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The Netherlands Constitution and International Law

Published online by Cambridge University Press:  28 March 2017

Jonkheer H. F. Van Panhuys
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Extract

On June 22, 1953, important amendments to the Netherlands Constitution concerning the administration of foreign affairs came into force. Among the most radical probably was the recognition by our Constitution of the primacy of international agreements and of decisions of international organizations over rules of municipal law. This spectacular innovation inspired the editors of the Chicago Daily Tribune, when announcing this event in their issue of December 12, 1952, to choose as a headline: “Less than a Nation.”

Type
Research Article
Information
American Journal of International Law , Volume 58 , Issue 1 , January 1964 , pp. 88 - 108
Copyright
Copyright © The American Society of International Law 1964

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References

1 “The Netherlands Constitution and International Law,” 47 A.J.I.L. 537 (1953).

2 See Explanatory Memorandum, Annexes to the Proceedings of the States-General (Bijlagen bij de Handelingen der Staten-Generaal; hereafter to be abbreviated as Bijlagen), Second Chamber (II), 1955-1956, 4133 (R 19), No. 3, with the Commission’s Report appended. References to the pages of the Commission’s Report are to the pages of this appendix. For a critical appraisal of that Report, see Van Eysinga in Nederlands Juristenblad, 1955, p. 615.

3 It should be noted in passing that a more general and systematic revision of the Netherlands Constitution, not restricted to specific topics such as the present subject matter, has been deemed desirable in various quarters. Although proposals to that effect were made by a commission appointed for that purpose by the Government, the ao-called Van Schaik Commission, this general revision came to nothing. So the general trend in The Netherlands seems to be that advantage is being taken of the regular elections of Parliament for introducing amendments of a fragmentary char acter only, as was also the case in 1956. Cf. 47 A.J.I.L. 537, 538 (1953).

4 Staatsblad (Bulletin of Acts and Decrees) 1956, Nos. 437 and 446. The complete text of the Constitution as amended in 1956 is to be found ibid., No. 472.

The English version of the relevant parts of the Constitution, Arts. 58-67, as they stand after amendment in 1956, is appended to the present article on page 107. For comparison with the text as it was before, see 47 A.J.I.L. 538 et seq. (1953).

5 See Panhuys, Van, “The International Aspects of the Reconstruction of the Kingdom of the Netherlands in 1954,” in 5 Netherlands Int. Law Rev. 1 et seq. (1958)Google Scholar; an English translation of the Charter is reproduced ibid, at 107.

6 Arts. 3 (1 b), 5, 24-29.

7 47 A.J.I.L. 542 (1953); see, on this and other proposals, Panhuys, Van, “De regeling đer buitenlandse betrekkingen in de Nederlandse Grondwet” (The Eegulation of International Belations in the Netherlands Constitution), Report to the Netherlands Branch of the International Law Association, Mededelingen van de Nederlandse Vereniging van Internationaal Recht, No. 34 (1955), p. 291 et seq. Google Scholar

8 Cf. Report referred to in previous note, p. 33. These proposals are of a similar tenor to the provision inserted in the Danish Constitution in 1953. Cf. Revue du droit public et de la science politique, 1954, No. 1, p. 78.

9 Expl. Memo. (4133 (R 19)), p. 1, in conjunction with the Report of the Commission, p. 9; see also Memo of Reply, First Chamber, p. 5.

10 See ad 4023 (R 10), first Bill, Bijlagen I, 1955-1956, No. 151, p. 4. The Government’s reply was a little hesitant, see ibid. No. 151a, p. 4.

11 Cf. 47 A.J.I.L. 543 (1953).

12 Tractatenblad (hereafter cited as Trbl.) (Netherlands Treaty Series), 1962, p. 77; 57 A.J.I.L. 493 (1963).

13 Cf. Green, “Armed Conflict, War, and Self-Defence, “ in 6 Archiv des Völkerrechts 388 (1956-1957).

14 The system adopted in the folio-wing sections of this paper implies that Art. 64, relating to accession to and denunciation of agreements, will receive no attention. This is no deadly sin, as its revision in 1956 was of a purely drafting nature, while in regard to its application nothing happened worth reporting here. See Report of the Commission and Explanatory Memorandum, cited note 2 above, ad Art. 64.

15 Proceedings First Chamber, 1955-1956, pp. 378 and 401; Expl. Memo, p. 3; Report of the Commission ad Art. 60.

16 Report of the Commission ad Art. 60 ; their suggestion was accepted by the Government on a proposal moved by the 2d Chamber, see Bijlagen 4133 (E 19) No. 9, and Proceedings 2d Ch. 1955-1956, p. 800.

17 Report of the Commission, ad Art. 62; Memo of Reply I, p. 5.

18 Cf. 47 A.J.I.L. 549 (1953).

19 Bijlagen II, 1955-1956, 4133 (R 19), No. 10; Proceedings I, p. 810.

20 Memo of Reply II, p. 4.

21 Expl. Memo, p. 4.

22 Trbl. 1959, No. 4. Provisions on the provisional application of multilateral treaties also occur; see, e.g., Art. 16(b) of an agreement, Sept. 7, 1956, on the European factory for isotopic separation of uranium, Trbl. 1957, No. 26; and the International Coffee Agreement, 1962.

23 A complete confusion existed, not only between members of Parliament and the Government, but also among the members of the Cabinet themselves as to the legal character of the decision to accelerate the realization of the Common Market adopted at Brussels on May 12, 1960, by “the representatives of the States members of the EEC assembled within the framework of the EEC Council of Ministers” (cf. Official Gazette of the European Communities, Sept. 12, 1960, p. 1217) : Was this a decision taken under Art. 14(7) of the E.E.C. Treaty, was it a binding agreement implementing Art. 15(2) of that Treaty, or, thirdly, was it rather a non-binding-agreement in the nature of a gentlemen’s agreement? Finally the Netherlands Minister of Foreign Affairs cut this Gordian knot by describing the decision as one which, not being a formal decision of the Council, should be regarded as a decision sui generis. Though stressing, on the one hand, that the decision had certain legal effects, he doubted, on the other hand, whether it was of such a nature that it could be enforced by the Court of the European Communities. Cf. Proceedings 2d Chamber, 1959-1960, pp. 1164, 1197, 1212-1213, 1227 and 1235. See also on this decision Catalano, Manuel de Droit des Communautés Européennes 31, note 1(1962).

24 Cf., e.g., the Protocol on the Provisional Application of the Statutes of the European School, Trbl. 1957, No. 246.

25 57 A.J.I.L. 244 (1963).

26 Decision of Dec. 10, 1954, referred to below in Part V, sub A ; see also note 56.

27 Trbl. 1961, No. 126.

28 See, e.g. Trbl. 1953, No. 108; 1954, No. 78; 1955, No. 76; 1956, No. 20; 1957, No. 135; 1958, No. 126; 1959, No. 69; 1960, No. 96; 1961, No. 78.

29 See, e.g., Trbl. 1958, No. 110; 1960, No. 116; 1961, No. 86.

30 Bijlagen, 2d Ch., 1954-1955, 3429, Doc. 4, and ibid., 1958-1959, 4401, No. 9.

31 Staatsblad 1954, No. 25, Art. 7 (European Defense Community) ; 1957, No. 493, Art. 6 (E.E.C.) ; 1957, No. 494, Art. 5 (Euratom). The E.C.S.C. Treaty was concluded and approved under the old constitution.

32 See, with regard to an agreement between The Netherlands and the United States of June 4, 1954, concerning the development of special weapons, allegedly tending to implement the Netherlands-U. S. Mutual Defense Assistance Agreement of Jan. 27, 1950, Bijlagen I, 1954-1955, 3700-III-115b-pp. 1 and 2. The Agreement of 1954 was confidentially communicated to the States-General.

33 See, e.g., Trbl. 1953, No. 133; 1954, No. 75; 1958, No. 101; 1959, No. 71.

34 Bijlagen I, 1954-1955-3700-III-No. 115, p. 15.

35 See note appended to Bijlagen I, 1953-1954-3200-III-117.

36 See 47 A.J.I.L. 539 (1953).

37 As to (a), see p. 92 above; as to (b), p. 100 below.

38 Art. 84, third paragraph. Although the Commission was no less of the opinion that the Eaad van State ought to be consulted, their proposals were technically different from the one made by the Government. See their Report, pp. 8 and 11.

39 The present author is indebted to Mr. M. J. Van Emde Boas, assistant lecturer at the University of Leyden, for having composed this diagram on the basis of data pub lished in the Jaarboek van het Ministerie van Buitenlandse Zaken, and for his valuable assistance also in other respects.

40 Cf. 47 A.J.I.L. 548 (1953).

41 Cf. on this matter, Van Panhuys, 5 Netherlands Int. Law Bev. 14-16 (1958).

42 See, on this matter, the Report of the Commission, p. 13, and for the opinion of the dissenting minority, p. 21. Cf. also, Memo of Reply, p. 2, Proceedings I, 1955-1956, p. 401. On the distinction between intrinsic and extrinsic unconstitutionality in relation to Art. 63, see 47 A.J.I.L. 551 (1953). As to the intrinsic unconstitutionality of agreements, the reader should also consult Section V below.

43 See also 47 A.J.I.L. 552 (1953).

44 Report of the Commission, p. 15, in conjunction with the Expl. Memo, p. 5.

45 See Art. 6 of the Act of Jan. 22, 1954, Staatsblad 1954, No. 25.

46 Art. 2 of the Act of Sept. 14, 1962, Staatsblad 1962, No. 363; see also note 12 above.

47 Italics added.

48 Art. 63 was not applied when, on Feb. 21, 1963, the Second Chamber approved the general Netherlands-German treaty of April 8, 1960, concerning the regulation of various matters, although this treaty provides for the retrocession to Germany of small portions of German territory assigned to The Netherlands in accordance with inter-Allied arrangements of 1949. The status of these areas was a provisional one, however. Cf. Trbl. 1960, No. 68.

49 In this sense Professor Samkalden in his capacity as member of the First Chamber, Proceedings 1961-1962, pp. 605-609.

50 Art. 67 (2) was not altered in 1956.

51 See Report of the Commission and Expl. Memo on Arts. 65 and 66.

52 This is the law enacted on June 22, 1961, Staatsblad, No. 207 ; so far it has not entered into force. During the parliamentary debate on the 1956 Revision, opinions appeared to be divided on the question as to how the situation was under the 1953 text, see Proceedings II, pp. 804 and 807 (1955-1956).

53 Cf. 47 A.J.I.L. 553 (1953).

54 Cf. the Commission’s Report, p. 14 ; a different opinion was voiced by a minority, ibid., p. 21.

55 Ibid., p. 23. The proposal suggested by the said minority, consisting of authorities in the field of public law, might well be compared to some parts of the Bricker Amendment in the United States. A provision of similar tenor is contained in Art. 29 (6) of the Irish Constitution.

56 Proceedings II, 1955-1956, pp. 801 and 803; the judgment has been reported ia 4 Nederlands Tijdschrift voor Internationaal Becht (Netherlands Int. Law Bev.) 85 (1957).

57 Cf., inter alia, cases reported in 5 Netherlands Int. Law Rev. 210 (1958) (Warsaw Convention on Air Transport) ; ibid. 394 (Treaty on Social Insurance) ; 4 ibid. 211 (1957) (Revised Convention of Mannheim concerning Navigation on the Rhine) ; 8 ibid. 289 (1961) (conflict between Hague Convention with regard to Divorce and Judicial Separation and Geneva Convention concerning the Status of Refugees) ; ibid. 190 (Bretton Woods Agreement).

58 Special attention should be drawn to divergent judicial decisions concerned with the relation of the Geneva Convention on Boad Traffic of Sept. 19, 1949, which became effective for The Netherlands on Oct. 19, 1952, to prior traffic legislation, including the Road Traffic Act. The true purport of this Convention gave rise to controversies. Some courts deemed that certain provisions of penal law were abrogated by the Convention in respect of persons entitled to its benefits. Others held that the Convention did not contain provisions of a self-executing nature and could not, therefore, be applied as a law. Some courts simply denied the existence of a conflict between the Convention and the said legal provisions. See 1 Netherlands Int. Law Rev. 328, 329 (1953-1954); 2 ibid. 208, 209 (1955); 4 ibid. 87 (1957); 8 ibid. 383 (1961).

59 See cases reported in 2 ibid. 296 (1955) ; 3 ibid. 167 (1956) ; 5 ibid. 392 (1958) ; 6 ibid. 194 (1959) ; 8 ibid. 194 (1961) (this case also related to the Netherlands-American Treaty of Friendship of 1956).

60 6 See, on this earlier case law, Erades and Gould, The Relation between International Law and Municipal Law in the Netherlands and in the United States 307-326 (1961).

61 6 Netherlands Int. Law Rev. 399 (1959). A different view was adhered to by Advocate General Langemeyer (as he then was), who gave a brilliant description of the concept of a self-executing agreement provision. Ibid. 402 et seq.

62 See Erades, Netherlands Int. Law Rev., loc. cit. 404, and Veegens in his note appended to the judgment in Nederlandse Jurisprudentie 1958, No. 424.

63 For an English translation of the Treaty, see Campbell and Thompson, Common Market Law, Text and Commentaries 206 (1962).

64 Meanwhile, a first set of implementation rules was issued, namely Eegulation No. 17, Feb. 6, 1962 (5 Official Gazette of the European Communities 204 (1962)), as amended (see ibid. 1655, 2751, 2918); cf. also Campbell and Thompson, op. cit. 447.

65 See cases reported in 6 Netherlands Int. Law Rev. 405 (1959) ; 9 ibid. 196 (1962). See also, President of the Hague District Court, Nov. 24, 1961, Nederlandse Jurisprudentie 1962, No. 57; Court of Appeal, Arnhem, ibid. 117; Court of Appeal, Amsterdam, as quashed by the Supreme Court Jan. 13, 1961, Nederlandse Jurisprudentie 1962, No. 245.

66 See decisions reported in 9 Netherlands Int. Law Rev. 198 (1962) (Robert Bosch GmbH et al. U. De Geus and Uitdenbogerd ; see in the same case the judgment of the European Court of April 6, 1962, 57 A.J.I.L. 129 (1963). The Court of Appeal at Amsterdam, in its decision, referred to in the preceding note, denied that Art. 177 should be construed as covering summary proceedings as well.

67 Case 26/62 ; digested below, p. 194. See also note on this case by Riesenfeld and Buxbaum, below, p. 152.

68 For the various decisions, see 2 Netherlands Int. Law Rev. 425 (1955); 6 ibid. 87 (1959); 7 ibid. 167 (1960).

69 For the text of the Convention and its additional Protocol, see 1 Yearbook of the European Convention on Human Rights 4 (1955-1956-1957) ; the Convention is also reprinted in 45 A.J.I.L. Supp. 24 (1951); for 1963 Protocols, see below, p. 331. For a critical analysis of the Dutch case law, see Van Emde Boas in 1962 European Yearbook (to be published).

70 Cf. also Röling, under Supreme Court, April 18, 1961, Nederlandse Jurisprudentie 1961, No. 273.

71 Cf. decisions of the Supreme Court of April 13, 1960, 8 Netherlands Int. Law Rev. 286 (1961) (General Old Age Pensions Act, entered into force on Jan. 1, 1957) ; April 18, 1961, 9 ibid. 315 (1962) (Shop Hours Act, 1951) ; May 5, 1959, 8 ibid. 73 (1961) (Act on the sale of Alcoholic Beverages of 1931) ; in none of these cases was a conflict between the Convention and the relevant legislation deemed to be present. In his decision of June 15, 1961, 9 ibid. 321 (1962), the President of the Court of Rotterdam, though expressly leaving open the question whether Art. 4 of the Con vention was self-executing, held that there was no conflict between that provision and a Decree on Labor Relations.

72 8 ibid. 285 (1961).

73 See, however, Ruling’s remark in his note to the judgment, Nederlandse Jurisprudentie 1960, No. 483.

74 March 8, 1961, 9 Netherlands Int. Law Rev. 317 (1962).

75 Cf. U. S. Supreme Court, 332 U. S. 633; and 44 A.J.I.L. 590 (1950); 46 ibid. 559 (1952).

76 Jan. 19, 1962, 9 Netherlands Int. Law Rev. 317 (1962) ; the judgment is diversely appraised, see Erades, ibid. 322.

77 47 A.J.I.L. 557 (1953).

78 Swiss Corporation S.A. Maritime et Commerciale v. The Netherlands, March 6, 1959, 10 Netherlands Int. Law Rev. 82 (1963) (an appeal for “revision” from the decision of the Supreme Court of Jan. 13, 1956, 3 ibid. 397 (1956)); cf. also, as being of a similar tenor as the 1959 decision, the Court of Appeal of The Hague, June 24, 1959, 8 ibid. 294 (1961), dealing with a possible conflict between legislation on alien enemy property and customary international law.

79 President of the Hague District Court, June 12, 1958, 6 ibid. 195 (1959) (Hurwits v. State of the Netherlands). Though admitting its self-executing character, the President construed the “Code” as being of no avail to Hurwits. In his decision the President referred to Art. 66 instead of Art. 67(2) of the Constitution. The Code of Liberalization was adopted under Art. 13a of the O.E.E.C. Treaty. Decisions made thereunder are often assimilated to international agreements; see Freymond in 11 Schweizerisches Jahrbuch für internationales Recht 70 (1954), and Elkin, 4 European Yearbook 125 (1958).