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Netherlands judicial decisions involving questions of public international law, 1990–1991*
Published online by Cambridge University Press: 07 July 2009
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References
1. The identical judgment given on the same day in the case of the Bestuur van de Nieuwe Algemene Bedrijfsvereniging [New General Industrial Association for Social Insurance] v. A. v.d. B.-J. is published in Nemesis (1991) No. 198, AB (1991) No. 544, with a note by L.J.M. de Leede and NJCM-Bulletin (1991) p. 648 with a note by A.W. Heringa, and the judgment in the case of J.C.H.D. v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging in RSV (1991) No. 257.
2. Directive of the Council of the European Communities of 19 December 1978, OJ (1979) No. L 6/24.
3. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 100. Art. 26 reads: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
4. Decision of 9 April 1987, RSV (1988) No. 201; NJCM-Bulletin (1987) p. 377 with note by Zwart, T., Report of the Human Rights Committee (1987) p. 151Google Scholar (GAOR, 42nd Sess., Suppl. 40 (A/42/40)).
5. Decision of 29 March 1989 (218/1986), RSV (1990) No. 172 with note by F.W.M. Keunen, partly reproduced in NJCM-Bulletin (19S9) with note by A.W. Heringa; Report of the Human Rights Committee (1989) p. 232Google Scholar (GAOR, 44th Sess., Suppl. 40 (A/44/40)). Both dissenting opinions are published in RSV (1990) No. 172. Mrs Vos had previously submitted a complaint to the European Commission of Human Rights on account of a violation of Art. 14 of the European Convention on Human Rights in conjunction with Art. 1 of Protocol I to the European Convention. The Commission declared the application inadmissible on 10 July 1985 (RSV (1990) No. 171 with note by F.W.M. Keunen).
6. Art. 4 reads: ‘(1) The principle of equal treatment means that there shall be no discrimination whatsoever on the ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns: the scope of the schemes and the conditions of access thereto; the obligation to contribute and the calculation of contributions; the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits. (2) The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity.’
7. Nemesis (1990) No. 98 with note by L. Andringa.
8. Cf., 21 NYIL (1990) p. 374 n. 33.
9. The circulars appeared following the judgment of the Central Appeals Court dated 8 December 1988.
10. NJCM-Bulletin (1990) p. 158 with note by A.W. Heringa; Nemesis (1990) No.75, AB (1990) No. 232 with note by W.A. Sinninghe-Damsté, summarised in NJB (1990) p. 361 (No. 1).
11. Nemesis (1990) No. 96 with note by L. Andringa; AB (1990) No. 233 with note by W.A. Sinninghe-Damsté, summarised in NJB (1990) p. 504 (No. 2) and NJCM-Bulletin (1990) with note by A.W. Heringa.
12. Under Art. 95 of the Judicial Organisation Act, the Procurator-General of the Supreme Court may ‘in the interests of the law’ appeal in cassation to the Supreme Court against decrees and decisions of Courts of Appeal, District Courts and Sub-District Courts (known as ‘cassation in the interests of the law’). The aim of such an appeal is to ensure the uniform application of the law. Such a decision of the Supreme Court does not affect the rights of the parties in the particular case (Art. 98 of the Judicial Organisation Act).
13. Note by J.C. Schultz; partially reproduced in NIPR (1991) No. 199 and in NJB (1990) p. 1422, discussed by Geesteranus, G.W. Maas, ‘Can foreign States be declared bankrupt? The case of Zaire’ in Sumampouw, M., ed, Law and Reality (1992) pp. 219–220.Google Scholar
14. Institute's Collection No. 3409; partially reproduced in NIPR (1989) No. 298.
15. See 20 NYIL (1989) pp. 296–300. The Supreme Court actually confiimed the judgment given by the Court of Appeal of The Hague in that case.
16. Art. 2(4) reads: ‘If the debtor has no place of residence within the Kingdom in Europe but does practise a profession or cany on a business there, the court within whose district he has an office is competent.’
17. Art. 14 reads: ‘A person who has an office or branch also has residence in the place concerned in respect of all matters concerning such office or branch.’
18. Art. 13a reads: ‘The jurisdiction of the courts and the enforceability of judicial decisions and of legal instruments drawn up by legally authorised officials [autheruieke akte] are subject to the exceptions recognised under international law.’
19. Partially reproduced in NIPR (1991) No. 150.
20. ILM (1972) p. 470; Trb. 1973 No. 43; ETS No. 74.
21. Summarised in AB Kort (1990) No. 1184.
22. Art. 2(1) reads: ‘For the purpose of this Act decision means a written ruling of an administrative organ intended to have a legal consequence.’
23. 1065 UNTS p. 199; Trb. (1976) No. 101.
23a. Ameiasinghe, C.F., ed., Documents on International Administrative Tribunals (1989) p. 35.Google Scholar
24. Art. 13(1) reads: ‘Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organisation in the case of disputes with the European Patent Organisation in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.’
25. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1990–1991 which involved the admission of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1992 (Bijl. Hand. II 1991/1992 — 22300 VI No. 3 pp. 62–64).
26. AB Kort (1991) No. 927.
27. Stc. 1986 No. 232. Under this scheme an investment premium could be granted for investments in seagoing ships made in the period from 1 January 1987 to 17 July 1988 to the person making the investment.
28. 285 UNTS p. 231; Trb. 1956 No. 40. Art.VII reads: (1) see under Held. ‘(2) Each Party reserves the right to limit the extent to which aliens may within its territories establish, acquire interests in, or carry on enterprises, engage in communications, air or water transport, banking involving depository or fiduciary functions, or the exploitation of land or other natural resources. However, new limitations imposed by either Party upon the extent to which aliens are accorded national treatment, with respect to carrying on such activities within its territories, shall not be applied as against enterprises which are engaged in such activities therein at the time such new limitations are adopted and which are owned or controlled by nationals and companies of the other Party. Moreover, neither Party shall deny to transportation, communications and banking companies of the other Party the right to maintain branches and agencies, in conformity with the applicable laws and regulations, to perform functions necessary for essentially international operations in which they engage. (3) The provisions of paragraph 1 of the present Article shall not prevent either Party from prescribing special formalities in connection with the establishment of alien-controlled enterprises within its territories; but such formalities may not impair the substance of the rights set form in the said paragraph. (4) Nationals and companies of either Party, as well as enterprises controlled by such nationals and companies, shall in any event be accorded most-favoured-nation treatment with reference to the matters treated in the present Article.’
29. Art. XXIII (1) reads: ‘The term “national treatment” means treatment accorded within the territories of a Party upon terms no less favourable man the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such Party.’
30. Art. 107 reads: ‘Pending the examination, a decision which is the subject of a dispute to be decided by the Division or against which a notice of objection has been lodged pursuant to Art. 7(2) of the Administrative Decisions Appeals Act may, at the request of the interested party, be suspended in whole or in part by the President on the ground that implementation of the decision would mean that such Party would suffer harm disproportionate to the interest that would be served by imiwHian implementation of the decision. A aprovisional measure may also be made at his request in order to prevent disproportionate harm as referred to in the first sentence.’
31. KG (1989) No. 188; AROB tB/S (1989) No. 32 with note by J.B.J.M. ten Berge.
32. For the text of Art. VII(2) see supra, n. 28.
33. For the text of Art. VII(4) see supra, n. 28.
34. Note by B.P. Vermeulen, summarised in NJB (1991) p. 31 (No. 1) and AB Kort (1990) No. 776.
35. Note by W.L.J. Voogt.
36. 189 UNTS p. 137; Trb. 1951 No. 131 amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76. Art. 1(A) reads: ‘… the term refugee shall apply to any person who […] (2) as a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.’
37. Art. 15 reads: ‘Aliens coming from a country where they have a well-founded fear of persecution because of their religious or political opinion or their nationality, or because they belong to a certain race or a particular social group, may be admitted as refugees by our Minister.’
38. Art. 8 reads: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
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 far the protection of the rights and freedoms of others.’
Art. 10 reads: ‘Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
Art. 11 reads: ‘(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of die armed forces, of the police or the administration of the State.’
39. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
40. As editor-in-chief of the magazine Contact he was arrested in the UK together with the rest of the editorial staff in 1983, but was released on bail. He seized on this opportunity to escape to the Netherlands, where he requested asylum. The British authorities requested his extradition, but this was refused by the Netherlands as the offences with which he had been charged were not punishable under Dutch law. The request for his extradition was withdrawn in 1985 (cf., Aanh. Hand. II 1990/91, pp. 3304–3306).
41. S. then endeavoured in vain to prevent his imminent deportation by applying for an interim injunction and starting proceedings before the European Commission of Human Rights. In the interim injunction proceedings, the President of the District Court in The Hague based his decision on the fact that S. could not await the decision of the European Commission, partly on the basis of the written statement by the State Secretary for Justice to Member of Parliament Lankhorst that S. was not sought by the criminal justice authorities in the United Kingdom. The State Secretary based this information on a message from Interpol in The Hague that Interpol in London had notified Interpol in The Hague on 8 January 1991 that S. was ‘not wanted in the UK.’ On 22 February 1991 S. was deported and promptly arrested, after which he was held in Brixton prison in London (Trouw, 6 March 1991).
42. Note by H.P.J.A.M. Hennekens.
43. Note by P.W.C. Akkermans.
44. 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, their 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 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 for 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 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.’
45. Although the question of whether leave is mainly in the public interest — and hence whether leave may be granted for in principle a maximum of 3 years — should, under Art. 1-C 34, para. 1, be answered by the Minister of Education and Science, para. 2 of this Article makes an exception to this since it provides that leave granted for the performance of duties at an educational establishment that is maintained or recognised by the government of the recipient country must in any event be deemed to be mainly in the public interest.
46. 188 UNTS p. 289; Trb. 1951 No. 76.
47. The Agreement was denounced on 5 August 1981 and ceased to have effect on 5 February 1982, Trb. 1981 No. 189.
48. Under Art. 102 an interim injunction may be applied for in all cases in which appeal lies to the Public Service Tribunal.
49. The Public Service Tribunal referred to Bijl. Hand. II 1980/81, 15084, No. 5 p. 7, which showed that promotion of the study of Dutch literature was regarded by the Government as one of the objectives of foreign policy, even in die case of South Africa. Cf., also 13 NYIL (1982) pp. 268–269.
50. Institute's Collection No. 3011.
51. Institute's Collection No. 3012.
52. Note by E.A A. Luijten and E. A. Alkema, partially reproduced in Nemesis (1991) No. 151 and in NJB (1990) No. 176, with commentary in NJB (1990) pp. 1468–1469.
53. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 12 reads: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’
54. Rees case, 17 October 1986, Publ. ECHR, Series A, Vol. 106 (1987), NJ (1987) No. 945 with note by E. A. Alkema.
55. For the text of Art. 8, see supra, n. 38.
56. 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 otter status.’
57. Art. 23 reads: ‘(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (2) The right of men and women of marriageable age to marry and to found a family shall be recognised. (3) No marriage shall be entered into without the free and full consent of the intending spouses. (4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.’
58. Art. 2 reads: ‘(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth of other status. (2) Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant. (3) Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) to ensure that the competent authorities shall enforce such remedies when granted.’
59. For the text of Art. 26, see supra, n. 3.
60. NJ (1989) No. 871.
61. NJ (1989) No. 871 and Nemesis (1990) No. 74. Discussed by Boele-Woelki, K. and Tange, P. C. in ‘De Deense wet inzake het geregistreerd partnerschap’ (The Danish Act on registered partnership), NJB (1989) pp. 1537–1543.Google Scholar
62. Art. 120 of the Constitution reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’
63. Art. 1 of the Constitution 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 on any other grounds whatsoever shall not be permitted.’
64. 23 July 1968, Publ. ECHR, Series A, Vol. 6 (1968).
65. See 17 NYIL (1986) pp. 247–250.
66. See 17 NYIL (1986) pp. 251–252.
67. A request by two men to be allowed to many each other was refused by the District Court of Amsterdam on 13 February 1990, although the matter was not reviewed by reference to the treaty provisions (Arts. 8, 12 and 14 of the European Convention on Human Rights and Arts. 23 and 26 of the International Covenant). The District Court left unanswered the question whether the refusal of the Registrar of Births, Deaths and Marriages to draw up an instrument recording the notice of intended marriage was contrary to the treaty provisions as in its view even if the answer were in the affirmative the request could still not be granted. If the question were to be answered in the affirmative, it would be outside the law-creating function of the courts to determine in what way the equality then necessary should be realised (15 NCJM-Bulletin (1990) pp. 456–458, with note by K. Boele-Woelki and P. C. Tange).
68. Even before this the Supreme Court had followed a more restrictive interpretation of Art. 8 by the European Court. In its judgment of 22 February 1985, the Supreme Court held that a relationship which qualified as vie familiale or ‘family life’ existed between a biological father and his child simply as a result of the birth (RvdW (1985) No. 47; NJCM-Bulletin (1985) p. 211 with note by J. de Boer; partially reproduced in NJB (1985) p. 356). The judgment of the European Court in the Berrehab case (21 June 1988, Publ. ECHR, Series A, Vol. 138 (1988), NJ (1988) No. 746 with note by E.A. Alkema) obliged the Supreme Court to hold mat where application was made by a biological father for the provision of access arrangements between him and his child the application was admissible only if the applicant could prove not only the biological fatherhood but also additional circumstances which meant that there was a vie familiale or ‘family life’ between him and the child within the meaning of Art. 8 of the European Convention (judgment of lONovember 1989, RvdW (1989) No. 248; NJ (1990) No. 628, with note by E.A.A. Luijten and E.A. Alkema; Nemesis (1990) No. 73, with note by N. Holtrust and I. de Hondt; discussed in NJB (1989) p. 1527). See also: Van Dijk, P. and Schreuder-Vlasbom, M., ‘Human Rights and the Free Movement of Persons in Europe; the Role of the National Judiciary in the Netherlands’, in Free Movement of Persons in Europe, Legal Problems and Experiences, Asser Institute Colloquium on European Law (1993) pp. 298–318Google Scholar. The same requirement of additional circumstances was applied by the Supreme Court in determining whether there was a vie familiale or ‘family life’ between a sperm donor and the child (judgment of 26 January 1990, RvdW (1990) No. 33; Nemesis (1990) Nos. 89 and 94; NJ (1990) No. 630; discussed in NJB (1990) p. 290).
69. Partially reproduced in Tijdschrift voor Milieu en Recht (1991) No. 81.
70. Treaty relating to cooperation in the area of the Ems and the Dollart and in contiguous areas, Emden, Trb. 1984 No. 118.
71. For the actual situation in the Ems-Dollart area see the maps on pp. 474–475 and also Bouchez, L.J., ‘The Netherlands and the Law of the Rivers’, in International Law in the Netherlands, Vol. I (1978) pp. 280–286.Google Scholar
72. See Art. 2 of the Cooperation Treaty.
73. The Society for the Conservation of Nature Reserves in the Netherlands and the Groningen Landscape Foundation had previously applied in vain in 1984 for an order prohibiting the State of the Netherlands from signing the Treaty (see the judgment of the District Court of The Hague of 21 May 1981, 16 NYIL (1985) pp. 506–507).
74. Convention on wetlands of international importance, especially as waterfowl habitat, 996 UNTS p. 245; Trb. 1975 No. 84.
75. Convention on the conservation of European wildlife and natural habitats, ETS No. 104; PB (1982) No. L 38; Trb. 1979 No. 175.
76. Directive of the Council of the European Communities on the conservation of wild birds, Luxembourg (79/409), PB (1979) No. L 103/1.
77. The relevant part of Art. 6 reads: ‘(1) In the determination of his civil rights and obligations or 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 in 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.’
78. 298 UNTS p. 11; Guide vol. 3, p. 2267; Trb. 1957 No. 74. 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.’
79. Art. 17 reads: ‘No one may be prevented against his will from being heard by the courts to which he is entitled to apply under the law.’
80. Art. 97 reads: ‘(1) All Dutch nationals who are capable of doing so shall have a duty to cooperate in maintaining the independence of the State and defending its territory. (2) This duty may also be imposed on residents of the Netherlands who are not Dutch nationals.’
81. Tijdschrift voor Milieu en Recht (1988). No. 40 with note by J.H. Jans.
82. These are the rules of law as previously relied upon before the District Court and mentioned above under the Facts.
83. Note by W.H. Heemskerk. Partially reproduced in NJB (1986) p. 355 (No. 50); NIPR (1986) No. 33; and 38 NILR (1991) with note by W.J. van der Nat-Verhage.
84. 847 UNTS p. 231; Trb. 1979 No. 38.
85. Art. 1 reads: ‘In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of mat State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated. The expression “other judicial act” does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.’
86. Art. 23 reads: ‘A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.’
87. Art. 5 reads: ‘If the Central Authority considers that the request does not comply with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the objections to the Letter.’
88. Stb. 1909 No. 120; 199 Parry CTS p. 1.
89. 286 UNTS No. 265; Trb. 1954 No. 40.
90. Stb. 1980 No. 653. Art. 6(3) reads: ‘If the court which must execute the letter of request considers that it does not comply with the provisions of the Convention, it shall send it back to the central authority and state precisely what objections have arisen in respect of the request. The central authority shall then, if necessary, act in respect of the letter of request in accordance with the provisions of the previous paragraphs.’
91. Art. 9 reads: ‘The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.
However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously.’
92. This description of the facts is taken from the judgment of the Supreme Court.
93. Partially reproduced in NIPR (1985) No. 472.
94. Art. 36 reads: ‘Any difficulties which may arise between Contracting States in connection with die operation of this Convention shall be settled through diplomatic channels.’
95. Art. 12 reads: ‘The execution of a Letter of Request may be refused only to the extent that: (a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or (b) the State addressed considers that its sovereignty or security would be prejudiced thereby. Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.’
96. Art. 345 reads: ‘(1) Appeal against judgments on petitions shall also be made by petition to the higher court. (2) The appeal shall be lodged within two months of the date of such a judgment by the person who obtained the judgment after the same service by the other interested parties.’
97. Art. 11 reads: ‘In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence (a) under the law of the State of execution, or (b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority. A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other man the State of origin and the State of execution, to the extent specified in that declaration.’
98. Trb. 1970 No. 200. Art. 2 reads: ‘(1) This Agreement applies: (a) in Switzerland […] (b) in the Netherlands, to: (i) the legislation on old age insurance; (ii) the legislation on widows' and orphans' insurance; (iii) the legislation on employment disability insurance (invalidity insurance); (iv) the legislation on child allowances.’
99. Stb. 1913 No. 205.
100. 318 UNTS p. 175; Trb. 1985 No. 65.
101. Art. 10 reads: ‘Dutch nationals shall have the right to the ordinary annuities and benefits for people with a disability under the Swiss invalidity insurance, on the same conditions as Swiss nationals. Ordinary annuities for insured persons whose degree of disability is less than 50% cannot, however, be paid to Dutch nationals who leave Switzerland permanently. (2) For the purpose of determining periods of contribution which serve as a basis for the calculation of the ordinary annuities payable to Dutch or Swiss nationals under Swiss invalidity insurance, insurance periods for disability insurance under Dutch legislation shall be equated with Swiss periods of contribution in so far as they do not coincide.’
102. Point 8 reads: ‘Periods of contribution under the Dutch legislation on invalidity insurance (the Invalidity Act and the Invalidity Benefit Claimants (Interim) Act) completed between 31 December 1947 and the date of entry into effect of the Dutch legislation on disability insurance shall also be included for the purpose of application of Article 10, paragraph 2, of the Agreement.’
103. For the text of Art 14 see infra, under Held.
104. Art. 22 reads: ‘(1) Each dispute between the two Contracting Parties relating to the interpretation or application of this Agreement which cannot be satisfactorily resolved by the competent authorities of the two parties shall be decided, at the request of one of the parties, by an arbitration procedure.’
105. Note by J.C. Schultz. Partially reproduced in NJB (1990) p. 1096 (No. 139), NIPR (1990) No. 452; and 38 NILR (1991) p. 410 with note by K.F. Haak.
106. 399 UNTS p. 189; Tib. 1957 No. 84. For the text of Art 2(1) see infra, under Held.
107. 120 LNTS p. 155; Trb. 1953 No. 109.
108. Trb. 1953 No. 66.
109. 137 LNTS p. 11; Stb. 1933 No. 365; Trb. 1960 No. 17.
110. Contained in the Protocol signed at Brussels on 23 February 1968 for the amendment of the Convention for the unification of certain rules relating to bills of lading, signed at Brussels on 25 August 1924. Trb. 1979 No. 26.
111. ILM (1969) p. 679; Trb. 1972 No. 51. Art. 33(4) reads: ‘Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.’
112. S & S (1988) No. 52; ETL (1990) p. 251; partially reproduced in NIPR (1988) No. 524.
113. In interpreting the CMR Convention, the Dutch courts attach much importance to the way in which it is interpreted by the courts and literature in other countries. See Japikse, R.E., ‘The Interpretation of International Maritime Conventions in Civil and Common Law’ in Netherlands Reports to the Thirteenth International Congress of Comparative Law, Montreal, 1990, (1990) pp. 299–305Google Scholar. On p. 305 Japikse mentions a judgment of the Court of Appeal of The Hague in the case of Enka v. Estron, in which the Court of Appeal of The Hague took the liberty of differing with the Queen's Bench Division regarding the interpretation of Art. 2(1) of the CMR (judgment of 8 April 1988, S&S (1989) No. 1; NIPR (1988) p. 531).
114. Art. 1(1)reads: ‘This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a contracting country, irrespective of the place of residence and the nationality of the parties.’
115. Art. 1(5) reads: ‘The Contracting Parties agree not to vary any of the provisions of this Convention by special agreements between two or more of them, except to make it inapplicable to their frontier traffic or to authorise the use in transport operations entirely confined to their territory of consignment notes representing a title to the goods.’
Art. 41 reads: ‘(1) Subject to the provisions of Article 40, any stipulation which would directly or indirectly derogate from the provisions of this Convention shall be null and void. The nullity of such a stipulation shall not involve the nullity of the other provisions of the contract. (2) In particular, a benefit of insurance in favour of the carrier or any other similar clause, or any clause shifting the burden of proof shall be null and void.’
116. Art. 10 of the Hague Rules reads: ‘The provisions of this convention shall apply to all bills of lading issued in any of the contracting States.’
Art. 10 of the Hague-Visby Rules reads: ‘This Protocol shall be open for signature by the States which have ratified the Convention or which have adhered thereto before the 23rd February 1968, and by any State represented at the twelfth session (1967–1968) of the Diplomatic Conference on Maritime Law.’
117. On the same day the Supreme Court gave judgment in the virtually identical case of the Minister of Housing, Planning and Environment v. Bayer A.G., BNB (1990) No. 262, with note by A.L.C. Simons; S&S (1991) No. 25; summarised in NJB (1990) p. 1177 (No. 11), NIPR (1991) No. 119 and Tijdschrift voor Milieu en Recht (1991) No. 19.
118. Royal Decree of 2 February 1981, Stb. 1981 No. 33.
119. Stb. 1869 No. 37; Trb. 1955 No. 161; 138 Parry CTS p. 167. The English texts of the Articles mentioned below are taken from an unofficial translation published in Cmnd. 2421.
120. Art. 7 reads:
‘The transit de toutes marchandises est libre sur le Rhin, depuis Bâle jusqu à la pleine mer, à mains que des mesures sanitaires ne motivent des exceptions. Les Etats riverains nepercewont aucun droit de ce transit, qu'il s'effectue directement, ou après transbordement ou après mise en entrepôt.’ ‘The transit of any merchandise is free on the Rhine from Basle to the open sea unless health measures require exceptions. The riparian States shall not collect any duty on such transit neither directly nor after transshipment nor after warehousing.’
121. Art. 2(2) reads: ‘(1) Levies shall be levied under the name “chemical waste levies” in respect of the activities referred to in paragraph 2 with regard to chemical waste, which are performed under a licence or exemption as referred to in that paragraph. (2) The levies shall be levied on: […] (e) a person who, under the terms of an exemption as referred to in Article 4 of the Marine Pollution Act, dumps chemical waste at sea or takes it on board a vessel or aircraft with a view to dumping it at sea.’
122. Stb. 1975 No. 352. Art. 4 reads: ‘It is prohibited to dump or take on board a vessel or aircraft with the aim of dumping, or deliver with the aim of dumping any waste or pollutant or noxious substances other than those covered by Art. 3(1) unless exemption is granted.’ (See also 7 NYIL (1976) p. 372.
123. Art. 3 reads: ‘No duty based solely on navigation may be levied on vessels or their cargoes or on rafts navigating on the Rhine or its tributaries insofar as they are in the territory of the High Contracting Parties or on the navigable waterways mentioned in Article 2. Equally forbidden is the levying of dues for mooring or anchoring in the navigable waterways mentioned in the preceding paragraph above Rotterdam and Dordrecht.’
Art. 5(2) reads: ‘Any duties for putting into port or tying-up are and remain abolished.’
124. Art. 26(2) reads: ‘The provisions concerning pilots’ and warning services and the fees to be paid to them by the watermen are reserved to each riparian State. No waterman or raftsman may be compelled to take on a pilot. He may not be required to pay a fee for this purpose unless he has in fact made use of the services of a pilot on board his vessel.’
Art. 27(2) reads: ‘To meet the necessary costs of maintenance and supervision, a corresponding fee may be levied. Should the revenue from this fee exceed the amount of expenditure in question, the rate of the said fee should be diminished proportionally. However, this fee may only be collected when use has been made of the provisions and facilities mentioned above.’
Final Protocol 2(A) reads: ‘It was unanimously agreed mat the stipulations of the first sub-paragraph of this Article do not apply to the fees for opening or closing bridges which are charged on navigable waterways other man the Rhine nor to duties charged for the use of artificial waterways or engineering works such as locks, etc.’
125. This description of the facts is largely drawn from the judgment of the Court of Appeal in this case, as referred to below. For other legal problems relating to die exemptions granted to Kronos-Titan, see 18 NYIL (1987) pp. 406–407.
126. Art. 7 reads: ‘The levies that become owed in a period shall be paid on submission of the return.’
127. Institute's Collection No. 2898.
128. ILM (1972) p. 262; Trb. 1972 No. 62. Art. 15(1)reads: ‘Each Contracting Party undertakes to ensure compliance with the provisions of this Convention: (a) by ships and aircraft registered in its territory; (b) by ships and aircraft loading in its territory the substances and materials which are to be dumped; (c) by ships and aircraft believed to be engaged in dumping within its territorial sea.’
129. 298 UNTS p. 11; Trb. 1957 No. 74. Guide Vol. 3 p. 2267. Art. 12 reads: ‘Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.’
130. Cf., supra, considerations 6.11–6.12.
131. Cf., supra, consideration 6.14.
132. Cf., supra, consideration 6.13.
133. Cf., supra, consideration 6.15.
134. Cf., supra, consideration 6.9.
135. Summarised in ELD (1991) p. 428.
136. Trb. 1974 No. 191. Art. XII reads: ‘(1) The tariffs on any air service shall be established at reasonable and non-discriminatory levels, due regard being paid to all relevant factors including cost of operation, reasonable profit, characteristics of service (such as standards of speed and accommodation) and, where it deemed suitable, the tariffs of other airlines for any part of the specified route. These tariffs shall be fixed in accordance with the following provisions of this Article. (2) The tariffs referred to in paragraph 1 of this Article shall be agreed upon between the designated airlines of the Contracting Parties; such agreement shall be reached, whenever possible, through the traffic conference procedures of the International Air Transport Association. Any reduction or exemption authorised by a Contracting Party shall be available to, and may be equally applied by, the designated airlines of the other Contracting Party. (3) The tariffs so agreed shall be submitted to the aeronautical authorities of the Contracting Parties at least forty-five days before the proposed date of their introduction; in special cases, a shorter period may be accepted by the aeronautical authorities. If within thirty days from the date of submission the aeronautical authorities of one Contracting Party have not notified the aeronautical authorities of the other Contracting Party that they are dissatisfied with the tariff submitted to them, such tariff shall be considered to be acceptable and shall come into effect on the expiration of the forty-five day period mentioned above. In the event that a shorter period far the submission of a tariff is accepted by the aeronautical authorities, they may also agree that the period for giving notice of dissatisfaction be less than thirty days. (4) If a tariff cannot be established in accordance with the provisions of paragraph 2 above, or, if during the period applicable in accordance with paragraph 3 above, a notice of dissatisfaction has been given, the aeronautical engineers of the Contracting Parties shall endeavour to determine the tariff by agreement between themselves. (5) If the aeronautical authorities cannot agree on any tariff submitted to them under paragraph 3 of this Article or on the determination of any tariff under paragraph 4, the dispute shall be settled in accordance with the provisions of Article XVII of the present Agreement. (6) (a) No tariff shall come into force if the aeronautical authorities of either Contracting Party are dissatisfied with it except under the provisions of paragraph 3 of Article XVII of the present Agreement, (b) When tariffs have been established in accordance with the provisions of this Article, those tariffs shall remain in force until new tariffs have been established in accordance with the provisions of this Article.’
137. 17 NYIL (1986) pp. 284–287.
138. AB (1989) No. 80 with note by F.A. van Bakelen; Compendium Jurisprudentie Luchtrecht (1988) p. 427Google Scholar with note by F.A. van Bakelen.
139. Art. 96 reads: ‘(1) A declaration that the Kingdom is in a state of war shall not be made without the prior approval of the States General. (2) Such approval shall not be required in cases where consultation with Parliament proves to be impossible as a consequence of the actual existence of a state of war. (3) The two Chambers of the States General shall consider and decide upon the matter in joint sessioa (4) The provisions of the first and third paragraphs shall apply by analogy to a declaration that a state of war has ceased.’
140. Bijl. Hand. II 1985/86 — 19 290 B p. 6.
141. Resolution of the Security Council of the United Nations, New York, 6 August 1990 (661 (1990)). The relevant passages read: ‘The Security Council … (3) Decides that all States shall prevent: (a) The import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution, (b) Any activities by then-nationals or in their territories which would promote or are calculated to promote the export or transshipment of any commodities or products from Iraq or Kuwait; and any dealings by their nationals or their flag vessels or in their territories in any commodities or products originating in Iraq or Kuwait and exported therefrom after the date of the present resolution, including in particular any transfer of funds to Iraq or Kuwait for the purposes of such activities or dealings. (c) The sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in their territories which promote or are calculated to promote such sale or supply of such commodities or products. (4) Decides that all States shall not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs. (5) Calls upon all States, including States non-members of the United Nations, to act strictly in accordance with the provisions of the present resolution notwithstanding any contract entered into or licence granted before the date of the present resolution…’
Resolution of the Security Council of the United Nations, New York, 25 August 1990 (665 (1990)). The relevant passage reads: ‘The Security Council … (1) Calls upon those Member States cooperating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990)…’
142. 29 November 1990, Resolution of the Security Council of the United Nations, New York (678 (1990)). The relevant passages read: ‘The Security Council (1) Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so. (2) Authorises Member States cooperating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area. (3) Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution…’
143. The writ of summons and record of counsel's closing speech are printed in Public Domein (1991) pp. 84–106.
144. Note by P. A. Kottenhagen-Edzes. Summarized in AA (1992) p. 521 with note by Th.M. de Boer. Partially reproduced in NIPR (1992) No. 110.
145. With regard to the prosecution and conviction of the master of the Borcea, see the judgment of the District Court of 26 March 1990, 22 NYIL (1992) p. 451.
146. On 7 February 1992 the proceedings were terminated without a final judgment.