In the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands

Abstract

Arbitration — Dispute — Jurisdiction — Submission of dispute to Arbitral Tribunal — Belgium — Netherlands Arbitration Agreement 2003 — Applicable law — International law — Relevance of European law — Role of tribunal in relation to European Community law — EC Treaty, Article 292 — Arbitral Award — Allocation of costs — Committee of independent experts to quantify — Interpretation of Award

Treaties — Interpretation — Treaty of Separation, 1839, Article XII — Boundary Treaty, 1842 — Iron Rhine Treaty, 1873 — Rights and obligations of Parties — Legal significance of terms — Belgium’s transit right — Legal basis and scope — Vienna Convention on the Law of Treaties, 1969 — Articles 31 and 32 — Principles of interpretation — Ordinary meaning — Context — Good faith — Principle of effectiveness — Principle of restrictive interpretation — Relevance — Intertemporal rule — Evolutive treaty interpretation — Object and purpose of treaty — European law — General international law — International environmental law — Concepts of reasonableness, fairness and balance

Territory — Sovereignty — Separation of Belgium from Netherlands — Communication link between Antwerp and Germany — Article XII of Treaty of Separation, 1839 — Iron Rhine Treaty, 1873 — Netherlands conferring on Belgium right of transit over Netherlands territory — Extent of Netherlands’ sovereignty — Netherlands’ exercise of jurisdiction over Iron Rhine railway — Whether limited by Netherlands’ obligations under international law — Obligations of good faith and reasonableness — Whether Belgium’s right of transit circumscribed by requirements in Article XII of Treaty of Separation, 1839 — Whether Netherlands violating Belgium’s rights under Article XII of Treaty of Separation, 1839 — Netherlands designating the Meinweg as nature reserve — Whether legitimate exercise of Netherlands’ sovereignty — Whether duty to consult — Financial consequences

Environment — International environmental law — Development since 1972 Stockholm Conference — Duty to prevent or mitigate significant harm to environment — Need to reconcile economic development with protection of environment — Whether environmental protection measures integral part of reactivation project and costs

Relationship of international law and municipal law — Article XII of Treaty of Separation, 1839 — Netherlands’ obligations under Article XII — Measures envisaged by Netherlands for reactivation of Iron Rhine railway — Netherlands legislation — Whether Netherlands required to apply national legislation and policy with respect to Iron Rhine railway in more favourable way than to other railways in Netherlands — Whether such application amounting to denial of Belgium’s transit right — Whether rendering exercise of transit right unreasonably difficult