Baarle-Nassau and Belgium, which was due "to the very special
situation of the territories of Baarle-Nassau and Baerle-Duc which
consist of intermingled plots of land". It was decided to proceed to

the verification of the work of a Sub-Commission which had been
12deputed "to establish the sovereignty of each power over the plots
of land which form the territory of these communes".
The work and deliberations of the Sub-Commission are recorded
in what is known as the Achel Minute, dated 26 October 1841. The
Sub-Commission therein reported that because of the decision of
the Belgian Govemment that the status quo was to be maintained,
it was not able to apply to the "delimitation" between the com-
munes "the same methods and types of operations used for the rest
of the frontier line", and for that reason agreed to act as follows:

(a) "It not being possible to effect a delimitation properly so
called without infinite difficulty and serious drawbacks", al1 that
could be done was to "recognize and note" which were the plots
which belonged to the Netherlands and Belgium respectively.
(b) The Communal Minute should be taken as the basis for the

separation of the temtories of the two communes.
(c) It was therefore decided and accepted by both sides that the
territory of the Netherlands commune of Baarle-Nassau consisted
of certain enumerated plots or parts of plots and, in the same way,
the Belgian temtory of Baerle-Duc consisted of certain enumerated
plots or parts of plots. Under this enumeration, the disputed plots
were attributed to Baarle-Nassau.

At the 175th meeting of the Mixed Boundary Commission held on

2 December 1841 the examination and venfication was continued.
It was decided that the Achel Minute should be an annex to the
minutes of that meeting and that the proposals to be made for
Baarle-Nassau and Baerle-Duc bythe Mixed Boundary Commission
should be inserted textually in the minutes of the meeting. Under
the heading: "Separation of the territories of the communes of
Baarle-Nassau (Netherlands) and Baerle-Duc (Belgium)", para-
graph I reads :"It not being possible without the very greatest
difficulty to effect a delimitation properly so called as between
these two communes, al1 that can be done is to recognize and
designate the plots ...which belong respectively to the commune
of Baarle-Nassau (Netherlands) and the commune of Baerle-Duc
(Belgium) ."
At its 176th meeting held on 4 December 1841, after the Mixed

Boundary Commission had continued the examination and verifica-
tion of the work of the Sub-Commission and after discussion, the
following paragraph was added :
[Translation]

"Paragraph 2:
The plots which should belong to each of the two States are
therefore recognizedand designated by their number and Section
in the Survey asfollows:
13 Plots forming the commune of Baarle-Nassau (Kingdom of the
Netherlands)..."

Here they are set out and include the disputed plots.
[Translation]
"Plots forming the commune of Baerle-Duc (Kingdom of Bel-
gium) ...>

Here they are set out and do not include the disputed plots.

The Mixed Boundary Commission did not take up the matter
again until its 208th meeting, held on 23 February 1843. In the
meantime, the Treaty of 5 November 1842 had been ratified.
Up to this point of time, the following conclusionsemergefrom
a perusal of the Minutes:
From 4 September 1841, the work of delimitation proceeded on
the basis of the maintenance of the status quo. Because of this,
it was not possible to establish any regular and exact delimitation

of boundaries between the Netherlands and Belgium. Methods and
types of operation differing from those pursued in respect of the
rest of the frontierline had to be adopted to delineate the bound-
aries between the two communes and by so doing between the two
States. These methods and types of operation consisted of recog-
nizing and designating the plots which belonged to the Netherlands
on the one hand and Belgium on the other. For these purposes
a survey was used. The Mixed Boundary Commission carefully
examined and verified the work of separation of the territories of
the two communes. The Communal Minute was taken as the basis
of its labours.
When the work of delimitation of boundaries was resumed by the
Mixed Boundary Commission at its 208th meeting on 23 February
1843, it took note of the Treaty of 5 November 1842. Since the
Commission had, from 4 September 1841 onwards, based its
labours on the maintenance of the status quo and since the said
Treaty did not modify this position, it was agreed that the work
would begin with the definitive revision of its previous minutes
describing the boundary.
At the 209th meeting held on 3 March 1843, it was decided that
the Presidents of the respective Boundary Commissions should
take immediate steps for the preparation and for fair copies of
maps of the plots which had become necessary as the result of the
Treaty of 5 November 1842 and that the Descriptive Minute should
be revised and completed by one of several sub-commissions,which
should submit the result of its work for the approval of the Com-
mission.
The minutes of the 211th meeting of the Mixed Boundary Com-

mission held on g March 1843 indicate that it met to consider the
course which should be followed regarding the villages of Baarle-
14220 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI jg)
Nassau and Baerle-Duc, and that after discussion it was decided
that :

(1) The boundary of the communes should not be described, the
regular description of the boundary line should stop at a certain
point and be resumed again at a certain point; and

(2) The Descriptive Minute of the second section of the Con-
vention should include one or several articles referring, by their
numbers and section in the Survey, to al1 the plots of which the
sovereignty belongs to one State or the other, in conformity with
the minute of the 176th meeting.
The problem of the separation of the two communes had been
in the hands of a sub-commission. At its 220th meeting held on
27 March 1843, the Mixed Boundary Commission had before it a
draft proposed by that sub-commission. The discussion was to be

taken up at a future meeting. Ample notice of the draft which
subsequently came before the 225th meeting was thus given to
both Parties.
At that meeting held on 4 April 1843 the Mixed Boundary
Commission resumed consideration of the "description for the
communes of Baarle-Nassau and Baerle-Duc". It annulled its
Minutes of the 175th and 176th meetings which attributed the
disputed plots to the Netherlands. It adopted the text of an article
which provided, in the terms appearing in the first part of the Des-
criptive Minute, for the transcription word for word of the Com-
munal Minute and for the preparation of detailed survey maps.
Thereby it attributed the disputed plots to Belgium.
The importance of these detailed survey maps must have been

obvious to both the Netherlands and Belgian Commissions. The
Mixed Boundary Commission recognized the necessity for detailed
survey maps, which of their nature require most careful preparation
and checking. These maps, in which the disputed plots are shown
as belonging to Belgium, were designed to become and did become
part of the Convention and, in accordance with Article 3 thereof,
had the same legal force as the Convention itself. -
The Mixed Boundary Commission did not confine itself to a mere
reference to Article 14 of the Treaty of j November 1842 and to
the status quo whatever it was. From the record of its proceedings
as disclosed in the minutes, it appears that the Commission went
much further and proceeded to delimit the boundaries between

the two States in respect of the two Baarles in the only way which
was open to it.
In fact this was what the Commission had been doing from
4 September 1841 when Belgium declared in favour of the main-
tenance of the statzts quoas appears clearly from the letter from
the President of the Netherlands Commission of 16 December 1841
to the Netherlands Foreign Minister in which he stated: 221 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)
[Translation]
"the two sub-commissions, at the time of their work on the spot,
had therefore to confine themselves to drawing up a Minute of
Separation of the territories of the two enclosed communes and that
therefore they were not able to fix a continuous and uninterrupted
line between Baarle-Nassau and Belgium ...it was decided to recon-
sider the Minute of the Separation of the Territories, which was
previously establishedin agreement by the respective local adminis-
trators of the two communes ...so that if necessary the Minute in
question could be incorporated in the Boundary Conventian to be
drawn upand soas to decide which parts ofthese enclosedcommunes
should henceforward belong to the Netherlands and which parts
should belong to Belgium."

This letter, read together with that of the Burgomaster of
Baerle-Duc of 23 December 1841 to the President of the Belgian
Boundary Commission, where he speaks of studies and researches
then being camed out "to form the line dividing the plots in these
communes" and states that "there are certain disputed points in
the Minute of 22 March 1841 and it will be difficult to complete
the work because on a number of different points we and the com-
munal administration of Baarle-Nassau are unable to agree ...",
provides clear contemporaneous evidence of the nature of the task
on which the Mixed Boundary Commission was engaged.
The authority of the Mixed Boundary Commission to demarcate

the two communes was, in the view of the Court, beyond question.
It follows from Article 6 of the Treaty between the Netherlands and
a Belgium concluded at London on 19 Apnl 1839, which provides:
"In consideration of the temtorial arrangements above stated,
each of the two Parties renounces reciprocally and for ever, ali
pretension to the Territones, Toms, Fortresses, and Places, situated
within the limits of the possessions of the other Party, as those
limits are described in Articles1, 2and 4.
The said limits shall be marked out in conformity with those
Articles, by Belgian and Dutch Commissioners of Demarcation,
who shall meet as soon as possible in the tom of Maestricht."
This is confirmed by the Preamble to the Bouhdary Convention

of 8 August 1843, which recites that:
"...The King of the Netherlands ...and ...the King of the
Belgians, taking into consideration the Treaty of 19April 1839,
and wishing to fix and regulate al1that relates to the demarcation
of the frontier between the Kingdom of the Netherlands and the
Kingdom of Belgium, have for this purpose, and in conformity
with Article 6 of the said Treaty, appointed as their commissioners
the following: ..[the names ofthe Commissionersappointed follow] ."
This statement represents the common intention of the two
States. Any interpretation under which the Boundary Convention

is regarded as leaving in suspense and abandoning for a subsequent
appreciation of the status quo the determination of the right of one
16State or the other to the disputed plots would be incompatible
with that common intention.

The Court reaches the conclusion that the Boundary Convention
was intended to determine, and did determine, as between the two
States, to which State the various plots in each commune belonged.
Under its terms, the disputed plots were determined to belong to
Belgium .

The Court will now proceed to an examination of the contention
of the Netherlands that the Convention is vitiated by mistake.
This contention may be stated as follows:
The Descriptive Minute, after reciting "that it may be useful to
note what was established with the agreement ofboth sides, by the
Minute of 29 November 1836,agreed to and signed on 22 March 1841
by the local authorities of the two communes", stated that "the
above-mentioned Minute, noting the plots composing the communes
of Baerle-Duc and Baarle-Nassau,is transcribed word forword inthe
present Article". A comparison of the copy of the Communal Minute
producedby the Netherlands with the Descriptive Minute discloses
that there was not a "word for word" transcription of the former,
inasmuch as the Descriptive Minute attributed the disputed plots

to Belgium, whereas this copy of the Communal Minute attributed
them to Baarle-Nassau. Therefore, the Netherlands contends, it
followsthat there was a mistake and that that mistake vitiates the
Convention in this respect.
The Court does not consider that a mere cornparison of these two
documents establishes any such mistake. Under the terms of the
Boundary Convention, sovereignty over the disputed plots is
vested in Belgium. The only question is whether a mistake, such as
would vitiate the Convention, has been established by convincing
evidence.
To succeed on the basis of the alleged mistake, the Netherlands
must establish that the intention of the Mixed Boundary Com-
mission was that the Descriptive Minute attached to and forming
part of the Convention of 1843 should set out the text of the Com-
munal Minute contained in the copy produced by the Netherlands,
and that this intention was defeated by the transcription in the
Descriptive Minute of a different text, which, contrary to the text
of that copy and the intention of the Mixed Boundary Commission,
attributed the disputed plots to Baerle-Duc instead of to Baarle-
Nassau.
The duty of the Mixed Boundary Commission was to determine

and fix the limits of fhe possessions of the two States. So far as the
two communes were concerned, the essence of its task was to deter-
mine the status quo. In order to discharge its duty,the Commission,
directly and through sub-commissions, made examinations on the
17spot, had recourse to researches, records and surveys, verified the
findings of the sub-commissions and carefully checked its own
labours.
On 26 October 1841 the Commissioners delegated by the Mixed
Boundary Commission drew up the Achel Minute in which plots 91
and 92 were attributed to Baarle-Nassau. On the following day,
27 October 1831, the Belgian Commissioner, Viscount Vilain XIIII,
wnting fromAchel, addressed a letter to the Burgomaster of Baerle-
Duc. It read as follows:
"The boundary minute for the commune of Baarle-Nassau
shows, in the section known as Sondereggen, that the plots Nos. 91
and 92 belong to the commune of Baerle-Duc. Our commune's
minute does not mention them. Would you kindly reply to me at
Maastricht letting me know whether in fact these two plots belong
to Baerle-Duc."

The reply to this letter is not before the Court. But that a diver-
gence in fact existed in relation to plots 91 and 92 between the two
copies of the Communal Minute mentioned in that letter is con-
firmed by a letter of 31 October 1841 from the President of the
Netherlands Commission to the Netherlands Minister for Foreign
Affairs in which the former stated that "...at our meeting at Achel
on the 26th of this month, we signed the minute determining and
fixing the bounds of the two enclaved communes ...As regards
details, 1 have the honour to submit herewith a copy containing a
few forma1 changes ..."This copy was produced during the hearings.
It sets out a number of articles under the heading "Minute of the

separation between the terntories of the communes, etc.", Article 4
of which reads :

"It is therefore agreed and accepted, on both sides, by the
delegates of the Mixed Commissionthat the territories of the two
communes of Baarle-Nassau and Baerle-Duc consist of the plots
or parts of plots shown in the followingtabl..."

This table is in the form of vertical columns. Under Section A
Zondereygen appears the following:
Nos. of plots To the Netherlands To Belgium

62 to 67 inclusive entirely
68 to 77 inclusive entirely
78 to go inclusive entirely
91 and 92 entirely
93 to III inclusive entirely

Theattribution of the disputed plots to Belgium in this document
was different from the attribution made in the Achel Minute and
there can be little doubt that the reaçon was that the copy of the
Communal Minute then in the possession of the President of the
18Netherlands Commission attributed these plots to Baerle-Duc and
that in his report he followed the text of that copy.

The Court draws the conclusion from these documents that the
two copies of the Communal Minute held by the Netherlands and
Belgian Commissions were at variance on the attribution of the

disputed plots to the two communes. There is no satisfactory
explanation how a text-which according to the copy of the Com-
munal Minute produced by the Netherlands consists of one para-
graph reading "plots numbers 78 to III inclusivebelong to the com-
mune ofBaarle-NassauJ'-could havebyrnistake been broken upinto
three separate paragraphs giving a different attribution tothe dis-
puted plots.
The President of the Netherlands Commission had received a
copy of the Communal Minute which had not then been signed.
It was described by him in his letter to the Governor of North
Brabant of 16 March 1841 as "a most important document".
Later, he personally went to both communes and learned that the
Minute had been signed a few days before. To the copy which had
been sent to him he at once added the names of the signatones,
and it was "signed and stamped as being authentic by the munici-
pality of Baarle-Nassau". (Letter of 5April1841 from the President
of the Netherlands Commission to the Governor of North Brabant.)

The Netherlands has suggested that this copy contained in
manuscript not one but three paragraphs dealing respectively

with plots 78 to go, 91 and 92, and 93 to III as they appear in the
Descriptive Minute, but that this copy was not an authentic copy.
It suggests that the commune of Baarle-Nassau, when certifying
it as an authentic copy, could not suppose that an error had already
crept into it.A further collating of the two documents would, it
was urged by the Netherlands, have entailed a great deal of work.

To explain how the Netherlands Commission'sauthenticated copy
was in the same terms as those used in the Descriptive Minute, the
Netherlands advances the following hypothesis. The Controller of
the Survey at Bois-le-Duc (Netherlands) made a mistake in 1840
as to the numbers of the different plots, disregarding the fact
that a renumbering of plots had taken place in the Netherlands
survey, and altered a copy of the Communal Minute which copy
or a copy of it subsequently found its way to the Netherlands
Commission. In that copy the disputed plots were attributed, by
this official's mistake, to Baerle-Duc, in the form in which the
entry appears in the Descriptive Minute.

The material placed before the Court in support of this hypothesis
fails to establish it; nor does it appear to the Court that the

hypothesis is a plausible one. The Netherlands contends however that it need not establish
the origin of the mistake, since a simple comparison between the
copy of the Communal Minute produced by it and that appearing
in the Descriptive Minute reveals sufficiently that a mistake
occurred. The matter is not, however, capable of being disposed of
on this narrow ground. The Court must ascertain the intention of
the Parties from the provisions of a treaty in the light of al1 the
circumst ances.

As of Apri.11843,the position was as follows: Since October 1841,
both Commissions were in possession of copies of the Communal
Minute. These copies differed in relation to the attribution of the
disputed plots. This difference was known to the two Commissions
and must have been a subject of discussion between them in 1841.
The divergence between their copies could hardly have been over-
looked in April 1843 by the two Commissions and by their respect-
ive staffs. The divergence must have been known to the Mixed
Boundary Commission from 1841onwards. Detailed survey maps of
the commune ofBaarle-Nassau witha map ofthat part of Baerle-Duc
which was included therein according to the Communal Minute,
had been prepared by the Netherlands and placed at the disposal
of the Belgian Commission. Both sides could have had no doubt
that the Mixed Boundary Commission, in dealing with the two
Baarles, was itself determining the statusquo and was proposing
to fix the boundaries between the two States on that basis. It was
to decide which parts of these enclosed communes belonged to the
Netherlands and which parts belonged to Belgium.
The President of the Netherlands Commission had anticipated in
his letter of 16 December 1841 to the Netherlands Minister of For-
eign Affairs that a copy of the Communal Minute would be incor-
porated in the Boundary Convention to show-on the basis of the
maintenance of the statusquo-which parts of the two communes

belonged to the Netherlands and which parts belonged to Belgium.
The copy of the Communal Minute which he then had in mind to
be so incorporated was not, word for word, a copy of the Communal
Minute produced in these proceedings by the Netherlands. It could
only have been the copy which he then possessed, and which, as is
clear from his letter of 31 October 1841 to the Minister of Foreign
Affairs and as stated in the Descriptive Minute, attributed the
disputed plots to Belgium.
In the detailed map which was drawn up pursuant to the decision
of the Mixed Boundary Commission at its 225th Meeting and which
was to become part of the Boundary Convention, it was shown
clearly, and in a manner which could not escape notice, that the
disputed plots belonged to Belgium. They stood out as a small island
in Netherlands tenitory coloured to show, in accordance with the
legend of the map, that they did not belong to the Netherlands but
to Belgium. The situation of those plots must have immediately
arrested attention. This map, signed by the members of the res-pective Commissions, of its verÿ nature must have been the subject
of check by both Commissions against original documents and
surveys.

It is difficult to accept the view that an error was made in the
Descriptive Minute in the process of copying. The difficulty in the
way of the Court accepting such a view as a practical possibility

appears to have been appreciated by the Netherlands. In the case
put forward by it in its pleadings,it accordingly presented the argu-
ment that there was an error in the copy of the Minute in the hands
of the Netherlands Commission which had automatically repeated
itself, both in the word for word transcription of the Communal
Minute into the Descriptive Minute and in the detailed map,
without the error being discovered by the Mixed Boundary Com-
mission. The Descriptive Minute, it was argued, could never have
been checked, except perhaps against the allegedly incorrect Nether-
lands copy.
This explanation fails to have regard to the true funcfion of the
Mixed Boundary Commission and to the facts as they appeared to
it. The Commission was not a mere copyist. Its duty was to ascer-
tain what the status quo was. It had authority to fix the limits
between the two States, which dutyit discharged. At the 175th and
176th meetings of 2 and 4 December 1841, it was aware of the

discrepancy between the two copies of the Communal Minute. That
uncertainty still prevailed in the minds of both Commissions is
evident from the contemporaneous correspondence of December
1841 and January 1842. Each side was seeking further information.
Between the 175th and 225th meetings the Commission, by enquiries
on the spot and by recourse to records and surveys of hoth com-
munes, must have reached its own conclusion and determined, as
was its duty, what the status quo was in relation to the disputed
plots. At the 225th meeting, it must have decided that the status
quo was correctly stated in the copy then in the possession of the
Netherlands Commission and that it was this text-and not the
copy produced by the Netherlands before the Court-which was
to be transcribed word for word in the Descriptive Minute.
Consequently it annulled the hlinutes of its 175th and 176th meet-
ings and attributed sovereignty over the disputed plots to Belgiuin.
This decision found its expression in the Boundary Convention.

In the view of the Court, apart from a mere comparison of the
text of the Descriptive Minute with the copy of the Communal
Minute produced by the Netherlands, al1attempts to establish and
to explain the alleged mistake are based upon hypotheses which are
not plausible and which are not accompanied by adequate proof. The Boundary Convention of 1843 was the result of several years
of labour, with members of the Mixed Boundary Commission not
only in contact with the respective communal administrations but
also with the Governments of the respective States. According
to information furnished to the Court, copies of the text of the
Communal Minute to be incorporated in the Descriptive Minute,
and which was in fact incorporated therein, were signed by the
secretanes of each commune. The actual text transcribed wasaccord-

ingly known to both communes and both States.The Convention
was confirmed by the Parliament of each State and ratified in accord-
ance with their constitutional processes. Its terms have been
published in each State. For almost a century the Netherlands made
no challenge to the attribution of the disputed plots to Belgium.

The Court is satisfied that no case of mistake has been made out
and that the validity and binding force of the provisions of the
Convention of 1843 in respect of the disputed plots are not affected
on that account.

The final contention of the Netherlands is that if sovereignty over
the disputed plots was vested in Belgium by virtue of the Boundaq
Convention, acts of sovereignty exercised by the Netherlands since
1843 have established sovereignty in the Netherlands.

This is a claim to sovereignty in derogation of title established
by treaty. Under the Boundary Convention, sovereignty resided in
Belgium. The question for the Court is whether Belgium has lost
its sovereignty, by non-assertion of its rights and by acquiescence

in acts of sovereignty alleged to have been exercised by the
Netherlands at different times since 1843.

As to the question whether Belgium ever relinquished its sover-
eignty over the disputed plots, it is to be observed that Belgian
military staff maps since their first publication in 1874 have shown
these plots as Belgian territory. The plots were included in Belgian
survey records from 1847 to 1852, when one plot for some reason
was struckout but restored about 1890, since which time both have
continued to appear therein. Transfer deeds relating to one of the
plots were entered in the Records of the Survey authonties at
Baerle-Duc in 1896 and 1904.
In 1843, the plots were uncultivated land, of which one was
described by the Netherlands as being in 1860-1863 "a clearing of
heathland". The Netherlands state that since 1866 the use to
which both plots have been put has changed a number of times,
although the nature and dates of these changes are not stated.
Prior to 1906 some transfers of land were recorded in the Office228 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)
of Baarle-Nassau. In 1906 some houses were erected upon part of
plot 91 and thereafter further transfers of lands were recorded

in that Office. Since that time also, registrations of births,
deaths and marriages of inhabitants of these houses have been
entered in the Baarle-Nassau Communal Register. It is stated by
Belgium that these houses, constructed round the Baarle-Nassau
(frontier) station built by the Netherlands Government, were
occupied by Netherlands officials.

Some time after their erection, a Belgian inspector of survey,
having visited Baarle-Nassau, found that plots 91 and 92, entered
in the Belgian survey, were also entered in the Netherlands survey.
Officia1Belgian enquiries were then initiated, and finally, in July
1914, the Director of the Survey at Antwerp informed the Belgian
Minister for Finance that he thought it necessary for the matter
to be submitted to the Belgian Ministry for Foreign Affairs. The

First \Vorld War then intervened. In December 1919 the file was
transmitted to that Ministry.
Following examination by that Ministry, the Belgian Minister at
The Hague in August 1921 drew the attention of the Netherlands
Government to the fact that the two disputed plots and two other
plots belonging to Baerle-Duc were enteredin the survey documents
of both States. The Netherlands Minister for Foreign Affairs replied
on 6 October 1922, when he acknowledged that the t~7oother plots
were Belgian and should be struck out of the Netherlands survey
documents, but for the first time it was claimed that the Communal
Minute had been inaccurately reproduced in the Descriptive Minute
and that plots 91 and 92 belonged to the Netherlands. Since then,
sovereignty over these two plots has been the subject of dispute
between the two States.

The Netherlands relies, in addition to the incorporation of the
plots in the Netherlands survey, the entry in its registers of land
transfer deeds and registrations of births, deaths and marriages
in the communal register of Baarle-Nassau, on the fact that it has
collected Netherlands land tax on the twoplots without any resist-
ance or protest on the part of Belgium.
Belgium's reply is that it was quite unaware that tax was being
collected; that neither plot was under Belgian law liable to its
land tax, since both plots were until recent years uncultivated
and one of them was State property. This explanation is disputed
by the Netherlands Government.

Reliance is also placed by the Netherlands upon certain proceed-

ings taken by the commune of Raerle-Duc before a Breda tribunal
in 1851. These proceedingswere concerned with a proposed sale of a
large area of heathland over which the commune of Baerle-Ducclaimed to have certain rights of usufruct. This area included part
of the disputed plots.
A further act relied upon by the Netherlands is the sale by the
Netherlands State, publicly announced in the year 1853, of the
heathland above referred to. The Belgian Government states that
the fact that this area included a part of the disputed plots escaped
its notice.
The Netherlands also claims that Netherlands laws, more par-
ticularly in regard to rents, were applied to houses built on the
plots.
Finally, the Netherlands places reliance upon the grant of a
railway concession which related to a length of line, a small portion
of which passed through the disputed plots.

The weight to be attached to the acts relied upon by the Nether-
lands must be determined against the background of the complex
system of intermingled enclaves which existed. The difficulties
confronting Belgium in detecting encroachments upon, and in
exercising, its sovereignty over these two plots, surrounded as they
were by Netherlands territory, are manifest. The acts relied upon
are largely of a routine and administrative character performed by
local officials and a consequence of the inclusion by the Netherlands
of the disputed plots in its Survey, contrary to the Boundary Con-
vention. They are insufficient to displace Belgian sovereignty estab-
lished by that Convention.
During the years 1889 to 1892 efforts were made by the two
States to achieve a regular and continuous frontier line between
them in this region through exchanges of temtory. A new Mixed
Boundary Commission,which met during those years, finally prepar-
ed a Convention which was signed by the plenipotentiaries of the
two States in 1892, but which was never ratified. Under the terms
of the Convention, Belgium agreed to cede to the Netherlands,
intea rlia, the two disputed plots. The Netherlands urged that this

should not be read against it since the Convention was not ratified
and since little importance had attached tothe two plots in question
and it had allowed itself to be misled by the text of the Descriptive
Minute and the significance of any cession was not the subject of
consideration.
The unratified Convention of 1892 did not, of course, create any
legal rights or obligations, but the terms of the Convention itself
and the contemporaneous events show that Belgium at that time
was asserting its sovereignty over the two plots, and that the Nether-
lands knew it was so doing. In a letter of 20 August 1890, the Bel-
gian Minister for Foreign Affairs had informed the Netherlands
Minister in Brussels that an enclave,intersected bythe railway from
Turnhout to Tilburg, had been omitted from the list of temtories
to be ceded by Belgium to the Netherlands. This enclave comprised
the disputed plots; they were incorporated in the Convention of230 SOTrEREIGNTY OVER FRONTIER LAND (JUDGX~ENT 20 T71 59)
1892 and subsequently specifically covered by a separate Decla-

ration of December of that year. The Netherlands did not in 1892,
or at any time thereafter untilthe dispute arose between the two
States in 1922, repudiate the Belgian assertion of sovereignty.

Having examined the situation which has obtained in respect of
the disputedplots and the facts relied upon by the twoGovernments,
the Court reaches the conclusion that Belgian sovereignty estab-
lished in 1843 over the disputed plots has not been extinguished.

For these reasons,

by ten votes to four,
finds that sovereignty over the plots shown in thervey and known
from 1836 to 1843 as Nos. 91 and 92, Section A, Zondereygen,
belongs to the Kingdom of Belgium.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this twentieth day of June, one
thousand nine hundred and fifty-nine, in three copies, one of which
willbe placed in the archives of the Court and the others transmitted
to the Govemment of the Kingdom of Belgium and the Govem-
ment of the Kingdom of the Netherlands, respectively.

(Signed) Helge KLAEÇTAD,

President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.

Judge Sir Hersch LAUTERPACH mTakes the following Declaration :
1 have voted in favour of a decision determining that the sover-
eignty over the plots in dispute belongs to the Netherlands.
Article go of the Descriptive Minute of the Boundary Convention
of 1843, in assigning these plots to Belgizlm, purports to transcribe
word for word the Communal Minute between Baerle-Duc and
Baarle-Nassau which assigns these plots to the Netherlands. The
Netherlands has produced before the Court what it described as
one of the two original copies of the latter Minute. No other copy
of the original Minute has been produced before the Court. The

authenticity of the Minute produced by the Netherlands has not
25been challenged-though it has been alleged by Belgium that a
mistake had occurred in the course of transcribing it. On the other
hand, it has been alleged by the Netherlands that a mistake, in
the contrary direction, had occurred in the process of transcnbing
that document when the Descriptive Minute was adopted in 1843-
In the words of Counsel for Belgium, the accumulation of errors
in this case was such "as though some evil genius had presided
over the whole affair". 1 have formed the view that the evidence
submitted to the Court inthe shape of the formal Minutes, succinct
in the extreme, of the Boundary Commission and of fragmentary
correspondence lacking in sequence has not wholly dispelled the
impact of the confused situation thus created. The circumstances
of the adoption, in 1843, of the Descriptive Minute must, to some
extent, be in the nature of conjecture. In particular, it has not
been proved possible to state a direct conclusion as to the authen-
ticity or othenvise of the cardinal piece of evidence, namely, of the
only existing copy of the Communal Minute produced by the
Netherlands. Moreover, while the Commissioners who drafted the
Descriptive Minute enjoyed wide powers, they had no power to
endow with legal efficacy a document in which they purported to

transcribe word for word the Communal Minute and to observe
the status quo but in which they actually modified the Communal
Minute and departed from the status quo.The law knows of no such
power. For these reasons, 1 am of the opinion that the relevant
provisions of the Convention must be considered as void and
inapplicable on account of uncertainty and unresolved discrepancy.

The Special Agreement of 26 November, 1957 ,ubmitting the
dispute to the Court is by design so phrased as not to confine its
function to giving a decision based exclusively on the Convention
of 1843. By the generality of its terms it leaves it open to the Court
to determine the question of sovereignty by reference to allrelevant
considerations-whether based on the Convention or not. Accord-
ingly, in the circumstances, it seems proper that adecision be ren-
dered by reference to the fact, which is not disputed, that at least
during the fifty years following the adoption of the Convention
there had been no challenge to the exercise, by the Govemment
of the Netherlands andits officials,of normal administrative author-
ity with regard to the plots in question. In my opinion, there is no

room here for applying the exacting rules of prescription in relation
to a title acquired by a clear and unequivocal treaty; there is no
such treaty. It has been contended that the uninterrupted adminis-
trative activity of the Netherlands was due not to any recognition
of Netherlands sovereignty on the part of Belgium but to the fact
that the plots in question are an enclave within Netherlands tem-
tory and that, therefore, it was natural that Netherlands adminis-
26trative acts should have been performed there in the ordinary

course of affairs. However, the fact that local conditions have
necessitated the normal and unchallenged exercise of Netherlands
administrative activity provides an additional reason why, in the
absence of clear provisions of a treaty, there is no necessity to
disturbthe existing state of affairs and to perpetuate a geographical
anomaly.

-Ju-ge SPIROPOULOm Sakes the following Declaration
The international legal status of the disputed plots seems to me
to be extremely doubtful.
The facts and circumstances (decisions of the Mixed Boundary

Commission, letters, etc.) at the basis of the Belgian hypothesis
that the copy, which has not been produced before the Court, of
the Communal Minute of 1841 attributed the disputed plots to
Belgium or that the Boundary Commissioners had corrected it to
that effect-which facts go back more than a century-do not, in
my opinion, make it possible to conclude with sufficient certainty
that the Belgian hypothesis corresponds with the facts.
On the other hand, the thesis of the Netherlands to the effect
that an error crept into the Minute attached to Article go of the
Descriptive Minute of 1843 is also merely based on a hypothesis,
i.e. on the mere fact that the text of the Communal Minute of
1841 departs from the text of the Minute attached to Article go of
the Descriptive Minute of 1843.
Faced as 1 am with a choice between two hypotheses which lead
to opposite results with regard to the question to whom sovereignty
over the disputed plots belongs, 1 consider that preference ought
to be given to the hypothesis which seems to me to be the less
speculative and that, in my view, is the hypothesis of the Nether-
lands. For this reason1 have hesitated to concur in the Judgment
of the Court.

Judges ARMAND-UCOa Nnd MOREXO QUINTANAa,vailing them-
selves of the right conferred upon them by Article7of the Statute,
append tothe Judgment of the Court statements of their Dissenting
Opinions.

(Initialled) H. K.
(Initialled) G.-C.

Bilingual Content

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE
CONCERNING SOVEREIGNTY

OVER CERTAIN FRONTIER LAND

(BELGIU/NETHERLANDS)
JUDGMENT OF 20JUNE 1959

COUR INTERNATIONADE JUSTICE

RECUEIL DES ARRETS,

AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA

SOUVERAINETÉ SUR CERTAINES

PARCELLES FRONTALIÈRES
(BELGIQUE/PAYS-BAS)

ARRÊT DU 20 JUIN1959 lhis -Jutlgmcnt should be cited as follons:

"Case concerning Sovereignty over certain Frofztier Land,
J~lci'gme~ ft20 Juirc 1959: I.C.J. Reports 1959, p. 209."

Le prézent arrêt doit être cité comme suit :

(A8ail.e relative li In souveraigsz~rcertainesfiarcellesjrontalières,
Arrêtdu 20 juin I9j9: C. I. J. Recueil Ig.59,fi.209.))

/ Sales number 208 /
NO de vente : 19.59 INTERNATIONAL COURT OF JUSTICE
20June
General List:
No.38

YEAR 1959

20June 1959

CASE

CONCERNING SOVEREIGNTY

OVER CERTAIN FRONTIER LAND

(BELGIUM1NETHERLANDS)

Boundary Conventionof 1843 betweenthe Netherlandsand Belgium.-
Determinationof Frontier.-Squo.-Prooof mistake.-Acquisi-
tion of sovereignty,in derogationof Treaty.

JUDGMENT

Presen:PresidenKLAESTA D Vice-PresidZAFRULLA KHAN ;

JudgesBASDEVANT H,SCKWORTH W, INIARSKI,BADAWI,
ARMAND-UGOK NO, JEVNIKOS,ir Hersch LAUTERPACHT,
MORENO QUINTANA,CORDOVA W,ELLINGTOKNOO,SPIRO-
POULOSS ,ir Percy SPENDEDe$uty-RegistGARNIER-
COIGNET.

4 COUR INTERNATIONALE DE JUSTICE 1959
Le20juin
RBle général
no 38

ANNEE 1959

20juin 1959

AFFAIRE RELATIVE A LA

SOUVERAINETÉ SUR CERTAINES

PARCELLES FRONTALIÈRES

(BELGIQUE /PAYS-BAS)

Conventionde délimitationde 1843entrelesPays-Bas et l- Belgique.
Déterminationde la front-èStatuquo. - Preuved'une erreu-.

Acquisition dela souveren dérogatiau traité.

Présents M. KLAESTAD P,réside;tM. ZAFRULLA KHAN, Vice-
Président;M. BASDEVANT H,ACKWORTH W ,INIARSKI,

BADAWI,ARMAND-UGON K,OJEVNIKOV,Sir Hersch
LAUTERPACHT , M. MORENOQUINTANA, CORDOVA,
WELLINGTON KOO, S~IROPOULOS Si,r Percy SPENDER,
Juges;M. GARNIER-COIGNE Grefier adjoint.

4 In the case concerning Sovereignty over certain Frontier Land,

between
the Kingdom of Belgium,

represented by
M. Yves Devadder, Legal Adviser to the Ministry of Foreign
Affairs,

as Agent,
assisted by
Me Marcel Grégoire,of the Bar of the Brussels Court of Appeal,
as Advocate,

and
M. Louis Geeraerts, Inspector-General in the Ministry of Foreign
Affairs,
M. Alfred van der Essen, Director, Ministry of Foreign Affairs,

as Experts,

and
the Kingdom of the Netherlands,

represented by
M. W. Riphagen, Legal Advi;er to the Ministry of Foreign Affairs,

as Agent,

assisted by
Me C. R. C.Wijckerheld Bisdom, of the Bar of the Supreme Court
of the Netherlands,
as Counsel,

and
Me J.Schepel,ofthe Bar ofthe Supreme Court ofthe Netherlands,
MlleL. Lagers, Chief of Section, Ministry of Foreign Affairs,
as Experts,

composed as above,

deliversthe followingJudgment:
By a letter of 26 November 1957 received in the Registry on
27 November, the Minister for Foreign Affairsa.i. of the Netherlands
transmitted to the Registry a certified true copy of a Special

5 En l'affaire relativeà la souveraineté sur certaines parcelles
frontalières,

entre
le Royaume de Belgique,

représentépar
M. Yves Devadder, jurisconsulte du ministère des Affaires
étrangères,
comme agent,

assistéde
Me Marcel Grégoire,avocat à la Cour d'appel de Bruxelles,
comme avocat,
et de

M. Louis Geeraerts, inspecteur général au ministère des Affaires
étrangères,
M. Alfred van der Essen, directeur au ministère des Affaires
étrangères,
comme experts,

le Royaume des Pays-Bas,
représentépar
M. W. Riphagen, jurisconsulte du ministère des Affaires étran-

gères,
comme agent,
assisté de
MeC. R. C.Wijckerheld Bisdom, avocat àla Cour decassationdes
Pays-Bas,

comme conseil,
et de
Me J. Schepel, avocat à la Cour de cassation des Pays-Bas,

Mue L. Lagers, chef debureau au ministèredesAffairesétrangères,
comme experts,

ainsi composée,
rendZ'arrê stivant:

Par lettre du 26 novembre 1957 ,arvenue au Greffe le27novem-
bre, le ministre des Affaires étrangères.des Pays-Bas a transmis
au Greffe la copie certifiée conforme d'un compromis conclu entre
5 Agreement concluded between the Government of the Kingdom of
Belgium and the Government of the Kingdom of the Netherlands,
signed at The Hague on 7 March 1957, Articles 1 to IV of which
are as follows:

"ArticleI
The Court is requested to determinewhether sovereignty over the
plots shown in the survey and known from 1836 to 1843 as Nos. 91
and 92, Section A, Zondereygen, belongs to the Kingdom of Bel-
gium or the Kingdom of the Netherlands.

ArticleII

Without prejudice to any question as to the burden of proof, the
Contracting Parties agree, having regard to Article37 of the Rules
of Court, that the written proceeding should consist of:
I. a Memorial of the ~i&dom of Ëelgium to be submitted within
three months of the notification of the present Agreement to
the Court in pursuance of Article III below;
z. a ~ounter-~tkorial of the Kingdom of the Netherlands to be
submitted within three months of delivery of the Memorial
of the Kingdom of Belgium;
3. a Reply of the ~in~dim of Belgium followed by a Rejoinder
of the Kingdom of the Netherlands to be delivered within
such times as the Court may order.

Article II1
Upon the entry into force of the present Agreement, it shall be
notified to the Courtunder Article 40 of the Statute of the Court by
the Kingdom of the Netherlands.

Article IV

The present Agreement shall be subject to ratification.
The instruments of ratification shall be exchanged as soon as
possible in Brussels andthe present Agreement shall enter into force
immediately upon the exchange of those instruments."

The Minister for Foreign Affairs a.i.of theNetherlands attached to
his letter a certified true copy of the Certificate of the exchange of
instruments of ratification of the Special Agreement, which took
place at Rrussels on 19 November 1957.
Pursuant to Article 33, paragraph 2, of the Rules of Court, the
Registrar at once inforrned the Belgian Government of the filing of
the Special Agreement. In accordance with Article 34, paragraph 2,
of the Rules of Court, copies of it were transmitted to the other
Members of the United Nations and to non-Member States entitled
to appear before the Court.
By an Order of 12 December 1957 ,ime-limits for the filing of
the Memorial and Counter-Memorial were fixed in accordance with

6le Gouvemement du Royaume de Belgique et le Gouvemement du
Royaume des Pays-Bas, signé àLa Haye le 7 mars 1957 et dont les
articles1 à IV sont ainsi conçus:

« Article $remier

La Cour est priée dedéterminer si la souveraineté sur les par-
celles cadastrales connues de 1836 à 1843 sous les nos 91 et 92,
Section A, Zondereygen, appartient au Royaume de Belgique ou
au Royaunie des Pays-Bas.

ArticlII
Sans préjuger en rien de la charge de la preuve, les Parties con-
tractantes sont convenues, se référant à l'article 37 du Règlement
de la Cour, que la procédureécrite consisterait en:

I. un mémoiredu Royaume de Belgique devant êtresoumis à la
Cour dans les trois mois qui suivront la notification du présent
accord prévue à l'article III ci-après;
2.un contre-mémoire du Royaume des Pays-Bas devant être
soumis dans les trois mois qui suivront la remise du mémoire
du Royaume de Belgique ;
3. une réplique du Royaume de Belgique, suivie d'une duplique
du Royaume des Pays-Bas, devant être soumises l'une et
l'autre dans un délaià fixer par la Cour.

ArticleIII
Dès l'entrée en vigueur du présent accord, celui-ci sera notifié
à la Cour, conformément à l'articl40 du Statut de la Cour, par les
soins du Royaume des Pays-Bas.

ArticleIV

Le présent accordsera soumis à ratification.
Les instruments de ratification serontéchangésle plus tôt pos-
sible à Bruxelles et .le présentaccord entrera en vigueur immédiate-
ment aprèsl'échangedesdits instruments. ))

A la lettre du ministre des Affaires étrangères a. i. desPays-Bas
était jointe la copie certifiée conforme du procès-verbal d'échange
des instruments de ratification du compromis, échange qui a eu
lieu à Bruxelles le 19 novembre 1957.
Conformément à l'article 33, paragraphe 2, du Règlement, le
Greffe a notifié immédiatement au Gouvernement belge le dépôt du
compromis. Conformément à l'article 34, paragraphe 2, du Règle-
ment, des copies en ont éfétransmises aux autres Membres des
Nations Unies ainsi qu'aux Etats non Membres admis à ester devant
la Cour.
Par ordonnance du 12 décembre 1957, les délais pour le dépôt

du mémoire et du contre-mémoire ont été fixésen conformité des
6the proposalsmade by the Partiesin paragraphs Iand 2 of Article II
of the Special Agreement. At the request of the Netherlands
Government and with the agreement of the Belgian Government,
the time-limit for the Counter-Memorialwas extended by an Order
of 27 May 1958. The time-limits for the filing of the Reply and
Rejoinder were fixed by an Order of IJuly 1958.
These pleadings having been fded within the time-limits fixed by
these Orders, the case was ready for hearing on 31 March 1959.

Hearings were held on 27, 28 and 29 April and on 1,2, 4 and 5
May 1959,in the course of which the Court heard the oral arguments
and replies of M. Devadder and Me Grégoireon behalf of the Gov-
emment of the Kingdom of Belgium, and of M. Riphagen and
Me Wijckerheld Bisdom onbehalf ofthe Government of the Kingdom
of the Netherlands.
In the course of the written and oral proceedings, theollowing
submissions were presented by the Parties:
On behalf of the Belgian Government, in the Memorial:
May it please the Court to adjudge and declare that:

"sovereignty over the plots shown in the survey andnown from
the6Kingdom of Belgium".d 92,SectionA, Zondereygen, belongsto

On behalf of the Govemment of the Netherlands, in the Counter-
Memorial :
May it please the Court to adjudge and declare that :

1836etoi,184 3sNos. 91 ands 92,Section A, Zondereygen, belongs
to theKingdom of the Netherlands".

These submissions were maintained by the Parties in the Reply
and in the Rejoinder and during the oral proceedings.

By the Special Agreement the Court is requested to determine
whether sovereignty over the plots shown in the survey and known
from 1836 to 1843 as Nos. 91 and 92, Section A, Zondereygen,
belongs to Belgium or to the Netherlands.
The frontier between the two States in the area where the two
plots in dispute are situated presents certain unusual features.
Whilst the frontier in generalis a linear one, in the area north of
the Belaan town of Turnhout there are a number of enclaves
formed by the Belgiancommune of Baerle-Duc and the Netherlands
commune of Baarle-Nassau.

The territory of the Belgian commune of Baerle-Duc is not
continuous. It is made up of a series of plots of land, many of which propositionsfaites par les Parties aux paragrapIeet2 de l'arti-
cle II du compromis. A la demandedu Gouvernement des Pays-Bas

et avec l'accord du Gouvernement belge, le délai pour leontre-
mémoire a étéprorogé par ordonnance du 27 mai 1958.Les délais
pour le dépôt de la réplique et de la duplique ont étéfixéspar
ordonnance du I- juille1958.
Les pièces de la procédure ayant été déposéesdans les délais
prévus par ces ordonnances, l'affaire s'est trouvée en état d'être
plaidéele 31 mars 1959.
Des audiences ont ététenues les 27,28 et29 avril et leI-, 2,
4 et 5 mai 1959, durant lesquelles ont étéentendus en leurs plai-
doiries et réponses,pour le Gouvernement du Royaumede Belgiqu:
M. Devadder et Me Grégoire;pour le Gouvernement du Royaume
des Pays-Bas:M. Riphagen et Me Wijckerheld Bisdom.

Au cours de la procédure écrite et orale, les conclusions ci-après
ont étéprises par les Parties:
Au nom du Gouvernement belge, dans le mémoire:
Plaiseàla Cour dire et juger qu:

«la souverainetésur les parcelies cadastrales connues1836à
1843 sous lesnos91 et92,SectionA, Zondereygen, appartient au
Royaume de Belgique ».
Au nom du GouvernementdesPays-Bas, dans le contre-mémoire:

Plaise àla Cour déclarer et juger que:

«la souverainetésur les parcelles cadastrales connue1836 à
1843 sousles numéros91et 92,SectionA,Zondereijgen,appartient
au Royaume des Pays-Bas n.
Cesconclusions ontétémaintenues par les Parties dans la réplique

et dans la duplique, ainsi qu'au coursde la procédure orale.

Par le compromis, la Cour est invitée déterminer si la souve-
raineté sur les parcelles cadastrales connues de à 1843sous les
nos 91 et92, SectionA, Zondereygen, appartient à la Belgiqueou
aux Pays-Bas.
La frontière entre les deux États dans la régionoù sont situéesles
deux parcelles litigieuses présente certaines caractéristiques in-
habituelles. Alors que d'une manière générale la frontière est
constituée par une ligne continue, il existe dans la région au nord
de la ville belge de Turnhout un certain nombre d'enclaves formées
par la commune belge de Baerle-Duc et par la commune néerlan-
daise de Baarle-Nassau.
Le territoire de la commune belge deBaerle-Duc n'est pas d'un
seul tenant. Il est fait d'une sériede parcelles dont un grand nombre

7213 SOVEREIGNTY OVER FRONTIER LAND (JUDGMENT 20 VI 59)