Diversion of Water from Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No.

70 (June 28)

[Principle on Equity / Clean Hands Doctrine]

It would seem to be an important principle of equity that where two parties have assumed an
identical or a reciprocal obligation, one party which is engaged in a continuing non-performance
of that obligation should not be permitted to take advantage of a similar non-performance of that
obligation by the other party.
It is in line with such maxims that "a court of equity refuses relief to a plaintiff whose conduct in
regard to the subject-matter of the litigation has been improper".

FACTS
 On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of
which was "to settle permanently and definitively the regime governing diversions of
water from the Meuse for the feeding of navigation canals and irrigation channels.

Article I of this Treaty provided for the construction below Maestricht, in

Netherlands territory, of a new intake, which would constitute "the feeding
conduit for all canals situated below that town and for irrigation in the
Campine and in the Netherlands.

 The Belgian Government accepted the Treaty not without reluctance, in view of the
fact that it provided for only one intake and that be situated in a foreign territory.
 When the economic development of the Belgian and Netherlands provinces of Limburg
necessitated the enlargement of certain canals and the construction of new works, the
two States signed in 1925 a new, agreement designed to settle the differences which
had arisen in respect of the construction programmes.
 However, the agreement was rejected by the Netherlands First Chamber and proceeded
to construct and complete the Juliana Canal, the Bosscheveld Lock and the Borgharen
barrage.
 On its part, Belgium began the construction of the Albert Canal, unfinished at the time
of the judgment, a barrage at Monsin and a lock at Neerhaeren.
 As no further progress could be made in the settlement of the points at issue between
the two States, the Netherlands initiated proceedings in the Court by means of a
unilateral application, based on the declarations made by both the Netherlands and
Belgium in which they accepted the compulsory jurisdiction of the Court under Article
36 (a) of the Statute. Belgium, on its part, made a counter-claim.
 In the course of the proceedings and at the suggestion of the Belgian Agent, which the
Netherlands Agent did not oppose, the Court visited the locality in order to see on the
spot the installations, canals and waterways to which the dispute related and to witness
practical demonstrations of the operations of locks and installations connected
therewith.
 The Court was asked to interpret an 1863 treaty relating to the regime of diversions
from the River Meuse.1 Belgium claimed that because The Netherlands had constructed
 certain works contrary to the terms of the treaty, The Netherlands should not be
permitted to invoke the treaty against Belgium.

SUBMISSION OF THE PARTIES

The Netherlands asked the Court:

1. To adjudge and declare that the works already carried out by Belgium were
contrary to the Treaty of 1863
2. That the proposed works would be contrary to it and, consequently, to "order
Belgium
a. To discontinue all the works" listed in the Netherlands' submissions
and "to restore to a condition consistent with the Treaty of 1863 all
works constructed in breach of that Treaty;
b. To discontinue any feeding held to be contrary to the said Treaty
and to refrain from any further such feeding.

On its part, Belgium asks the Court:

1. To declare the Netherlands' submissions ill-founded

2. To adjudge and declare, in respect of the counter-claim, that the Borgharen barrage
was constructed in breach of the stipulations of the Treaty of 1863
3. That the Juliana Canal is subject to the provisions of the Treaty and
4. To reserve the rights accruing to Belgium from the breaches so committed.

ISSUE:

Whether or not the Court may apply the principle of Equity in the case of alimentation of canals
by the functioning of the Neerhaeren Lock and the Bosscheveld Lock, which are considered
contrary to the Treaty of 1863?

SUMMARY OF JUDGMENTS:

Referring to The Netherlands‟ previous wrongful conduct, the Court concluded “[i]n
these circumstances, the Court finds it difficult to admit that The Netherlands are
now warranted in complaining of the construction and operation of a lock of which
they themselves set an example in the past.

As the moving Party, the Netherlands asks that the Belgian action with respect to
the operation of the Neerhaeren Lock be declared contrary to The Diversion of
Water from the Meuse, Netherlands vs. Belgium, Judgment, 28 June 1937, the
Treaty of 1863, and that Belgium be ordered to discontinue that action. Yet, in its
operation of the Bosscheveld Lock, the Netherlands itself is now engaged in taking
precisely similar action, similar in fact and similar in law. This seems to call for an
application of the principle of equity stated above.
In equity, the Netherlands is not in a position to have such relief decreed to her.
Belgium cannot be ordered to discontinue the operation of the Neerhaeren Lock
when the Netherlands is left free to continue the operation of the Bosscheveld Lock.
The general principle is a sound one that reparation is "the corollary of the violation
of the obligations resulting from an engagement between States" ; and "it is a
principle of international law, and even a general conception of law, that any breach
of an engagement involves an obligation to make reparation".

Here the Netherlands asks, not for reparation for a past violation of the Treaty of
1863, but for protection against a continuance of that violation in the future. The
Court is asked to decree a kind of specific performance of a reciprocal obligation,
which the demandant itself is not performing. It must clearly refuse to do so.

There can be no doubt as to the competence of the Court to render declaratory

judgments.

As a general rule, it would seem that a principle of equity applicable to a request for
an injunction should be applied also to a request for a declaratory judgment. Neither
request should be granted where the circumstances are such that the judgment
would disturb that equality which is equity.

In the circumstances of this case, on the assumption that the operation of both the
Neerhaeren Lock and the Bosscheveld Lock is contrary to the Treaty of 1863, the
Netherlands would not be entitled to a declaratory judgment for the same reasons
that it is not entitled to a mandatory judgment.