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Netherlands judicial decisions involving questions of public international law, 1989–1990*
Published online by Cambridge University Press: 07 July 2009
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References
1. Note by Verhey, L.F.M. and Vermeulen, B.P., summarised in NJB (1990) p. 720 (No. 88).Google Scholar
2. 993 UNTS p. 3; ILM (1967) p. 360; Tib. 1969 No. 100. Art. 7 reads: ‘The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work.’
3. Art. 93 reads: ‘Provisions of treaties and ofresolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.’
4. 359 UNTS p. 89; ETS No. 35; Trb. 1963 No. 90.
5. See 21 NYIL (1990) p. 437.Google Scholar
6. Art. 2 reads: ‘(1) Bach State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means including particularly the adoption of legislative measures. (2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (3) Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.’
7. Advocate-General Mok referred in his advisory opinion (consideration 4.24), which was couched in the same terms, to the judgment of the Central Appeals Court dated 16 February 1989, 21 NYIL (1990) p. 375Google Scholar. He considered that the distinction made in the judgment of the Central Appeals Court went too far. In his view, a treaty provision within the meaning of Art. 94 of the Constitution was either binding on all persons or not binding on all persons (the opinion is printed under AB (1990) No. 338).
8. Note by de Waart, P.J.I.M., summarised in NJB (1990) p. 118Google Scholar (No. IS) and NIPR (1990) No. 321. Discussed by Dekker, I.F. and Schrijver, N.J. in AA (1990) Katern p. 1588Google Scholar, by Bamhoorn, L.A.N.M. in ‘Staatsimmuniteit en ontslag “for security reasons”’ [State immunity and dismissal far security reasons] NJB (1990) pp. 1345–1350Google Scholar, and by Kooijmans, P.H. in Tijdschrift voor Vennootschappen, Verenigingen en Stichtingen (1990) pp. 179–181.Google Scholar
9. ILM (1972) p. 470; ETS No. 74; Trb. 1973 No. 43.
10. ILC Yearbook 1986 Vol. E part 2 p. 10; ILM (1987) p. 265.
11. Institute's Collection No. 2697; discussed by de Muralt, R.W.G. in ‘De Nederiandse rechtspraak m.b.t. buitenlandse ambassades en consulaten' [Dutch judicial decisions on foreign embassies and consulates], NJB (1987) pp. 1191–1194 at p. 1192.Google Scholar
12. Institute's Collection No. 3039.
13. 500 UNTS p. 95; Trb. 1962 No. 101.
14. Art. 13 reads: ‘Contracts of employment–(1)Unless otherwise agreed between the States concerned, the immunity of a State cannot be invoked before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for services performed or to be performed, in whole or in part, in the territory of that other State, if the employee has been recruited in that other State and is covered by the social security provisions which may be in force in that other State. (2) Paragraph 1 does not apply if: (a) the employee has been recruited to perform services associated with the exercise of governmental authority; (b) the proceeding relates to the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time the proceeding is instituted; (e) the employee and the employer State have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.’
15. Art. S reads: ‘(1) A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum. (2) Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceedings are brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter…’ The Sub-District Court used the Dutch translation.
16. 10 NYIL (1979) pp. 290–296.Google Scholar
17. The Sub-District Court of The Hague also declared itself competent in the cases of M.F. (a person of Ethiopian nationality employed as a chauffeur by the Embassy) v. Kuwait, 31 August 1988, Institute's Collection No. 3123; V.A.A. (employed as a chauffeur by the Embassy) v. Kenya, 4 April 1989, NIPR (1989) No. 308 (upheld by the District Court of The Hague on 16 May 1990, De Praktijkgids (1991) No. 3383 (1991) No. 164) and A.F.O. (a person of Portuguese nationality employed as a housekeeper by the Embassy) v. Cuba, 24 January 1990, Institute's Collection No. 3191. In both the Kuwaiti and Kenyan Embassy cases, the Sub-District Court held that the termination of the employment was not null and void on the ground of the absence of a permit from the Director of the Local Employment Office (as referred to in Art. 6 of the Extraordinary Labour Relations Decree). In the Kenyan and Cuban cases, the Sub-District Court then applied Dutch law, but Kuwaiti law was applied in the case of the Kuwaiti Embassy. Only in the Cuban case was the claim allowed by default. For earlier cases see also 10 NYIL (1979) p. 442Google Scholar, 19 NYIL (1988) pp. 435 and 438 n. 27Google Scholar and 20 NYIL (1989) p. 297.Google Scholar
18. Art. 39 of the Judiciary Organisation Act provides that the Sub-District Court is competent in employment disputes and Art. 125(b)confers jurisdiction on the Sub-District Court within whose area the employment is performed or the other party has his place of residence.
19. Art. 13a reads: ‘The judicial jurisdiction of the courts and the execution of court decisions and of legal instruments drawn up by legally authorised officials [authentieke akte] are subject to the exceptions acknowledged under international law.’
20. Note by Vranken, J.B.M., summarised in NJB (1990) p. 117 (No. 13).Google Scholar
21. Art. 68 of the Constitution reads: ‘Ministers and State Secretaries shall provide, either orally or in writing, the Chambers, either separately or in joint session, with any information requested, provided that the provision of such information cannot be deemed to conflict with the interests of the State.’
Art. 98 of the Criminal Code reads: ‘(1) Any person who intentionally communicates to or puts at the disposal of an unauthorised person or body any information in respect of which secrecy should be preserved in the interests of the State or its allies, including any object from which such information could be derived, shall – if he knows or may reasonably be expected to know that such information is involved – be liable to a term of imprisonment not exceeding six years or a fifth-category fine. (2) Any person who intentionally communicates to or puts at the disposal of any unauthorised person or body any information emanating from a prohibited place and relating to the security of the State or its allies, including any object from which such information could be derived, shall – if he knows or may reasonably be expected to know mat such information is involved – be liable to the same penalty.’
Art 98a reads: ‘(1) Any person who either intentionally makes public any information as referred to in Article 98, or – without being authorised to do so – intentionally communicates it to or puts it at the disposal of a foreign power, a person or a body established in a foreign country or such a person or body that there is a risk of the information becoming known to a foreign power or to a person or a body established in a foreign country, shall – if he knows or may reasonably be expected to know that such information is involved – be liable to a term of imprisonment not exceeding fifteen years or a fifth-category fine. (2) If the offender acted in time of war or in the service or on the orders of a foreign power or of a person or body established in a foreign country, a life sentence, a determinate sentence of a term of imprisonment not exceeding twenty years or a fifth-category fine may be imposed. (3) Acts committed in preparation of an offence as described in the previous paragraphs shall be punishable by a term of imprisonment not exceeding six years or a fifth-category fine.’
Art. 98b reads: ‘Any person who is to blame for any information as referred to in Article 98 being made public or put at the disposal of an unauthorised person or body, shall be liable to a term of imprisonment or detention not exceeding one year or a third-category fine.’ Art. 4 of the Open Government Act reads: ‘The provision of information in accordance with Articles 1-3 shall not take place if it (a) could endanger the unity of the Crown, or (b) could endanger the security of the State. It shall likewise not take place if it concerns (c) business information and information about manufacturing in so far as such information has been communicated to the government in confidence by natural or legal persons. It shall likewise not take place if and in so far as the interest thereby served does not outweigh the following interests: (d) the relations of the Netherlands with other countries; (e) the economic and financial interests of the State and other public bodies; (f) the investigation of criminal offences and the prosecution of offenders; (g) inspection, monitoring and supervision by or on behalf of government bodies; (h) the right of all persons to respect for their privacy and the protection of the results of medical and psychological tests relating to individual cases; (i) the prevention of disproportionate advantage or damage to natural or legal persons concerned in the matter or to third parties.’
22. Rule 16 reads: ‘All sessions and meetings of the Council shall be private unless the Council decides that all or part of any session or meeting shall be public. Statements made in and documents presented to the private sessions and meetings shall be confidential’.
Rule 19 reads: ‘(a) Minutes of sessions of the Council shall consist of a summary record of the proceedings, provided that written statements handed in by a participant during the course of a session shall be recorded in full if the participant so requests, (b) A draft, in the working languages, of the minutes of a session of the Council shall be sent by the Executive Chairman as soon as possible after the session to those who have attended the session with a request that amendments be notified within twenty-one days from the date of despatch. The amended minutes, in the official languages, shall then be sent as the record of the session to the persons designated in accordance with the provisions of Rule No. 1. (c) The minutes of a session of the Council shall be accepted as a true record of the proceedings only when approved by the Council, (d) All records of the proceedings of the Council shall be treated as confidential, both by the recipients of such records and the issuing body, unless the Council decides otherwise, and shall be so marked.’
23. Rule 12 reads: ‘(a) Within a period of fifteen days following the end of each quarter the Manager shall forward to the designated persons of the Members a statement in a form approved by the Council of his operations relating to the quarter immediately preceding the quarter which has just ended, (b) The delegates and designated persons receiving the quarterly statements under this Rule and persons to whom they communicate statements shall maintain the confidential character of the contents and shall give such statements no publicity whatever, (c) No officer of the Council shall provide any further information on the buffer stock in whatever form, explicit or implicit, except in sessions of the Council or in meetings to which all the delegates of the Members have been invited, and then only if the Council or such meeting agrees disclosure to be advisable.’
Rule Oreads: ‘At the same time as the information is issued under Rule No. 12(a)and in a form approved by the Council, the Executive Chairman may notify the press of the tonnage of tin metal reported under Rule No. 12(a) to be held in the buffer stock.’
24. TD/TIN/6/14 (1982); Trb. 1982 No. 130. Art. 4 reads:‘(1) The Council shall be composed of all the members. (2)(a)Each Member shall be represented in the Council by one delegate and may designate alternates and advisers to attend its sessions, (b) An alternate delegate shall be empowered to act and vote on behalf of the delegate during the latter's absence or in other special circumstances.’
25. Institute's Collection No. 2908.
26. 19 NYIL (1988) pp. 445–449Google Scholar. In accordance with the suggestion in this judgment by the President of the Judicial Division of the Council of State, the Minister for Economic Affairs subsequently treated the petition submitted by the ABN as a notice of objection. On 26 November 1987 the Minister declared the objection unfounded, invoking Art. 4(d), (e) and (i) of the Open Government Act. He attached to his decision an annex summarising as much as possible of the information requested by the ABN (cf., 19 NYIL (1988) p. 449Google Scholar). The ABN again appealed to the Judicial Division of the Council of State against this decision, and pending the hearing of the appeal, applied for provisional measures pursuant to Art. 107 of the Council of State Act. The President of the Judicial Division again rejected the application for orders pending suit. According to the President, the correspondence between the ITC and the member States, which had been submitted to the Division, indicated that the ITC and the parties to the International Tin Agreement took the view that the secrecy provisions which applied within the framework of the ITC should still be strictly observed even now that the International Tin Agreement was no longer operational. The President ruled that this view could provide a factual basis for the Minister to invoke the interest associated with non-publication of information which was subject to these secrecy provisions. Failure to observe these restrictions would seriously impede the future activities of the State of the Netherlands within the framework of the International Tin Agreement and in other international connections, so that the interest associated with openness was outweighed by the importance of the relations of the Netherlands with other countries, as referred to in Art 4(d) of the Open Government Act.
Seeking to refute the ABN's claim that the Minister had wrongly refused to provide any more information about the positions adopted by the Netherlands as stated in documents not derived from the ITC than the information contained in the annex to the decision of 26 November 1987, the Minister claimed that as the secrecy provisions had the purpose of ensuring that the proceedings within the framework of the International Tin Agreement were kept secret, all instructions prepared in the Netherlands with a view to the IT A meetings were likewise subject to this obligation of secrecy. The President of the Judicial Division did not consider this position unreasonable, although there was some room for doubt as to whether the consequences which the Minister drew from it as regards the amount of information he could provide about the positions adopted by the Netherlands did not go beyond what was necessary. (Judgment of 18 February 1988, KG (1988) No. 202. Neither in this case nor in the previous one did the Judicial Division give judgment on the merits of the case; both appeals were withdrawn on 4 April 1990, see infra n. 36).
27. Institute's Collection No. 2959.
28. RvdW (1988) No. 65, NJ (1989) No.3, with a note by Heemskerk, W.H., summarised in NJB (1988) p. 535 (No. 65)Google Scholar, see also HR 12 February 1988 NJ (1988) No. 443.
29. Institute's Collection No. 3109.
30. Institute's Collection No. 3129.
31. Institute's Collection No. 3377.
32. For the text of Art. 93, see supra, n. 3.
33. In the judgments concerning the non-public servants, the following consideration is then stated: ‘In this connection it should be observed that it can be deduced from exhibits produced by the State that the witnesses were members of the Working Group for International Tin Affairs–an interdepartmental working group which prepared the Netherlands' position on tin–as advisors from industry, and that they were also members of the Dutch delegation to the UC in the same capacity.’
34. It concerned the negative decision of the Minister mentioned supra, n. 26.
35. Cf., 60 BYIL (1989) p. 462Google Scholar fa. 5 and ILM (1990) p. 671 et seq.
36. The case was not pursued any further after an out-of-court settlement had been reached between the creditors and the member States of the International Tin Council on 30 March 1990. Cf., for the comparable situation in Great Britain, Greenwood, J.C. in 60 BYIL (1989) pp. 472–473.Google Scholar
37. Note by PJ. Boon.
38. Note by W.L.J. Voogt, partially reproduced in NIPR (1990) No. 258. See also the judgment in the almost identical case pronounced on the same day by the Judicial Division of the Council of State in the case of DJ. v. the Minister for Foreign Affairs, Migrantenrecht (1990) No. 9, with a note by H. Ahmad Ali.
39. See infra, under Held.
40. 997 UNTS p. 11; Trb. 1975 No. 132. Art. 5 reads: ‘(1) Dutch nationals of full age who were born in Surinam or who, although born outside Surinam, belong to one of the groups of persons described in Article 4 (b) and on the date of entry into force of this Agreement have their domicile or place of actual residence outside the Republic of Surinam may acquire Surinamese nationality, even outside the Republic of Surinam, by making a declaration signifying their desire for such nationality prior to 1 January 1986. (2) The persons referred to in paragraph 1 shall have the unconditional right to be admitted to the Republic of Surinam with their families at any time and there to be treated as Surinamese nationals in every sense. They shall acquire Surinamese nationality automatically if they have their domicile or place of actual residence in the Republic of Surinam for a period of two years. (3) Spouses of the persons referred to in paragraph 1 and their children, including adopted children, born before the year 2001 shall also have the right, under paragraph 2, to unconditional admission to the Republic of Surinam. (4) So long as they possess Dutch nationality, the persons referred to in the preceding paragraphs may be granted no rights and subjected to no obligations which are incompatible with Dutch nationality.’
41. See infra, under Held.
42. Ait. 2(1) reads: ‘The acquisition of Surinamese nationality pursuant to this Agreement shall entail the loss of Dutch nationality.’
43. Pursuant to Art. 44, para. 1, national passports are issued only to Dutch nationals. Art. 87, first sentence, of these Regulations provides that if the holder of a passport gets into a situation where there would be grounds for refusing him a passport if he were to apply for one the Minister for Foreign Affairs may cancel the passport.
44. This was also the view taken by the Sub-District Court in Paramaribo in the judgments of 2 March 1989, Migrantenrecht (1989) No. 60 with note by H. Ahmad Ali, and of 21 March 1989, Migrantenrecht (1989) No. 80 with note by A.T.L. Tjon A. Tham.
45. Rechtspraak Vreemdelingenrecht (1988) No. 53 with note by J.J. Bolten, discussed by H. Ahmed Ali in Migrantenrecht (1989) p. 186.
46. For the text of Art. 5(1) see supra, n. 40.
47. For the text of Art. 5(3) see supra, a 40.
48. RvdW (1989) No. 98; Migrantenrecht (1989) No. 71 with note by H. Ahmad Ali; Gids Vreemdelingenrecht No. D 25-48. Rechtspraak Vreemdelingenrecht (1989) No. 46 with note by H. Ahmad Ali. Partially reproduced in NIPR (1989) No. 186 and NJB (1989) p. 597 (No. 98).
49. The interim conclusions of discussions between Surinam and the Netherlands regarding the Nationality Agreement, which were held from 7 to 10 February 1989, are reported in Migrantenrecht (1990) p. 11.
50. Art. 8(1)(d) reads: ‘Appeal to the Judicial Division of the Council of State as referred to in Article 7, paragraph 1, may be instituted on the ground that: (a)…(d) the decision has otherwise been made contrary to the generally recognized principles of proper administration.’
51. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1988-1989 which involved the admission of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1991 (Bijl. Hand. II 1990/1991 – 21800 VI No. 3 pp. 58-61).
52. 1137 UNTS p. 29; ETS No. 73; Trb. 1973 No. 84.
53. 472 UNTS p. 185; ETS No. 30; Trb. 1965 No. 10. Art. 21 reads:‘(1) Information laid by one Contracting party with a view to proceedings in the courts of another Party shall be transmitted between the Ministries of Justice concerned unless a Contracting Party avails itself of the option provided for in paragraph 6 of Article 15. (2) The requested Party shall notify the requesting Party of any action taken on such information and shall forward a copy of the record of any verdict pronounced.’
54. Trb. 1979 No. 143. Art. XI reads: ‘(to Article 21 of the Convention). (1) A complaint submitted by an injured person to the competent authority of the requesting State within the prescribed period shall have similar effect in the other State. A complaint which is required only by the law of the requested State may be submitted after all within the period prescribed by law; this period shall commence at the time of receipt of the request by the authority of the requested State competent to take criminal proceedings. This authority shall immediately notify the competent authorities of the requesting State that according to the law of the requested State a complaint is required and the period within which such complaint must be submitted. (2) The request shall be accompanied by: (a) the original or the certified copy of the criminal file, an explanation of the facts of the case and articles to be produced in evidence, and (b) a copy of the criminal provisions which are applicable by virtue of the law of the place of the offence. (3) The requesting State shall be informed as quickly as possible of the action taken in response to the request. The objects handed over and the original of the criminal file that has been forwarded shall be returned free of charge after termination of the criminal proceedings, unless this requirement is waived. (4) If criminal proceedings have been instituted in the requested State, the authorities of the requesting State shall refrain from further prosecution or execution of the criminal sentence on account of the same offence. They may, however, continue or resume the prosecution or execution of sentence if: (a) it has transpired that the competent authority of the requested State cannot dispose of the criminal proceedings, in particular because the suspect has evaded prosecution or execution of the sentence in the requested State or that although it has closed the criminal proceedings no decision on the merits has been taken regarding the offence on which the request is based; (b) the requesting authority has, for reasons which become known later, withdrawn the request for transfer of the criminal proceedings before the court has imposed sentence in criminal proceedings in which it may decide on the documents in the action outside proceedings at the trial or before the proceedings at the trial at first instance have started. (5) Any investigative act performed in one of the two States in accordance with the provisions obtaining there and any act which suspends or terminates prescription shall have the force of law in the other State which it would have had if it had been lawfully performed in that State. (6) The correspondence concerning the provisions of Article 21 of the Convention and of this Article shall take place between the Federal Minister of Justice of the states (Landesjustizverwaltungen) of the Federal Republic of Germany and the Dutch Minister of Justice.’
55. Trb. 1979 No. 142. Art. IV reads: ‘(To Article 7(1) and Article 8 of the Convention).(1) If the offence underlying the request for extradition is also subject to the jurisdiction of the requested State, the latter shall consider whether it would be better for the person claimed to be tried by a judicial authority of the requesting State. This also applies to retrospective requests for consent to prosecute the person claimed in respect of offences for which he has not been extradited and for requests for further delivery. (2) If one of the two parties to this Agreement has requested the extradition of one of its nationals from a third State for an offence which is also subject to the jurisdiction of the other State, the latter shall consider whether it, instead of requesting extradition from the third State, will request the State of origin to transfer criminal proceedings.’
56. Art 43 reads: ‘(1) This Convention affects neither the rights and the undertakings derived from extradition treaties and international multilateral conventions concerning special matters, nor provisions concerning matters which are dealt with in the present Convention and which are contained in other existing conventions between Contracting States. (2) The Contracting States may not conclude bilateral or multilateral agreements with one another on the matters dealt with in this Convention, except in order to supplement its provisions or facilitate application of the principles embodied in it. (3) Should two or more Contracting States, however, have already established their relations in this matter on the basis of uniform legislation, or instituted a special system of their own, or should they in future do so, they shall be entitled to regulate those relations accordingly, notwithstanding the terms of this Conventioa (4) Contracting States ceasing to apply the terms of this Convention to their mutual relations in this matter in accordance with the provisions of the preceding paragraph shall notify the Secretary General of the Council of Europe to that effect.’
57. Pursuant to Art. 522t of the Code of Criminal Procedure. Art. 522t reads as follows: ‘(1) If the Public Prosecutor considers it desirable in the interests of the proper administration of justice that a foreign State should institute proceedings in respect of an offence for which he is responsible for investigating, he shall make a reasoned proposal to the Minister of Justice (submitting, if possible, the criminal file) with a view to instigating a criminal prosecution in that State. (2) If a preliminary judicial investigation has taken place or if remand in custody has been applied, the Public Prosecutor who makes a proposal as referred to in the previous paragraph shall notify the suspect that he has proposed that the criminal proceedings in respect of the offence to which the investigation referred or for which remand in custody was applied should be transferred to a foreign State. (3) In the case of a notification as referred to in the previous paragraph, no notification of further prosecution need be given. (4) If the injured party has indicated that he wishes to be joined in the action, a proposal as referred to in paragraph 1 may be made only with such party's written consent or, if such consent is not obtained, with the authorisation of the competent court. The authorisation shall be granted on the application of the Public Prosecutor and after the injured party has been heard or has in any event been properly summoned for this purpose.(5) The suspect may lodge a written complaint with the Court of Appeal against a notification as referred to in paragraph 2 within fourteen days. Articles 12b, 12c, 12e paragraph 2, 12f and 12h-12n shall apply by analogy, provided always that where in such articles reference is made to the complainant or the person whose prosecution is required, this shall be deemed to mean the suspect for the purpose of this provision.’
58. For the text of Art. 552t(2), see supra, n. 56.
59. For the text of Art. 552t(5), see supra, n. 56.
60. Art. 23 reads: ‘(1) Not later than the third day after that on which he receives the request for extradition, the Public Prosecutor shall apply in writing for the request to be considered by the District Court. For this purpose he shall submit the documents to the District Court.’
61. NJ (1987) No. 588.
62. Art. 10 reads: ‘(2) Extradition shall not be allowed in cases in which in our Minister's opinion its consequences would cause exceptional hardship to the person claimed on account of his youth, old age or ill-health.’
63. Art. 9 reads: ‘(1) Extradition of the person claimed shall not be allowed for an offence in respect of which: (a) criminal proceedings are pending against him in the Netherlands at the time a decision on the request for extradition is being made;… (2) An exception shall be made to the provisions at the beginning and at (a) of the previous paragraph in cases in which Our Minister in deciding to grant the request for extradition at the same time orders that the prosecution be stopped.’
64. This description of the facts is derived from the judgment of the Court of Appeal.
65. For the text of Art. IV, see supra, a 55.
66. 359 UNTS p. 273; ETS No. 24; Trb. 1965 No. 9. Art. 7 (1) reads: ‘The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.’
67. Art. 30 (2) reads: ‘The District Court shall send Our Minister without delay a certified copy of its judgment. If extradition has been declared admissible, the copy shall be accompanied by the court's recommendations concerning compliance with the request for extradition.’.
68. No appeal in cassation was instituted against the judgment of the Court of Appeal.
69. Note by F.H. van der Burg.
70. Note by R.de Winter.
71. Note by A. Kruyt, discussed by P.W.C. Akkermans in AA (1988) p. 391.
72. Art. 1 reads: ‘All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or any other grounds whatsoever shall not be permitted.’
73. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154.
Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
Art. 14 reads: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
74. 429 UNTS p. 93; Trb. 1964 No. 69. Art. 3(b) reads: ‘In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) … (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions.’
75. 213 UNTS p. 262; ETS No. 9; Trb. 1952 No. 80.
Art. 2 reads: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’
76. Art 23 reads: ‘(1) Education shall be the constant concern of the Government. (2) All persons shall be free to provide education, without prejudice to the authorities’ right of supervision and, with regard to forms of education designated by law, its right to examine the competence and moral integrity of teachers, to be regulated by Act of Parliament. (3) Education provided by public authorities shall be regulated by Act of Parliament, paying due respect to everyone's religion or belief. (4) The authorities shall ensure that primary education is provided in a sufficient number of public-authority schools in every municipality. Deviations from this provision may be permitted under rules to be established by Act of Parliament on condition that there is opportunity to receive the said form of education. (5) The standards required of schools financed either in part or in full from public funds shall be regulated by Act of Parliament, with due regard, in the case of private schools, to the freedom to provide education according to religious or other belief. (6) The requirements far primary education shall be such that the standards both of private schools fully financed from public funds and of public-authority schools are fully guaranteed. The relevant provisions shall respect in particular the freedom of private schools to choose their teaching aids and to appoint teachers as they see fit. (7) Private primary schools that satisfy the conditions laid down by Act of Parliament shall be financed from public funds according to the same standards as public-authority schools. The conditions under which private secondary education and pre-university education shall receive contributions from public funds shall be laid down by Act of Parliament. (8) The Government shall submit annual reports on the state of education to the States General.’
77. Art. 6 reads: ‘(1) Everyone shall have the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law. (2) Rules concerning the exercise of this right other than in buildings and enclosed places may be laid down by Act of Parliament for the protection of health, in the interest of traffic and to combat or prevent disorders.’
78. Art. 9 reads:‘(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’
79. KG (1986) No. 431; AB (1987) No. 84.
80. KG (1987) No. 407.
81. By judgment of 28 August 1987 the President of the District Court of Amsterdam issued an interim injunction restraining Brucker from implementing the judgment of the Court of Appeal until the Supreme Court had given judgment in cassation. Owing to the great interests of the parties at stake in this case, it was necessary, according to the President, to maintain the status quo until the Supreme Court had been able to rule on it. The interest of the Foundation in being protected until the judgment in cassation from the emergency situation that might arise from the religious emotions generated among the many people connected with the Maimonides Lyceum weighed more heavily than Brucker's interest in having his son admitted to the school of his choice at the start of the new school year (KG (1987) No. 409; AB (1987) No. 411, summarised in NJB (1987) p. 1104 (No. 5)).
82. The Court of Appeal of ‘s-Hertogenbosch interpreted Art 2 in the same way in the case of A. and X. v. Katholieke Stichting ter bevordering van economisch en administrattef onderwijs. The Court of Appeal held that the relevant Catholic school had rightly refused to admit children who had refused to wear certain clothing far mixed swimming and mixed gymnastics classes in accordance with the wishes of the parents based on the Koran (judgment of 5 September 1989, KG (1989) No. 394, NJ (1990) No. 377, Migrantenrecht (1990) No. 87, with note by Possel, A.C., Rechtspraak Vreemdelingenrecht (1989) No. 96Google Scholar, with note by B.P. Vermeulen).
83. In the judgment of theCourtof Appeal of‘s-Hertogenbosch of 5 September 1989 (see supra, n. 82), the Court held in this respect that the right of the parents or of their daughters to freedom of religion as referred to in Art. 9 of the European Convention, Arts. 18 (1) and (2) and 27 of the International Covenant on Civil and Political Rights and Art. 6 of the Constitution – assuming far the sake of argument that this right can be invoked in relations between private individuals – is subject to restrictions that were provided for by law and were necessary to protect the rights and freedoms of others. This followed from Art. 9(2) of the European Convention, Art. 18(3) of the International Covenant and Art. 6 of the Constitution, the rights of the school could therefore block the right of the parents to education of such a form for their children that observance of the precepts of the Koran was possible.
84. Note by C.A. Groenendijk.
85. 381 UNTS p. 165; BT I-I; Trb. 1958 No. 18. For the text of Art. 55 see under Held.
86. Trb. 1960 No. 135. For the text of Art. 2 see under Held.
87. Art. 96(1)(a)reads: ‘Notwithstanding the provisions of Article 95: (a) a residence permit may be refused to a Belgian or Luxembourg national as referred to in Article 91, paragraph 1(b), if he does not have sufficient means of support or is not of good moral behaviour,…’ Art. 95(1) reads: ‘A residence permit may be refused to a privileged EEC citizen if he constitutes a threat to public order, national security or public health.’ For the text of Art. 91 see infra, n. 99.
88. The preamble reads: ‘Considering that they are obliged by virtue of Article 55 of the said Treaty to determine provisions which may, in the interests of public order, public security, public health or morality, be applied to nationals of a High Contracting Party in the territory of another High Contracting Party with regard to their entering or leaving its territory, to their freedom of movement, of sojourn and of establishment therein, and to their expulsion.’
89. ILM (1969) p. 679; Trb. 1972 No. 51. Art. 31 reads:‘(1)Atreaty shall be interpretedin good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. (3) There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. (4) A special meaning shall be given to a term if it is established that the parties so intended.’
90. For the text of Art. 4 see under Held.
91. Art. 2 reads: ‘(1) The nationals of each High Contracting Party may freely enter and leave the territory of any other Contracting Party. (2) They shall enjoy the same treatment as nationals of that State as regards: (a) freedom of movement, sojourn and settlement; (b) freedom to carry on a trade or occupation, including the rendering of services; (c) capital transactions; (d) conditions of employment; (e) social security benefits; (f) taxes and charges of any kind; (g) exercise of civil rights as well as legal and judicial protection of their person, individual rights and interests.’
92. Art. 2(2) reads: ‘The admission and expulsion of aliens shall be regulated by Act of Parliament.’
93. Rechtspraak Vreemdelingenrecht (1988) No. 92 with note by G. Caarls.
94. Art. 8 reads: ‘(1) Aliens who have complied with such formalities as are required of them on entry shall be permitted to stay in the Netherlands for a period to be laid down by order in council, if and for as long as: (a) they observe the provisions laid down in and by virtue of this Act; (b) the means at their disposal are sufficient to enable them to defray the costs of their residence in the Netherlands and the cost of travel to a place outside the Netherlands where their admission is guaranteed; (c) they do not constitute a threat to public order, peace or national security. (2) The period referred to in paragraph 1 shall not exceed six months. Different periods may be fixed for the categories of aliens between which a distinction is made by order in council.’
95. Art. 93 reads: ‘The requirement in Article 8, paragraph 1, opening words and (b), of the Act regarding possession of adequate means of support shall not apply to Belgian and Luxembourg nationals. Nor shall this requirement apply to nationals of a Member State of the European Economic Community who are in search of employment (not being Belgian or Luxembourg nationals) provided they would not be reliant on the State or on other public bodies.’
96. Art. 3 reads: ‘The citizens of one of the Contracting Parties who reside or settle in the territory of another Contracting Party shall be obliged to comply with the statutory and implemental regulations governing supervision of aliens only in so far as they relate to registration in the municipal population registers, to the extension, renewal, replacement, carrying and production of residence permits and to the requisite formalities in the event of a change in the place of residence or departure from the country.’
97. OJ(1968)No.L257.Art. 7 reads: ‘(1)A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because he is involuntarily unemployed, this being duly confirmed by the competent employment office. (2) When the residence permit is renewed for the first time, the period of residence may be restricted, but not to less than twelve months, where the worker has been involuntarily unemployed in the Member State for more than twelve consecutive months.’
98. OJ (1964) p. 850.
99. Art. 91 reads: ‘(1) For the purpose of the provisions of this Part, the following persons shall be treated as a “privileged EEC citizen”: (a) an alien who is a national of a Member State of the European Economic Community and who stays in or is moving to the Netherlands either to perform work there, whether or not in salaried employment, or in the capacity of a person to whom services are performed; (b) a Belgian or Luxembourg national who resides in or moves to the Netherlands other than for one of the objects described under (a) above;…’
100. Art. 8(1) reads: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
101. Note by Schultsz, J.C..Partially reproduced in NJB (1990)p. 161(No.21)and NIPR(1990) No. 200.Google Scholar
102. 547 UNTS p. 173; Trb. 1963 No. 50. Art. 19 reads: ‘This Treaty shall not affect the provisions of other agreements which are or may hereafter be in force between the two States and which, in particular spheres of law, govern the recognition and enforcement of judicial decisions or other executory instruments.’
103. 539 UNTS p.27; Trb. 1959, No. 187. Art. 11 reads: ‘Nothing in this Convention shall affect the right of the party entitled to maintenance to avail himself of any other provision applicable to the enforcement of decisions relating to maintenance, whether under the municipal law of the country where the enforcement authority sits or under the terms of another Convention in force between the Contracting States.’
104. 1021 UNTS p. 209; Trb. 1975 No. 85. Art. 23 reads: ‘The Convention shall not restrict the application of an international instrument in force between the State of origin and the State addressed or other law of the State addressed for the purposes of obtaining recognition or enforcement of a decision or settlement.’
105. Art. 30(2) reads: ‘When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.’
106. 570 UNTS p. 101; Trb. 1963 No. 51. Art. 10 reads: ‘(1) This Treaty shall not affect the provisions of other agreements which are or may hereafter be in force between the two High Contracting Parties and which also govern the recognition and enforcement of judicial decisions or authentic acts. (2) This Treaty shall apply only to executory instruments drawn up after its entry into force.’ The relevant commentary reads: ‘The first paragraph of this Article expresses the fact that the recognition and enforcement of a judicial decision or an authentic act originating in one Contracting Party can also be requested in the other Contracting Party on the basis of another treaty in force between the two States. There is therefore no question of granting priority to another such treaty, for example because it covers a special field (as does the above-mentioned Hague Convention on maintenance obligations to children). To this extent the treaty with Austria differs from that with the Federal Republic. Reference should be made in this connection to Article 19 of the latter treaty. For the treaty with Italy, reference should be made to Article 12 of that Treaty.’ (Bijl. Hand.II 1964/1965 – 8041 No. 2, p. 8).
107. 268 UNTS p. 3; Trb. 1957 No. 121; the reservation reads: ‘Le Gouvernement du Royaume se réserve, pour ce qui concerne l'article ler de la Convention, que le recouvrement des aliments ne soit pas facilité en vertu de cet article si, lorsque le créancier et le débitew se trouvent tous les deux aux Pays-Bas, respectivement au Surinam, aux Antilles Néerlandaises ou en Nouvelle Guinée Néerlandaise, et qu' en vertu de la Loi sur l'Assistance despauvres une aide ou un arrangement analogue sont accordés, aucun recouvrement n'était en général récuperé pour cette aide sur le débiteur, eu égard aux circonstances du cas en question.’
108. For the text of Art. 93, see supra, a 3.
109. Art. 17 reads: ‘(1) In the event that any State submits a reservation to any of the articles of this Convention at the time of ratification or accession, the Secretary-General shall communicate the text of the ratification to all States which are parties to this Convention, and to the other States referred to in article 13. Any Contracting party which objects to the reservation may, within a period of ninety days from the date of the communication, notify the Secretary-General that it does not accept it and the Convention shall not then enter into force as between the objecting State and the State making the reservation. Any State thereafter acceding may make such notification at die time of its accession. (2) A Contracting Party may at any time withdraw a reservation previously made and shall notify the Secretary-General of such withdrawal.’
110. Art. 6 reads: ‘The receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any other judicial act for the payment of maintenance. (2) The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents. (3) Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.’
111. In the proceedings before the Amtsgericht, the children were represented by their mother and she in turn by the Jugendamt.
112. Art. 8 reads: ‘(1) When acting in law in the discharge of the function entrusted to them by or pursuant to this Act, the receiving agency and the Child Care and Protection Board to which such institution has transferred the handling of a case do not require the assistance of a procurator or attorney, unless the proceedings commence with a writ of summons. (2) Without prejudice to the provisions of Article 133 of the Code of Civil Procedure, the applicant shall be deemed to have chosen as his address for service the office of the receiving agency and of the Child Care and Protection Board to which such institution has transferred the handling of the case. All documents intended for him and relating to his maintenance claim may be served there.’
113. Partially reproduced in NIPR (1987) No. 328.
114. On appeal X. involved his eldest child Y. in the case.
115. Partially reproduced in NIPR (1988) No. 317.
116. On appeal in cassation X. also involved his second child Z. in the case.
117. Art. 14(2) reads: ‘The debtor may raise the following objections to a decision granting execution: (a) that execution should not have been granted; (b) that one of the grounds for refusal specified in article 2, sub-paragraph (c), is present; (c) that he is in a position to object to the claim itself on grounds which did not arise until after the judicial decision had been rendered. (2) The proceedings in which these objections may be raised shall be governed by die law of the State in which the decision is to be enforced.’
118. Art. 7 reads: ‘The District Court to whose President the request for leave to enforce is addressed shall take cognizance of the action referred to in Article 14, paragraph 2, of the Treaty. This action suspends the operation of the leave for enforcement, unless the District Court decides otherwise.’
119. Art. 29 reads: ‘This Convention shall replace, as regards the States who are Parties to it, the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations in Respect of Children, concluded at The Hague on the 15th of April 1958.’
120. Art. 24 reads: ‘This Convention shall apply irrespective of the date on which a decision was rendered. Where a decision has been rendered prior to the entry into force of the Convention between the State of origin and the State addressed, it shall be enforced in the latter State only for payments falling due after such entry into force.
121. See supra, n. 109.
122. Art. 2(2) reads: ‘Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body which shall act in its territory as Receiving Agency.’
123. For the English translation see supra, n. 102.
124. Discussed by Vermeulen, B.P. in ‘How Should the Courts Decide in Conflicts between Human Rights Treaties and Conflicting Provisions of Other Treaties and International Norms?’, NCJM-Bulletin (1990) pp. 429–443Google Scholar. Summarised in NJB (1990) p. 611 (No. 76) and discussed on pp. 541-543. Summarised by van Sandick, L.H.W. in 29 ILM (1990) pp. 1375–1389Google Scholar, including the text of the opinion of Advocate-General Strikwerda.
125. Note by P.H. Kooijmans.
126. Note by A.H.J. Swart.
127. Art. 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.’
128. ETS No. 114; Trb. 1983 No. 85. Art. 1 reads: ‘The death penalty shall be abolished No one shall be condemned to such penalty or executed.’ Art. 6 reads: ‘As between the States Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly.’
129. Art. 2(1) reads: ‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’
130. 199 UNTS p. 67; Trb. 1951 No. 114 and Trb. 1953 No. 10. Art. VII(5)(a) reads: ‘The authorities of the receiving and sending States shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.’
131. Art. 8 reads: ‘If the offence in respect of which extradition is requested carries the death penalty under the law of the requesting State, the person claimed shall not be extradited unless in Our Minister's opinion there is an adequate guarantee that this penalty, if a sentence to this effect should follow, will not be carried out.’
132. Trb. 1980 No. 111. Art. 7 reads: ‘(1) When the offence for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offence, extradition may be refused unless the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed. (2) In special circumstances, having particular regard to the age, health or other personal condition of the person sought, the Executive Authority of the Requested State may refuse extradition if it has reason to believe that extradition will be incompatible with humanitarian considerations.’
133. Art. VII(3) reads: ‘In cases where the right to exercise jurisdiction is concurrent the following rules shall apply: (a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to: (i) offences solely against the property or security of that State or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent; (ii) offences arising out any act or omission done in the performance of official duty, (b) In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdictioa (c) If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.’
134. KG (1988) No. 240; MRT (1988) p. 322 with note by J.F.J.A. van Daal.
135. KG (1988) No. 297; MRT (1989) p. 22.
136. KG (1989) No. 46; MRT (1989) p. 28, discussed in DD (1989) pp. 342-345.
137. KG (1989) No. 47; MRT (1989) p. 24, discussed in DD (1989) pp. 342-345.
138. The Supreme Court used the Dutch text of the articles.
139. The District Court of Utrecht had sentenced S. to six years' imprisonment on 11 October 1988. The Court of Appeal of Amsterdam quashed this judgment on appeal on 29 May 1989, holding that in view of Article VII (3) of the NATO Status of Forces Agreement the Dutch criminal courts did not have jurisdiction in this case and should therefore declare themselves incompetent to hear the case (Institute's Collection No. 3327). On appeal in cassation the Supreme Court too held that the Dutch courts did not have jurisdiction. Nor, as the Supreme Court pointed out, was this altered by the fact that in view of the judgments of 30 March 1990 the State could not, under the present circumstances, hand over S. to the United States since this could not in itself infringe the primary right of the United States military authorities to exercise jurisdiction and it was exclusively up to these authorities to decide whether or not this right would be waived and hence possibly to include the question of whether the handing over of S. could be realised after all. The Supreme Court quashed the judgment of the Court of Appeal in so far as it had declared that it lacked competence, and held that the claim of the Public Prosecutions Department was not admissible (judgment of 11 September 1990, NJ (1991) No. 250 with note by Swart, A.H.J., summarised in NJB (1988) p. 1358 (No. 133))Google Scholar. Van Sandick, loc. cit. n. 124, also made the following point: ‘In early November 1990, a compromise solution was sought. The United States authorities started a pre-trial investigation to determine whether it was possible to charge S. with a crime for which the death penalty could not be given. S. opposed and lost, through summary proceedings. By mid-November, the US authorities informed the Dutch Government that the death penalty would not be requested. On this basis, the Dutch authorities decided to turn S. over to the American authorities.’
140. Note by P.E. Minderhoud.
141. Trb. 1987 No. 182.
142. 19 NYBL (1988) pp. 452–154.
143. 1140 UNTS p. 253; Trb. 1977 No. 156.
144. For the text of Art. 10, see under Held.
145. For the text of Art. 62, see under Held.
146. For the text of Art. 91, see under Held.
147. The Tribunal used the Dutch text.
148. Art. 120 reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’
149. The Tribunal used the Dutch text.
150. Art. S reads: ‘(1) Unless otherwise provided in this Convention, invalidity, old-age or survivors’ benefits in kind acquired under the legislation of one of the Contracting Parties, shall not be reduced, modified, suspended, discontinued or confiscated because the beneficiary is resident in the territory of the other Party. (2) The said benefits, deriving from the legislation of one of the Contracting Parties, shall be provided to nationals of the other Party, who are resident in a third country, in the same manner and to the same extent as to its own nationals resident in that third country.'
151. Appeal against the judgment has been lodged with the Central Appeals Court.
152. Summarised in AB Kart (1989) No. 168, discussed in NILOS Newsletter (1990) No. 3, p. 3.
153. Stb. 1975 No.352; 7 NYIL (1976)p. 372. Art. 4 reads: ‘It is prohibited to discharge or take aboard a vessel or aircraft with the aim of discharging, or deliver with the aim of discharging, any waste or pollutant or noxious substances other than those covered by Art. 3(1) unless exemption is granted.’
154. ILM (1972) p. 262; Trb. 1972 No. 62.
155. ILM (1972) p. 1291; Trb. 1973 No. 172.
156. Cf., Jaarboek 1987-1988 van het Ministerie van Buitenlandse Taken, Bijlage 71, p. 146B.
157. Art. 3(1) reads: ‘It is prohibited to (a) discharge, or (b) take [substances] aboard a vessel or aircraft with the aim of discharging, or (c) deliver with the aim of discharging, any waste, pollutant or noxious substances indicated by Royal Decree.’
158. Introduced by Act of 7 July 1988, Stb. 1988 No. 331.
Art. 16 reads: ‘(1) Our Minister shall lay down regulations to implement the Directives of the Council and the Commission of the European Communities concerning supervision and monitoring of the transfrontier movement of hazardous waste in the Community; such regulations shall deviate from the provisions of Articles 4, 5, 6 and 7 in so far as necessary. (2) It is prohibited to move hazardous waste into or out of Dutch territory. (3) The prohibition shall not apply if the regulations laid down pursuant to paragraph 1 with regard to which the said regulations provide for such exceptions have been complied with and Our Minister or Our Minister of Transport, Public Works and Water Management has not objected, pursuant to Article 16a, 16b or 16c or Article 6b of the Marine Pollution Act (Stb. 1981 No. 695), to the proposal to move the said waste into or out of Dutch territory. (4) In so far as moving hazardous waste into Dutch territory for the purpose of discharging it as referred to in the Marine Pollution Act is concerned, Our Minister shall lay down regulations pursuant to paragraph 1 in agreement with Our Minister of Transport, Public Works and Water Management.’
Art. 6b reads: ‘Our Minister, acting in agreement with Our Minister of Housing, Physical Planning and Environment, shall object to the proposal to move hazardous waste as referred to in the Chemical Waste Act into Dutch territory for the purpose of discharging it if discharging that waste would contravene regulations laid down by or pursuant to this Act.’
159. Partially reproduced in NIPR (1990) No. 281.
160. Partially reproduced in NIPR (1988) No. 149.
161. In its second consideration the Court of Appeal stated that:
‘– people chained themselves to the railing of the Vulcanus II who made it clear that they were Greenpeace supporters;
– freedom of passage fox the Vulcanus II when leaving a lock at Antwerp was seriously impeded;
– in the open sea small motorboats based on board the Sirius or similar vessels passed round the Vulcanus II at very close range more than once at high speed’.
162. No appeal in cassation was lodged against the judgment.
163. Cf., 15 NYIL (1984) pp. 419–420.
164. Cf., 6 NYIL (1975) pp. 413–414.
165. For the history of the Stichting see 18 NYIL (1987) p. 418 n. 172Google Scholar. Of the original 19, 248 natural and legal persons who instituted proceedings at first instance in conjunction with the Stichting, 13, 806 were also co-appellants in the proceedings before the Court of Appeal and the Supreme Court.
166. Discussed by Willems, J.C.M. in ‘Rechtsweigering tot en met de Hoge Raad’ [Denial of justice at every instance, including the Supreme Court], NJB (1990) pp. 221–224Google Scholar; by Riezebos, C. in ‘De rationale rechter en toetsing van verdragen’ [The national courts and the review of treaties], Tijdschrift voor Overheidsadministratie (1990) pp. 128–131Google Scholar and by Hennga, A.W. in Publiek Domein (1990) pp. 125–128.Google Scholar
167. Note by P.H. Kooijmans.
168. Art. 94 reads: ‘Statutory regulations in farce within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties mat are binding on all persons or of resolutions by international institutions.’ For the text of Art. 120, see supra, n. 148.
169. 729 UNTS p. 161; ILM (1968) p. 811; Trb. 1968 No. 126.
170. Stb. 1945 No. F321; Trb. 1951 No. 44. Art. 2(4)reads: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’
171. Art. 51 reads: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’
172. Trb. 1985 No. 145. As the Supreme Court observed in its description of the facts, after the INF Treaty had been concluded on 8 December 1989 the Agreement was terminated pursuant to an Agreement of 18 December 1987 contained in an exchange of letters between the Government of the USA and the Netherlands (Trb. 1988 No. 4) approved by Act of 7 April 1988, Stb. 1988 No. 143.
173. Art. 2 reads: ‘(1)Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of farce which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’ For the text of Art. 3, see supra, n. 73.
174. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. Art. 6 reads: ‘(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. (2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. (3) When deprivation of life constitutes the crime of genocide, it is understood that nothing in this Article shall authorise any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. (4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. (5) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. (6) Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant’
175. For the text of Art. 3, see infra, n. 179.
176. 18 NYIL (1987) pp. 417–422.Google Scholar
177. 20 NYIL (1989) pp. 364–369.Google Scholar
178. The appellants' claim may be summarised as follows. First, they sought a declaratory judgment that the stationing of cruise missiles in Woensdrecht and/or elsewhere in the Netherlands and/or the use thereof is/are unlawful against them and against each one of them individually, and they sought an order prohibiting the State from stationing these missiles or cooperating in any way with such stationing and from permitting their use in the Netherlands or cooperating in any way with such use (Claims I-III). Alternatively, they claimed that the State should be prohibited from stationing the missiles or from cooperating in such stationing if a veto right of the State concerning the use of these missiles is not included in the arrangements to be made with the United States or in the agreements to be concluded with the United States and/or a no-first-use declaration is not issued beforehand by the State and the United States and incorporated in the agreements to be made or the convention to be concluded (Claims IV-VI).
179. The relevant text reads: ‘The US Air Force GLCM's will be assigned to NATO exclusively to serve the common allied goal of deterrence and defense against an armed attack on one or more of the parties to the Alliance, as elaborated in Article 6 of the Norm Atlantic Treaty of 4 April 1949. They will only operate in accordance with NATO procedures. The United States Government will, time and circumstances permitting, give special weight to the views of the Government of the Netherlands in the event that employment of the GLCM's stationed in the Netherlands is considered.’ The Supreme Court used the Dutch text.
180. See supra, n. 179.
181. The relevant text leads: ‘US Forces will retain custody and control of all US weapons and will be responsible for maintaining and training of the GLCM Wing. The United States Government will provide personnel and equipment for the performance of these functions.’
182. The reference is probably to Art. 3; see supra, n. 179.
183. Art. II reads: ‘Each non-nuclear weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.’
184. See supra, n. 181.
185. 13 NYIL (1982) pp. 315–316Google Scholar. Art. 2 reads: ‘It is prohibited to transport or to have transported, by any means, arms or similar goods to or destined for South Africa.’
186. Institute's Collection No. 3064.
187. 12 NYIL (1981) pp. 292–293Google Scholar. Art. 13 reads: ‘Dutch criminal law shall apply to Dutch nationals who commit any offence defined by or pursuant to this Act outside the Netherlands.’
188. The Supreme Court intepreted Art. 13 in the same way in the case of K. BV v. Public Prosecution of 11 December 1990, Institute's Collection No. 3380.
189. Unlike the Court of Appeal, the District Court deemed it to have been proven that X. had also had de facto control over the transport.
190. Art. 2 reads: ‘In order to comply with decisions or recommendations of organs of international institutions, or with international agreements, concerning the maintenance or restoration of international peace and security or the promotion of the international legal order, rules as referred to in Articles 3 and 4 may be laid down by order in council at the proposal of Our Ministers.’ Art. 3 reads: ‘(1) The rules referred to in Article 2 may concern the movement of goods, services and payments, shipping, air transport, road transport and postal and telecommunications services, in relation to the States or territories designated in the Sanctions Decree. (2) The activities referred to in paragraph 1 in relation to the States or territories designated in the Sanctions Decree shall include any action which is manifestly directly designed to bring about such an activity. (3) The rules referred to in Article 2 may include regulations concerning documents customarily used in the movement of goods, services and payments and in shipping, air transport, road transport and postal and telecommunications services. (4) This Act shall be without prejudice to the powers conferred by the Import and Export Act.’
191. 298 UNTS p. 11; Trb. 1957 No. 74; Guide, vol. 3 p. 2267. Art. 59 reads: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be progressively abolished during the transitional period in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. The Council may, acting unanimously on a proposal from the Commission, extend the provisions of this Chapter to nationals of a third country who provide services and who are established within the Community.’
192. Art. 7 reads: ‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The Council may, on a proposal from the Commission and after consulting the Assembly, adopt, by a qualified majority, rules designed to prohibit such discrimination.’
193. Resolution 418 (1977). YUN (1977) p. 161; SCOR 32nd sess., Resolutions and Decisions of the Security Council (1977) p. 5.Google Scholar
194. European Political Cooperation communiqué on South Africa, EPC Bulletin (1983) No. 472. This communiqué was also quoted by the Trade and Industry Appeals Tribunal (College van Beroep voor het Bedrijfsleven) in its judgment of 23 February 1990 in the case of R.J.P. v. the Minister for Economic Affairs. The Tribunal upheld the Minister's refusal pursuant to Art. 2 of the Import and Export (South Africa) Decree 1987 (Stb. 1987No.512; 19 NYIL (1988) p. 425) to grant a licence to import three 323 calibre guns with rifled barrels into the Netherlands from South Africa. The Tribunal took the view that neither the 1987 Decree nor the instruments of international law which the Decree partly served to implement – namely the EPC communiqué and UN Security Council Resolution 558 (1984)–lent any support to the view that the goods were not subject to the provisions of the Import Decree if they were intended not for military purposes but far use in hunting and shooting (AB (1990) No. 332).
195. X. entered the same defence before the District Court The District Court held with regard to this defence that the Sanctions Decree served to implement UN Security Council Resolution 418 of 4 November 1977. As the text of the preamble and of Article 23 of this Resolution made clear, the resolution comprised a mandatory decision which the Netherlands was obliged to implement pursuant to Art. 25 of the UN Charter. Given that the Security Council's decision, by which the Netherlands was bound, was of a higher order than the rules of Community law (cf., the preamble to the EEC Treaty), it took precedence over Community law. There was therefore no need to consider the thesis that the Sanctions Decree was contrary to Arts. 59 and 7 of the EEC Treaty.
196. The District Court gave the same grounds for its sentence.
197. With the exception of the penalty imposed as an alternative to the fine. The Court of Appeal altered this to 130 days. No appeal in cassation was lodged against the judgment of the Court of Appeal.