No CrossRef data available.
Article contents
Netherlands judicial decisions involving questions of public international law, 1972–1973*
Published online by Cambridge University Press: 07 July 2009
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Documentation
- Information
- Copyright
- Copyright © T.M.C. Asser Press 1974
References
1. Stb. 1898 No. 113.
2. Stb. 1967 No. 139.
3. 330 U.N.T.S. p. 3; Trb. 1958 No. 145.
4. Discussed in Nederlands Juristenblad (1973) pp. 1264–1265 and by Voskuil, C.C.A. in 20 Nederlands Tijdschrift voor Internationaal Recht (1973) pp. 306–308Google Scholar. Notes by P. Zonderland on arbitration and H.F. van Panhuys on immunity in N.J. (1974) No. 361.
5. See 4. N.Y.I.L. (1973) pp. 390–391. The decision at first instance by the President of the Rotterdam District Court appears at 3 N.Y.I.L. (1972) p. 294.
6. Art. I (1) reads: “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.”
7. Art. I (3) reads: “When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.”
The declaration is included in Trb. 1964 No. 96.
8. Art. V (1) (e): “1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: … (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
9. Art. XVII of the agreement is rendered in the judgment of the Court of Appeal as follows: “Tous les différends et contestations pouvant naitre de l'exécution ou de l'application des clauses ou conditions régissant la présente convention seront soumis à l'arbitrage. Chaque partie désignera un arbitre dans un délai de 15 jours de la date à laquelle l'autre partie le lui aura demandé par lettre recommandée, en faisant en même temps connaitre son propre aibitre.
A défaut de la part d'une partie de nommer son arbitre dans le délai susindiqué, celui-ci sera nommé par le Président du Tribunal de Commerce ou, à défaut, du Tribunal Civil de Lausanne.
S'il y a mésentente entre les deux arbitres, ceux ci seront à nommer un tiers arbitre. En cas de désaccord entre les arbitres pour cette désignation, le tiers arbitre sera nommé par le même Président du Tribunal précité.
Les arbitres seront exempts de toutes formalités, ils pourront juger en aimables compositeurs et les décisions des arbitres et du tiers arbitre, suivant le cas, seront définitives et obligatoires pour les deux parties.
Les arbitres, éventuellement le tiers arbitre, devront sieger et prononcer leur sentence dans un délai d'un mois après l'invitation de l'une des deux parties contractantes.”
10. Art. 516 CPC: “le jugement arbitral rendu exécutoire et définitif a la même force et produit les mêmes effets qu'un jugement rendu par les tribunaux ordinaires.”
11. Stb. 1954 No. 596. Art. 37 (1) “The Netherlands, Surinam and the Netherlands Antilles shall consult each other as much as possible with regard to all matters in which the interests of at least two Countries are involved … (2) Matters referred to in this Article include among others: … (f) matters relating to aviation, including the policy with regard to unscheduled air transport;”
12. Act of 2 July 1959, Stb. 1959 No. 301. Art. 40: “When part of an income is received from an international organization and that part, by virtue of international legal provisions, is exempt from Dutch income tax levies, the income tax due on the remainder of the income will, except in so far as another method of calculation has been prescribed by those provisions, be the difference between the tax, calculated without account being taken of the exemption and the tax which according to the rules made by Our Minister should be ascribed to the exempted part of the income.”
13. Stb. 1963 No. 536. Art. 66 reads: “Legislation in force within the Kingdom shall not apply if its application would be incompatible with provisions, binding on everyone, of agreements entered into either before or after the enactment of such legislation.”
14. 200 U.N.T.S. p. 4; Trb. 1951 No. 139. Art. 19 reads: “Officials of the Organisation … shall be exempt from taxation on the salaries and emoluments paid to them by the Organisation in their capacity as such officials.”
15. See supra n. 12.
16. 510 U.N.T.S. p. 191; Trb. 1959 No. 181 pp. 14–18. Art. C 6 reads: “Officials of the Permanent Bureau shall enjoy exemption from Netherlands taxation, in respect of the salaries and emoluments paid by the Permanent Bureau, if such salaries and emoluments are subject to assessments payable to the Conference”.
17. See supra n. 12.
18. An internal tax imposed by the Conference.
19. Stb. 1964 No. 512.
20. Established by Convention of 5 October 1962, signed by France, Germany, Belgium, the Netherlands and Sweden. Purpose: promotion of astronomical research in the Southern Hemisphere. Text in 502 U.N.T.S. p. 274; Trb. 1962 No. 156.
21. Stb. 1965 No. 145. Article 2 exempts from tax income received outside the Netherlands so far as it “is subject to income tax in behalf of another State.”
22. Agreement of 6 November 1963, Trb. 1967 No. 50. The judgment gives the following English translation of Article VI: “… b. With regard to the possessions, funds and remuneration of the persons mentioned in the 1st paragraph of this Article, and to the members of their families, the Government shall apply the dispositions which the experts and functionaries of the Economic Commission for Latin America of the United Nations are enjoying under the Convention signed in Santiago, the 16th February 1953.”
23. 314 U.N.T.S. p. 49.
24. Decree of 19 September 1966, Stb. 1966 No. 387 as amended by Decree of 15 July 1969, Stb. 1969 No. 305, implementing the Aliens Act of 13 January 1965, Stb. 1965 No. 40. Art. 95 (1) reads: “A favoured EEC national may be refused a residence permit only where he constitutes a danger to public order, national security or public health.” Art 95 (4) reads: “For the purposes of sections 1 and 2, danger to or violation of public order or danger to national security is established exclusively on the ground of the conduct of the favoured EEC national. Where such conduct has led to conviction, the nature of the offence and the degree of punishment are to be taken into consideration.”
25. Stc. 1966 No. 188. Art. 20 (2) (a): “The preceding paragraph [refusal of residence permit] does not apply to aliens belonging to one of the following categories: a. favoured EEC nationals within the meaning of Art. 91 of the Aliens Decree;…”
26. Art. 91 (1) (a): “For the purposes of this Section shall be regarded as favoured EEC national: any alien who is a national of a Member State of the European Economic Community, and who is resident in or proceeding to the Netherlands in order to work there whether as a wage-earner or otherwise, or in the capacity of a person to whom services are rendered;”
27. Official Journal of the European Communities, Special Edition 27 March 1972 p. 196Google Scholar; Trb. 1972 No. 25 p. 350. “… the terms …” nationals of Member States “… wherever used in the Treaty … are to be understood to refer to: (a) persons who are citizens of the United Kingdom and Colonies or British subjects not possessing that citizenship or the citizenship of any other Commonwealth country or territory, who, in either case, have the right of abode in the United Kingdom, and are therefore exempt from United Kingdom immigration control;”
28. The President of the District Court refers to sections 1 (a) and 7 (2) of Part G - 5 (“Aliens of Chinese origin”) of the 16th Amendment of the “Aliens Circular”.
Section 1 (a): “… The following categories of Chinese are to be distinguished: a. holders of British passports who are favoured EEC nationals;…”
Section 7 (2): “Chinese who possess UK citizenship and who have the right of abode in the UK can, as EEC nationals, participate in the free movement of workers as from 1 January 1973. Such right appears from a separate notice in the passport.”
29. The Passport Regulations concerning Neth. passports issued abroad, 1952 has not been published. It is materially identical to the Passport Regulations for the Netherlands, 1952 [Paspoortinstructie Nederland, 1952] which was published in Stc. 1952 No. 132 (amendments in Stcs. 1954 No. 126, 1958 Nos. 31 and 148, 1959 No. 227 and 1972 No. 13). See Groenendijk, C.A., Op weg naar een Nederlandse Paspoortwet [Towards a Netherlands Passport Act] (Deventer: Kluwer, 1973) pp. 12–13.Google Scholar
Article 82 of the Instructions reads: “If the applicant possesses a foreign nationality in addition to Dutch nationality, and resides in the country of which he is also a citizen, his application shall be refused. This does not apply to a married woman whose husband possesses only Dutch nationality, is holder of a valid Dutch passport and lives at the same address as the applicant.”
30. 164 L.N.T.S. p. 223; Stb. 1933 No. 533. Art. 9 (2) reads: “2. Nevertheless, the salaries, wages or other emoluments of frontier workers of Belgian or Netherlands nationality shall be taxable only in the country in which the parties concerned have their fiscal domicile. The term ‘frontier workers’ shall be deemed to mean workers in industrial, mining, commercial or agricultural undertakings situate in either country, whose permanent home is in the other country, to which they return every day or at the last every week …”
31. Stb. 1964 No. 425. Art. 1 (1): “In the Netherlands, Surinam and the Netherlands Antilles, aliens … shall not be subjected to any taxation or related liability heavier than that to which Dutch nationals would be subjected … in similar circumstances.”
32. 593 U.N.T.S. p. 3; Trb. 1959 No. 85. Art. 24 (1): “Nationals of one of the Contracting States shall not be subjected in the other State to any taxation other or higher than to which the nationals of the latter State are subjected in similar circumstances …”
33. 298 U.N.T.S. p. 75; Trb. 1957 No. 91. Art. 7 (1): “Within the field of application of this Treaty and without prejudice to the special provisions mentioned therein, any discrimination on the grounds of nationality shall hereby be prohibited …”
34. With a note by Scheltens, J.P.. Discussed in 20 S.E.W. (1972) pp. 542–545Google Scholar; in Weekblad voor fiscaal recht (1972) pp. 881–884Google Scholar by R.L. van de Water; and in N.J.B. (1973) pp. 889–891 by C.H.F. Polak.
35. 189 U.N.T.S. p. 137; Trb. 1951 No. 131. Art. 12 (1): “The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.”
36. Stb. 1829 No. 28 and Stb. 1917 No. 303.
Art. 6: “Acts relating to rights, status and powers of persons are binding on Dutch nationals, even when they are abroad.”
37. 359 U.N.T.S. p. 273; Trb. 1965 No. 9. Art. 2 (1) reads: “Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of a least one year or by a more severe penalty …”
38. With a note by C. Bronkhorst. Summarized in 3 D.D. (1973) pp. 170–171.
39. Stb. 1967 No. 139. Art. 5 (1) (a) reads: “Extradition shall only be granted a) to assist criminal proceedings by the authorities of the requesting Party in connection with allegations that the person whose extradition is requested has been guilty of a criminal offence for which, under both the laws of the requesting Party and of the Netherlands, a prison sentence of at least one year may be imposed.”
40. On 31 January 1973, P. applied to the District Court of The Hague for an injunction preventing his surrender by the State of the Netherlands. The President refused the request.
41. Art. 1 reads: “No act shall be punishable other than by virtue of pre-existing criminal legislation. In the case of a change of legislation after the moment that the act was committed, those provisions shall be applied which are most favourable to the defendant.”
42. Art. 5 (1) (b): “Extradition shall only be granted a) … b) to carry out a prison sentence of four months or more within the territory of the requesting State in respect of an offence dealt with under (a).” (for (a) see note 39).
43. Stb. 1963 No. 536. Art. 4 (2): “The admission and expulsion of aliens and the general conditions under which, in respect of their extradition, treaties may be concluded with foreign Powers shall be regulated by law.”
44. Note by W.F. Prins. Summarized in 3 D.D. (1973) p. 282.
45. Stb. 1898 No. 113.
46. Summarized in 3 D.D. (1973) p. 558.
47. Art. 5 (3): “In the case of conviction and sentence in absentia [to a term of imprisonment of four months or more, to be served in the requesting State – Art 5 (1) (b) - Ed.] extradition will be allowed only when the person whose extradition is requested has been or will still be afforded sufficient opportunity to prepare his defence.”
48. 213 U.N.T.S. p. 221; Trb. 1951 No. 154.
49. 472 U.N.T.S. p. 185; Trb. 1965 No. 10.
50. 359 U.N.T.S. p. 273; Trb. 1965 No. 9.
51. Trb. 1962 No. 97. Art. 24 (2):
“Letters rogatory, for search or seizure of property shall only be executed for offences which under the present Treaty are extraditable.”
52. Art. 522 (o) (2): “… and that offence is sufficient for extradition to the requesting State.”
53. Bijl. Hand. II 1964/65 No. 8054.
54. Note by W.F. Prins.
55. See 4 N.Y.I.L. (1973) pp. 400–401.
56. Publicatieblad van de Nederlandse Antillen [Official Journal of the Netherlands Antilles] 1966, No. 17.
57. Art. 19: “(1) The Lieutenant-Governoi of the Island Area where the person concerned is staying may remove from the Netherlands Antilles: (a) any person who, in violation of the provisions relating to admission and expulsion, has entered the country;”
58. Stb. 1967 No. 176.
59. 213 U.N.T.S. p. 221; Trb. 1951 No. 154. For Articles 10 and 14, see under “Held”.
60. Summarized in 3 D.D. (1973) p. 220.
61. Art. 6 (1): “In the determination of his civil rights and obligations oi of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial on the interests of morals, public order or national security in a democratic society where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Art. 6 (3) (b): “… to have adequate time and facilities for the preparation of his defence;”
Art. 6 (3) (c): “… to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
62. Art. 394 reads as follows: “If the accused, on his first appearance in court, can prove that a deferment is necessary in the interests of his defence, the Judge shall stay the investigation for a period of time.”
63. See supra n. 61.
64. With note by Th.W. van Veen. Discussed by van Haaren, L. in 122 Algemeen Politieblad (1973) pp. 587–595Google Scholar in particular p. 594. Summarized in 4 D.D. (1974) p. 48.
Previous judgments were delivered by
1. District Court of The Hague, 2 November 1971, N.J. (1972) No. 13.
2. Court of Appeal, The Hague, 17 March 1972, N.J. (1972) No. 262.
3. Supreme Court, 3 July 1972, N.J. (1973) No. 78.
4. Court of Appeal, Amsterdam, 28 December 1972, N.J. (1973) No. 79 (after referral back by the Supreme Court).
65. 213 U.N.T.S. p. 221; Trb. 1951 No. 154.
Art. 5 (1) (d): “I Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose at bringing him before the competend legal authority;“ Art. 8 (1): “Everyone has the right to respect for his private and family life, his home and his correspondence.”
66. 11 European Yearbook (1963) p. 331Google Scholar; Yearbook of the European Convention on Human Rights (1963) p. 14Google Scholar; Trb. 1964 No. 15.
Art. 2 (1): “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”
67. G.A. Resolution 1386 (XIV); Yearbook of the United Nations (1959) pp. 198–199Google Scholar; De Veertiende Algemene Vergadering van de Verenigde Naties (Ministry of Foreign Affairs publication on No. 63) pp. 377–379.Google Scholar
68. Summarized in 3 D.D. (1973) p. 169.
69. Discussed by G. Larimers in M.R.T. (1973) p. 386.
70. The Netherlands military authorities derived their military jurisdiction in the present case and the following two cases from the provisions of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces of 19 June 1951 (199 U.N.T.S. p. 67, Trb. 1951 No. 114) and from the Supplementary Agreement of 3 August 1959 (Trb. 1960 No. 37). The extraterritorial effect of the Dutch military criminal law is laid down in Art. 4 of the Code of Military Criminal Law.
71. Note by W.H. Vermeer. Appeal from a judgment of the Air Force Mobile Court Martial of 15 June 1971, M.R.T. (1972) p. 151. The acting Public Prosecutor to the Supreme Military Court [Wnd. Advocaat Fiscaal] considered the Road Traffic Act applicable. See M.R.T. (1972) pp. 155–166.
72. According to Art. 95 of the Act on the Organisation of the Judiciary (Stb. 1827 No. 20) the Attorney-General to the Supreme Court may “in the interest of law” appeal in cassation to the Supreme Court against decrees and decisions of Courts of Appeal, District Courts and Local Courts (cassatie in het belong der wet). This provision aims to bring about uniform application of the law. Such a decision of the Supreme Court does not affect the rights of the parties (art. 98 of the Act on the Organisation of the Judiciary).
73. Stb. 1963 No. 228. Art. 6 provides that the injured party may recover damages directly from the insurer.
74. Summarized in 3 D.D. (1972) p. 481.
75. Summarized in 3 D.D. (1973) p. 110.
76. Annex to the Convention on the Safety of Life at Sea, 1960; 536 U.N.T.S. p. 27; Trb. 1961 Nos. 83 and 84 (Regulations).
77. Stb. 1963 No. 27.
78. Discussed by Altes, A. Korthals in Prijs der Zee, (Zwolle: Tjeenk Willink, 1973) pp. 231–232.Google Scholar
79. Conventions on Collisions and Assistance at Sea, De Martens N.R.G. series 3, vol. VII, p. 711; Stb. 1913 No. 74.
80. 191 U.N.T.S. p. 20; Stb. 1949 No. J 586 p. 296.
81. Stb. 1963 No. 563.
Art. 65: “The provisions of agreements which by virtue of their terms may be binding on everyone shall have this binding effect as from the time of publication. Rules with regard to the publication of agreements shall be laid down by law”
Art. 66: “Legislation in force within the Kingdom shall not apply if its application would be incompatible with provisions, binding on everyone, of agreements entered into either before or after the enactment of such legislation.”
82. The Editors of Schip and Schade mention:
(a) Treaty with Belgium of 19 April 1839, Stb. 1839, No. 26.
(b) Treaty between Belgium and the Netherlands concerning the illumination and beaconing of the West Scheldt and its estuaries of 23 October 1957, Trb. 1957 No. 221.
83. Stb. 1965 No. 133.
84. Stb. 1954 No. 376.
85. Art. 381 (1): “Any person who as shipmaster serves on or takes service on a vessel, knowing that it is to be used, or using it to commit, on the high seas, acts of violence against other vessels or against persons or property on such vessels without being so authorised by a State at war or by being a member of the navy of a recognised State, shall be punishable for piracy at sea by imprisonment not exceeding twelve years.”
Art. 383: “Any person who, for his own account or for a foreign account, equips a vessel or aircraft for the purposes defined in Art. 381, shall be punishable by imprisonment not exceeding twelve years”.