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The “external status” of the International Court of Justice, and of its members and personnel, in their relations to the Netherlands

Published online by Cambridge University Press:  07 July 2009

Ko Swan Sik
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Type
Section B: Notes and Comments
Information
Netherlands Yearbook of International Law , Volume 2 , December 1971 , pp. 98 - 107
Copyright
Copyright © T.M.C. Asser Press 1971

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References

1. The proposal was made under Art. 70 of the Statute, which reads: “The Court shall have power to propose such amendments to the present Statute as it may deem necessary, through written communications to the Secretary-General, for consideration in conformity with the provisions or Article 69”. The matter was later included in the agenda of the 24th General Assembly as item 93. The Assembly, however, decided to defer discussion of the matter till its next session because of lack of time. During its 25th session the General Assembly again deferred the item to its next session for the same reason. See 7 U.N.M.C. (1970) No. 11 p. 101. The same happened during the 26th session: decision of 24 September 1971.

2. The present first sentence of Article 22 para. 1 reads: “The seat of the Court shall be established at The Hague”. The proposed amendment reads: “The seat of the Court shall be at The Hague or at such other place as shall at any time be approved by the General Assembly on the recommendation of the Court”. Cf. also Nisot, J., “Le siège de la Cour Internationale de Justice sera-t-il changé?”, 73 R.G.D.I.P. (1969) pp. 786–789.Google Scholar

3. Letter of 18 July 1969 from the Dutch Minister for Foreign Affairs to the President of the Court, see infra p. 145.

4. The Minister for Foreign Affairs during the debate on the 1969 draft budget for Foreign Affairs in the First Chamber on 24 and 25 June 1969, Hand. I 1968/69 pp. 906, 926, 943, 950.

5. See for the published correspondence and other documents, infra p. 145 ff and n. 20.

6. When the Council of the League discussed the matter on 5 June 1928 (see infra p. the Japanese delegate Adatci, formerly member of the Committee of Jurists, recalled that “attention had been given to this most delicate and important question, but no settlement had been possible”. O.J. (1928) p. 866.

7. See letter of 18 July 1969, infra p. 145.

8. Memorandum on the rank and title of judges, Acts and Documents concerning the Organisation of the Court, No. 2: Preparation of the Rules of Court, Series D No. 2 (1922) pp. 332–333.

9. 10th meeting, ibid. pp. 48–49. See also 3rd meeting, ibid. pp. 13–14, when it was decided to have the Registrar write the memorandum and to submit it to the Council of the League.

10. Council decision communicated to the Court by letter of 12 May 1922, see Fourth Annual Report of the P.C.I.J., Series E No. 4 (1928) p. 55Google Scholar; O.J. 1922 p. 568. Compare also Hudson, Manley O., The Permanent Court of International Justice, A Treatise, New York 1943, p. 326Google Scholar: “The Council was not disposed to view the matter very seriously …”.

11. Letter of 13 December 1927, C. 16.1928.V, O.J. 1928 p. 980.

12. See the list prepared by the Registrar in 1928 and printed in Fourth Annual Report, p. 59 n. 1. See also [First] Annual Report, Series E No. 1 (1925) pp. 103–104Google Scholar. The Twelfth Annual Report, Series E No. 12 (1935-1936) pp. 51–52Google Scholar mentions that “When a member of the Court dies, it has been the practice of the Netherlands authorities to allow the widow of the deceased to retain his immunities for a certain time; in a recent case, this practice was confirmed by a written communication”. Cf. Hudson, , Treatise p. 327 n. 7Google Scholar. “Salaries of members of the Court are exempt from taxation under the Assembly Resolution of 8 December 1920, and under the later resolutions; since 1936 also Art. 32 Statute”. According to Hill, M., Immunities and Privileges of International Officials, Washington 1947, p. 22Google Scholar “there were only two or three points that were not satisfactorily settled under the regime”. Such an unsatisfactory situation obviously existed so far as judges of Dutch nationality were concerned: On 9 October 1957 the Netherlands Supreme Court took a decision in a tax case concerning “a Dutch former member of the Permanent Court of International Justice”, obviously Van Eysinga. The decision is not published anywhere, though François commented upon it in an article entitled “Vrijdom van Belastingen”, 5 N.T.I.R. (1958) pp. 195–200.Google Scholar

13. Cf. Preuss, L., “Diplomatic Privileges and Immunities of Agents invested with Functions of an International Interest”, 25 A.J.I.L. (1931) pp. 694–710 at p. 707.Google Scholar

14. Text in O.J. 1928 p. 981.

15. It seems that during these months informal discussions had taken place but without result. This impression is conveyed by the wording of the letter from the Registrar to the Secretary-General of the League of 13 December 1937, supra n. 11.

16. Text in O.J. 1928 p. 982.

17. Fourth Annual Report pp. 53–54.

18. Resolution of 5 December 1927, 83rd meeting of the Twelfth Session, text in: Fourth Annual Report p. 54. The resolution was brought to the notice of the Netherlands Minister for Foreign Affairs by letter of 7 December 1927. As expressed in the Registrar's letter of 13 December 1927, infra n. 19, the Court then “had before it for the first time a document indicating the views of the Netherlands Government regarding its status”.

19. C.16.1928.V, O.J. 1928 p. 980. This letter has already been referred to, supra n. 11.

20. Text in O.J. 1928 pp. 982–984.

21. Reported in the letter from the Registrar to the Secretary-General of the League, dated 22 May 1928, text in Fourth Annual Report pp. 56–57. Cf. also infra n. 23.

22. 49th Session, seventh meeting, 9 March 1928, O.J. 1928 pp. 431–432.

23. Letter from the President of the Court to the Netherlands Minister for Foreign Affairs of 22 May 1928, as part of the subsequent exchange of notes, text in C.268.1928.V, O.J. 1928 p. 985, and in Fourth Annual Report pp. 61–62.

24. Text of the agreement in O.J. 1928 pp. 985–987; also in Fourth Annual Report pp. 57–63.

25. Supra n. 21.

26. Fiftieth Session, second meeting, 5 June 1928, O.J. 1928 p. 866.

27. See infra p. 107.

28. Treatise, pp. 327–328.

29. Covering the psriod of June 1939-December 1945, Series E No. 16, p. 11.

30. This last phrase may point to a general reluctance of the Netherlands to grant extensive privileges and immunities to international official of Dutch nationality.

31. As an organ of the U.N. the new Court got an additional basis for its privileges and immunities in Art. 105 of the Charter. See Rosenne, S.. The Law and Practice of the International Court. Vol. I, Leyden 1965, p. 217Google Scholar. See also “Official comments relating to the Statute of the proposed International Court of Justice”, 14 UNCIO p. 387 ffGoogle Scholar; summary of the third meeting of the U.N. Committee of Jurists, 14 UNCIO pp. 97–98; “Report on the draft of Statute of an International Court of Justice […] submitted by the U.N. Committee of Jurists to the U.N. Conference on International Organization at San Francisco”, 25 April 1945, 14 UNCIO p. 821 ff. at p. 832; summary report of the fourth meeting of Committee 1 of Commission IV of the UNCIO at San, Francisco, 13 UNCIO p. 154 ff.Google Scholar

32. See Rosenne, op.cit. Vol. 1, p. 39 ff.

33. Report of the Preparatory Commission of the United Nations, Ch. VII, para. 4 at p. 60.

34. A/C.6/33.

35. A.64.1946, text also in Yearbook 1946–1947 of the InternationalCourt of Justice p. 88.Google Scholar

36. Formulation used in the resulting exchange of letters.

37. Exchange of letters recording an agreement between the International Court of Justice and the Netherlands relating to privileges and immunities of members of the International Court of Justice, the Registrar, officials of the Registry, Assessors, the Agents and Counsel of the Parties and of Witnesses and Experts, The Hague, 26 June 1946, 8 U.N.T.S. p. 66 ff.

38. Doc. A/105 of 9 October 1946, in: G.A.O.R. 1st session, 2nd part, 6th Committee, Summary Records of Meetings 2 November - 13 December 1946. Annex 16. p. 246 ff.

39. See, however, the Van Eysinga-case mentioned supra n. 12. The 1946 arrangement has given rise to a decision by the Hague Court of Appeal, of 7 October 1965 (Beslissingen in Belastingzaken – Nederlandse Belastingrechtspraak 1966 No. 85)Google Scholar concerning the assessability of the old-age pension, paid by the U.N. Joint Staff Pension Fund to a former Netherlands official of the Court, living in the Netherlands. The Court held the opinion that “salaries” in Principle 2 para. 2 of the agreement, only refer to income received during the time that the person concerned was still working as one of the “officials of the Court”.

40. N.R.C.-Handelsblad, 19 March 1971, p. 4.

41. G.A.O.R. 26th session, supp. No. 5 (A/8405).