The Diversion of Water from the Meuse

Netherlands v. Belgium Judgment:  

An application instituting proceedings is filed in the Registry of the Court on August

1st, 1936, in accordance with Article 40 of the Statute and Article 32 of the Rules of
Court, the Government of the Kingdom of the Netherlands has instituted before the
Court proceedings in regard to the diversion of water from the river Meuse

According to the Application, the subject of the dispute is the question whether, on the
one hand, the execution by Belgium of various works in connection with the
construction of the Albert Canal and, on the other hand, the manner in which, without
the consent of the Netherlands, Belgium at present supplies and appears to intend in
future to supply with water existing or projected canals in the north of her territory, are
consistent with the rights ensuing to the Netherlands from the Treaty signed at The
Hague on May 12th, 1863, establishing the regime for taking water from the Meuse.

The Application asks the Court:

To adjudge and declare that: the works already carried out by Belgium were contrary
to the Treaty of 1863, 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 to declare the Netherlands' submissions ill-
founded, as well as 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,
that the Juliana Canal is subject to the provisions of the Treaty and, finally, to reserve
the rights accruing to Belgium from the breaches so committed.

The submissions presented in the documents of the written proceedings were

maintained in their entirety on either side at the oral proceedings.

THE COURT HELD THAT,

Since the questions at issue are governed by the Treaty of 1863, the Court at the outset
discards the application to the dispute of the general rules of international river law in
favour of the interpretation and application of the Treaty.

The Netherlands maintain that Article I of the Treaty, which provides for a single
feeder, situated in Netherlands territory, gives them the right to supervise and control
all the intakes, situated not only in their own territory, but also in Belgian territory.
This contention necessarily implies that "the Treaty of 1863 intended to place the
Parties in a situation of legal inequality by conferring on the Nether-lands a right of
control to which Belgium could not lay claim.
But, in order to allow the existence of such inequality between the Parties to a treaty
freely concluded, the text of the treaty must say so in precise terms. In the absence of
such terms, the Court rejects the Netherlands' submission.

While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands
do not invoke a specific provision of the Treaty. The Court grants that the Treaty has
brought into existence a certain régime which results from all its provisions taken
together and that, accordingly, it forms a complete whole, the different provisions of
which cannot be dissociated from the others and considered in isolation. This is
equally the case with Article I which must be interpreted together with the other
Articles.

In the light of this Article, thus interpreted, neither the Netherlands' contention
regarding the Neerhaeren Lock, nor the Belgian reply, can be accepted in its entirety.
Furthermore, the Court, after mentioning the construction by the Netherlands of the
Bosscheveld Lock, refuses to admit the Netherlands' complaint about the construction
and operation of a lock of which they themselves set an example in the past.

Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with
the Belgian counter-claims, the first of which concerns the Borgharen barrage. The
Court finds that the Treaty does not forbid the Netherlands from altering the depth of
water in the Meuse at Maestricht without the consent of Belgium, provided that neither
the discharge of water through the feeder, nor the volume of water which it must
supply, nor the current in the Zuid-Willemsvaart is thereby affected.

In reply to the second Belgian submission, which relates to the Juliana Canal, the
Court finds that the Treaty was designed to regulate the supply of water to the canals
situated on the left bank of the Meuse only. Thus, canals situated on the right bank,
such as the Juliana Canal, do not come under the regime of water supply provided for
by the Treaty.

For these reasons, the Court rejects both the Netherlands' submissions and the
submissions contained in the Belgian counter-claim.

United States v. Schooner Peggy

FACTS:
From 1798 to 1800 the United States and France were engaged in
many hostile Naval engagements.[1] According to the law at the time an
enemy vessel could be captured during time of war and then subject to seizure, a legal
process through which the vessel was determined to be property of the capturing party.
At the conclusion of the undeclared war with France a treaty was ratified that stated in
part:
“Property captured and not yet definitively condemned or which may be captured
before the exchange of ratifications (contraband goods destined to an enemy's port
excepted) shall be mutually restored. This article shall take effect from the date of the
signature of the present convention. And if, from the date of the said signature, any
property shall be condemned contrary to the intent of the said convention before the
knowledge of this stipulation shall be obtained, the property so considered shall
without delay be restored, or paid.”
The treaty was thus retroactive to all vessels that had been captured but for which their
seizure was not yet final.
David Jewett was authorized as commander of the Trumbull to capture any vessel
sailing under the flag of France. On April 24, 1800, it came upon the French
schooner Peggy and captured it. The Peggy was returned to Connecticut where the
local courts ruled her a prize of war in September 1800. The owners of
the Peggy appealed to the Supreme Court for her return.
THE COURT IS OF OPINION THAT,
The Schooner Peggy is within the provisions of the treaty entered into 'with France and
ought to be restored. This vessel is not considered as being definitively condemned.
The argument at the bar, which contends that because the sentence of the circuit court
is denominated a final sentence, therefore its condemnation is definitive in the sense in
which that term is used in the treaty, is not deemed a correct argument. A decree or
sentence may be interlocutory in the court which pronounces it, and receives its
appellation from its determining the power of that particular court over the subject to
which it applies, or being only an intermediate order subject to the future control of the
fame court. The last decree of an inferior court is final in relation to the power of that
court, but not in relation to the property itself, unless it be acquired under. The terms
used in the treaty seem to apply to the actual condition of the property and to direct a
restoration of that which is still in controversy between the parties.

It has been urged that the court can take no notice of the stipulation for the restoration
of property not yet definitively condemned, .that the judges can only enquire. whether
the sentence was erroneous when delivered, and that if the judgment was correct it
cannot be made otherwise by an) thing subsequent to its rendition.'
The constitution of the United States declares a treaty to be the supreme law of the
land. Of consequence its obligation on the courts of the United States must be
admitted. It is certainly true that the execution of a contract between nations is to be
demanded from, and, in the general, superintended by the executive of each nation,
and therefore, whatever the decision of this court may be relative to the rights of
parties litigating before it, the claim upon the nation if unsatisfied, may still be
affected.

But yet where a treaty is the law of the land, and as such that the rights of parties
litigating in court, that treaty as much binds those rights and is as much to be regarded
by the court as an act of congress; and although restoration only be an executive, when
viewed as a substantive, independent of, and unconnected with, other circumstances,
yet to condemn a vessel, the restoration of which is directed by a law of the land,
would be a direct infraction of that law, and of consequence, improper.

It is in the general true that the province of an appellate court is only to enquire
whether a judgment when rendered was erroneous or not. But if subsequent to the
judgment and before the decision of the appellate court, a law intervenes and
positively changes the rule which governs, the law must be obeyed, or its obligation
denied. If the law be constitutional, and of, that no doubt in the present case has been
expressed, I know of no court which can conflict its obligation. It is true that in mere
private cases between individuals, a court will and ought to struggle hard against a
construction which will, by a retrospective operation, affect the rights of parties, but in
great national concerns where individual rights, acquired by War, are sacrificed for
national purposes, the contract, making the sacrifice, ought always to receive a
construction conforming to its manifest import; and if the nation has given up the
vested rights of its citizens, it is not for the court, but for the government, to consider
whether it be a case proper for compensation. In such a cafe the court must decide
according to existing laws, and if it be necessary to set aside a judgment, rightful when
rendered, but which cannot be affirmed but in violation of law, the judgment muff be
set aside.

R v. Keyn
FACTS:
The prisoner was indicted at the Central Criminal Court for manslaughter. He was a
foreigner and in command of a foreign ship, passing within three miles of the shore of
England on a voyage to a foreign port; and whilst within that distance his ship ran into
a British ship and sank her, whereby a passenger on board the latter ship was
drowned. 

Young was a passenger by a British steamer called the Strathclyde, from London to

Bombay, and that when off Dover the Strathclyde was run into by a steamer called
the Franconia, whilst she was under the command and immediate direction of the
prisoner; whereby the Strathclyde was sunk, and Jessie Dorcas Young was drowned.
The Franconia was a German vessel, carrying the German flag. She sailed from
Hamburg with the prisoner, who is a German, in command, and a crew of seventy-
three, nearly all of whom were Germans, and a French pilot. She was carrying the
mail from Hamburg to St. Thomas in the West Indies, and put into Grimsby to take
on board an English pilot, whose duty it was to conduct her down channel as far as
the South Sand light; after which she would proceed to and touch at Havre, where
she would land the English pilot and the French pilot, whose duty it was to conduct
her from off Dungeness to Havre; and thence go to St. Thomas.
The Franconia had performed the same voyage six times.
The point at which the Strathclyde was run down by the Franconia was one mile
and nine-tenths of a mile S.S.E. from Dover pier-head, and within two and a half
miles from Dover beach.
At the close of the case for the prosecution, the counsel for the prisoner objected
that the Court had no jurisdiction. The learned judge, without expressing any
opinion, ruled that the Court had jurisdiction.
Witnesses were called for the prisoner. The jury found him guilty.
The question for the opinion for the Court for Crown Cases Reserved was
whether the Central Criminal Court had jurisdiction.

By the whole of the majority of the Court, on the ground that, the admiral had no
jurisdiction to try offences by foreigners on board foreign ships, whether within or
without the limit of three miles from the shore of England; that that and the
subsequent statutes only transferred to the Common Law Courts and the Central
Criminal Court the jurisdiction formerly possessed by the admiral; and that,
therefore, in the absence of statutory enactment, the Central Criminal Court had no
power to try such an offence.

On the other hand, the judgment delivered does not in any way interfere with the right of any
country to enforce within the three miles' limit such regulations as may be requisite for the
purposes of the police of the seas,—for keeping order, ensuring a conformity to sound rules
requisite for the safety of ships, and punishing breaches of such rules. This is as freely
granted by the majority of the Judges, as the various large restrictions on the absolute
territorial right over the belt of sea within the three miles' limit, is conceded by the minority.

Nevertheless, we conceive that the policy of the judgment is at least not less clear, probably
even clearer, than its legality. For the consequence of claiming criminal jurisdiction over the
crews and passengers of vessels in transition would in general be almost purely mischievous.
In the first place, a crew of one nationality cannot be expected to know the law laid down for
regulating their actions by another nation, and yet in merely embarking on board of one of
their own ships, they never dream that they are in need of the kind of circumspection and
deliberate accommodation of their actions to new habits of life, which a man who lands in a
foreign country must always be well aware that he has need of. If an English crew, for
instance, were led to suppose that in taking service in an English ship they were running the
risk of having their acts judged by the criminal law of any country —France, Spain, Italy,
Turkey—within three miles of whose shore they might happen to coast, they would hesitate
very much and very justly before taking such service at all.

 It is always wise to try men as far as possible by the law to which their habits and customs
have given birth ; and if for that reason only; it seems to us very fortunate that our Court has
decided that foreigners are not to be criminally liable to the English law for offences
committed within three miles of our coast, inspite of their complete ignorance -both of the
law which they bitty have transgressed, and of the habits and customs which gave birth to'
that law. On the whole, we regard the judgment in the Franconia ' case as, in policy, a very
fortunate, net less than, in all probability, legally a very sound decision.