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The Iron Rhine Arbitration and the Emergence of a Principle of General International Law

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The Iron Rhine Arbitration and the Emergence of a Principle of General International Law THE IRON RHINE ARBITRATION AND THE EMERGENCE OF A PRINCIPLE OF GENERAL INTERNATIONAL LAW Christian Dominicé* I. An Important Decision rbitration has played, and still plays, a significant role in the development Aof international law. Some well-known arbitral awards are landmarks in the theory and the consolidation of international law. As a tribute to Judge Mensah for his contribution to the peaceful settlement of international disputes, I would like to discuss an important aspect of a recent arbitral award, one which is relevant for the theory of the sources of international law. I refer to the Iron Rhine arbitration, an award handed down on 24 May 2005 by an arbitral tribunal under the auspices of the Permanent Court of Arbitration.1 The parties to the arbitration were the Kingdom of Belgium and the Kingdom of the Netherlands. The dispute related to the Iron Rhine, which is a 162 km railway line linking the port of Antwerp (Belgium) to the Rhine Basin in Germany, via the Netherlands’ provinces of Nord-Brabant and Limburg. Article XII of the Treaty of Separation of 1839 conferred on Belgium a right of transit across Dutch territory and stipulated further details concerning this right. In 1873 a Convention between Belgium and the Netherlands provided inter alia for the passage of a railway line from Antwerp to Germany through Limburg (The Iron Rhine Treaty). The railway was duly constructed and completed in 1879. From that time until World War I, the railway was used continuously2 although after * The author would like to thank Mr Djacoba Liva Tehindrazanarivelo, Ph.D. in International Law (GIIS), for his valuable assistance in the preparation of this text. 1 The Arbitral Tribunal was composed of Judge Rosalyn Higgins (President), Professor Guy Schrans, Judge Bruno Simma, Professor Alfred A. H. Soons and Judge Peter Tomka. 2 A Railway Convention was concluded by the two Governments in 1897 to transfer the ownership of the track to the Netherlands. That ownership had previously been transferred Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, 1067–1076 ©2007 Koninklijke Brill NV. ISBN 978 90 04 16156 6. Printed in the Netherlands. IV. Environmental Law the War, it was used with varying intensity. The track was destroyed during World War II and although rebuilt, only light use was made of the line, which since 1991 has not been used for through traffic between Belgium and Germany. During the 1990s, the Netherlands took certain steps to designate nature reserves in the provinces of Nord-Brabant and Limburg. For its part, the Government of Belgium indicated its interest in the reactivation of the Iron Rhine Railway. Discussions between the two Governments led to the adoption of a Memorandum of Understanding (MoU) of March 2000 providing for the completion of certain environmental impact studies prior to any reactivation. Other aspects of the MoU gave rise to disagreement between the Parties, who decided in 2003 to submit their dispute to arbitration. The Arbitration Agreement raised three questions for determination by the Tribunal. They related: to the extent of the application of the Netherlands legislation and the decision-making power based thereon relative to the use and restoration of the historical route of the Iron Rhine Railway on Netherlands territory; to the various rights of Belgium on Netherlands territory with respect to works to be undertaken for the reactivation of the Iron Rhine Railway, as well as the right of Netherlands to require the building of underground and above-ground tunnels, diversions and the like; to the question of the costs to be borne by the Netherlands and Belgium. The most essential aspect of the Award is its contribution to the method of integrating international environment law in the decision-making process.3 It also discussed other important and interesting issues of international law.4 Of interest here is a problem of sources, namely the identification of the principles to be applied for solving the conflict between the right of transit of Belgium, as guaranteed by the Treaty of Separation, and the environmental requirements imposed by the Netherlands legislation. Dealing with the question of the interpretation of article XII of the Treaty of 1839, the Tribunal drew attention to the problem of inter-temporality in the interpretation of treaty provisions. Referring to article 31, paragraph 3(c) of the Vienna Convention on the Law of from the Belgian concessionaire to the Government of Belgium. 3 See V. Barral, “La sentence du Rhin de fer, une nouvelle étape dans la prise en compte du droit de l’environnement par la justice internationale”, 110 RGDIP, 2006, p. 647. 4 The question of the relationship to Community law was considered thoroughly, and also the question of whether or not limitations to territorial sovereignty should be interpreted restrictively. The discussion of the legal meaning of the MoU gave useful indications on the method to be used to identify the intention of the parties. The question of the method of interpreting treaties is given much consideration. But, above all, basic principles of international environmental law are put forward. On the relationship to EC law, see I. van Bladel, “The Iron Rhine Arbitration Case: On the Right Legal Track? An Analysis of the Award and of its Relation to the Law of the European Community”, 18 Hague Yb. Int’l L. (2005), pp. 3-22. 1068.
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