Abstract

The Scheldt is a transboundary river which originates in North-Western France and runs through Western Belgium and the South-West of the Netherlands. The Scheldt Estuary is shared between Belgium and the Netherlands. Since the separation of Belgium from the Netherlands in 1839, the free navigation of the Scheldt and the maintenance and improvement of the navigation channel have been a bone of contention and legal controversy.

In its weekly meeting of 9 October 2009 the Dutch Cabinet finally decided to compensate the loss of nature due to proposed dredging works in the Western Scheldt Estuary by means of flooding the Hedwige Polder. A controversy, because of strong opposition by the local population. The Cabinet concluded that no satisfying alternative was available. Flooding the polder will enable the Netherlands to fulfill its international and European treaty obligations on nature compensation and to ameliorate its relations with Belgium, especially the Flemish Region. Dutch Prime Minister Jan-Peter Balkenende also stated that the Government intended to carry an administrative procedure on the deepening of the Western Scheldt before the Dutch Council of State to a successful conclusion. Aiming at the positive effects of new special dredging techniques, he is hoping to win the case with a stronger defence.

A short history of the Scheldt River dispute

The Scheldt is a transboundary river which originates in North-Western France and runs through Western Belgium and the South-West of the Netherlands. The Scheldt Estuary is shared between Belgium and the Netherlands. The Dutch section of the estuary is called the Western Scheldt, and is of vital importance as navigation channel to the port of Antwerp. Since the separation of Belgium from the Netherlands in 1839, the free navigation of the Scheldt and the maintenance and improvement of the navigation channel have been a bone of contention and legal controversy.

The Separation Treaty of 1839 contains some important provisions for the freedom of navigation on the Scheldt: the Statute of the Western Scheldt. This statute applies Article 108 to 177 of the Final Act of the Vienna Congress (1815) to all trans-boundary watercourses that form or cross the Dutch-Belgian border. These articles deal with the freedom of navigation, and the obligation of the States to carry out the necessary works ('travaux nécessaires') for safeguarding the navigability of the river. Ever since the conclusion of the Separation Treaty, the interpretation of the words 'travaux nécessaires' has been the most important legal Scheldt issue between the two countries and even continues to be in present day negotiations.

Several attemps have been made to revise the Scheldt Statute, but it was not until 1994 that significant progress was made. Both countries negotiated a package of new water agreements in which the issue of deepening the Western Scheldt was linked to issues of water division in the Meuse River and of water pollution of both the Rivers Scheldt and Meuse. Belgian State reforms and the conclusion of the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes contributed to these developments.

In 1994 the Convention on the Protection of the Scheldt against Pollution was signed by France, the Netherlands and the Belgian Regions of Flanders, Wallonia and Brussels to improve water quality of the river. In 1995 Flanders and Netherlands agreed on the Convention on the Deepening of the Navigation Channel in the Western Scheldt.

Recent developments

A new Scheldt Convention was signed in 2002 to amend the 1994 Convention, thereby implementing new European Union community law, Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive). And finally in 2005 Flanders and the Netherlands reached agreement on a series of new treaties on the international management of the Scheldt Estuary, which enables an even further deepening of the navigation channel.

Clearly, all these developments have shed another light on the old Separation Treaty of 1839. Both parties do still interpret this Treaty differently as do various international lawyers, but new international and European environmental law demands a new approach. As a result a small polder, the Hedwige Polder, will be flooded to compensate loss of nature by deepening the navigation channel of the Western Scheldt.

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