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Netherlands judicial decisions involving questions of public international law, 1992–1993*
Published online by Cambridge University Press: 07 July 2009
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References
1. Discussed by Heringa, A.W. in ‘Judicial Enforcement of Article 26 of the International Covenant on Civil and Political Rights in the Netherlands’, 24 NYIL (1993) p. 179.CrossRefGoogle Scholar
2. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. 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.’
3. With a note by Sinninghe Damsté;, W.A.Nemesis (1990)Google Scholar No. 96 with note by L. Andringa; RSV (1990) No. 295; briefly reproduced in NJB (1990) p. 504 (No. 2) and in NJCM-Bulletin (1990) p. 576, with a note by A.W. Heringa.
4. With a note by T. Loenen (AB), summarised in NJB-katern (1993) p. 264 (No. 101).
5. With a note by A.W. Heringa.
6. For the text of Art. 26, see supra, n. 2.
7. 993 UNTS p. 3; ILM (1967) p. 360; Trb. 1969 No. 100. The relevant part of Art. 7 reads: ‘The States Parties to the present Covenant recognize 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; (ii) a decent living for themselves and their families in accordance with the provisions of the present Covenant; …’
8. See 22 NYIL (1991) p. 376; discussed by A.W. Heringa, op. cit. n. 1, pp. 143–144.
9. Partially reproduced in NJB-katern (1993) p. 298 No. 117 and in NIPR (1993) No. 290; discussed by P.J.I.M. de Waart in 41 NILR (1994) pp. 116–125.
10. With a note by J.C. Schultsz.
11. Court of Appeal of The Hague, 5 August 1992, 24 NYIL (1993) pp. 346–351.
12. The judgment of the Supreme Court says about this: ‘On 6 June 1990 the Ministry had issued Pied-Rich on request with two written declarations. Pied-Rich needed them in connection with obligations to its own bank. These identical declarations contained an undertaking by the Ministry that it would transfer the freight fees that it received from the shipping line to the importers so that they could comply with their purchase obligations to Pied-Rich, and also an unconditional and irrevocable guarantee that the shipping line would promptly comply with its freight obligation.’
13. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1992–1993, which involved the admission of aliens, is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1994 (Bijl. Hand. II 1993/94 – 22800 VI No. 3).
14. With a note by B.P. Vermeulen.
15. With a note by A.H.J. Swart on p. 1760; partially reproduced in NJB-katern (1992) p. 323 (No. 186).
16. The relevant part of Art. 15 of the Constitution reads: ‘1. Other than in cases laid down by or pursuant to Act of Parliament, no one may be deprived of his liberty …’
17. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 5(1)(f) reads: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.’
18. Article 7a (old) of the Aliens Act reads as follows: ‘1. Aliens who have entered on board an aircraft should, if they are refused entry and do not leave immediately or if they are kept at the border pending a decision on their entry, stay in the area designated for this purpose by the official charged with frontier control, unless their departure from such area is necessary in order to travel to a place outside the Netherlands.
2. An area as referred to in paragraph 1 may be sealed off and other steps taken to prevent unauthorised departure therefrom by the aliens referred to in paragraph 1; the provisions of Article 26, paragraph 4, shall apply mutatis mutandis.
3. The designation of an area as referred to in paragraph 1 shall not entail the granting of entry to the Netherlands.
4. Rules may be prescribed by order in council relating to the regime applicable to the area referred to in paragraph 1 …’
19. See 23 NYIL (1992) p. 427.
20. NAV (1990) p. 375, discussed on pp. 372 and 363; KG (1990) No. 371.
21. NAV (1991) p. 39 (discussed on p. 5); GV No. F-146; KG (1991) No. 85; NJ (1991) No. 698. Summarized in NJCM-Bulletin (1992) p. 910 and in ELD (1992) No. 031.
22. NJ (1993) No. 81. Summarized in NJB-katern (1991) p. 377 No. 54, and in NAV (1991) p. 5. Previous cases reported in 21 NYIL (1990) p. 398 n. 84.
23. Art. 19(2) reads: ‘If the identity of the person who has been stopped cannot be immediately established or if it is not immediately apparent that he is allowed to reside in the Netherlands, he may be transferred to a place intended for the purpose of interrogation. He shall not be detained there for longer than six hours, provided always that the time between midnight and nine o'clock in the morning does not count towards this period.’
Art. 19(3) reads: ‘If there are grounds for assuming that the person detained is not allowed to reside in the Netherlands, the period referred to in subsection 2 may be extended by a period not exceeding forty-eight hours by the head of the local police exercising jurisdiction in the place where the person is detained.’
24. See 21 NYIL (1990) pp. 395–397.
25. With a note by R. Fernhout.
26. Discussed on p. 578.
27. With a note by W.L.J. Voogt; identical case of the same date, published in RV (1992) No. 11, with a note by B.P. Vermeulen.
28. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
29. The Judicial Division vehemently continued to demand clarity. In the case of X. v. the State Secretary for Justice, the person concerned was granted exceptional leave to remain in the Netherlands as compulsory return would give rise to a situation which might lead to a violation of Art. 3 of the European Convention. A previous refusal to grant a residence permit was quashed by the Judicial Division because it had not been clearly shown why these facts could not constitute a ground for the granting of a residence permit for compelling humanitarian pressing reasons. The new refusal merely contained the argument that those people who satisfied the criteria for an exceptional leave to remain could reasonably be refused a residence permit on the grounds of public interest since their immediate admission would have far-reaching consequences for the economic well-being of the Netherlands. Once again, the Division held that the decision did not deal with the nature of the facts and circumstances that led to the person concerned being granted an exceptional leave to remain but being refused a residence permit. Judgment of 9 June 1993, NAV (1993) p. 305, with a note on p. 230; GV No. D 12–233; AB (1993) No. 409, with a note by R. Fernhout.
30. With a note by B.P. Vermeulen; summarised in AB Kort (1993) No. 47.
31. 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(F) reads: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’
32. Stb. 1945 F321; Trb. 1951 No. 44. Art. 1 reads: ‘The purposes of the United Nations are: 1. to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. to be a centre for harmonising the actions of nations in the attainment of these common ends.’
Art. 2 reads: ‘The Organization and its Member States, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles; 1. The Organization is based on the principle of the sovereign equality of all its Members; 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligation assumed by them in accordance with the present Charter; 3. All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered; 4. 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 inconsisitent with the Purposes of the United Nations; 5. All members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action; 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security; 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures underChapter VII.’
33. This was also held in a previous judgment of the Judicial Division of 8 April 1991 in the case of Y.A. v. the State Secretary for Justice (Gids Vreemdelingenrecht (1991) No. D12–203). In this case the State Secretary had refused an application for admission as a refugee (from Turkey) and for the granting of a residence permit because the person concerned had not shown that he had a well-founded fear of persecution within the meaning of Art. 1 (A)(2) of the Convention on the Status of Refugees, and alternatively because he was not eligible for admission in view of Art. 1(F)(a) and (c) of the Convention. He, together with three others, had hijacked a Turkish Airlines passenger aircraft on 2 May 1972 in order to compel the release of three leaders of Dev Gene, who had been condemned to death and were due to be executed on 5 May 1972. The Division held that insufficient reasons had been given for the view that the crimes and acts referred to in Art. 1(F)(a) and (c) included the hijacking of an aircraft.
34. Summarised in NJB-katern (1993) No. 100, p. 249 and in DD (1993) No. 335.
35. 500 UNTS p. 95; Trb. 1962 Nos. 101 and 159. The relevant part of Art. 37(2) reads: ‘Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in para. 1 of Art. 32 shall not extend to acts performed outside the course of their duties …’ The relevant part of Art. 37(3) reads: ‘Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties …’
36. Summarised in AB Kort (1992) No. 858.
37. 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.’
38. Trb. 1990 No. 46.
39. ILM (1969) p. 679; Trb. 1972 No. 51. Art. 18 reads: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …’
40. Bijl. Hand. II 1982–83 – 17798 (R1227) Nos. 1–4.
41. Summarised in AA (1993) p. 207, with a note by Th.M. de Boer; NIPR (1993) No. 750; NJB-katern (1993) p. 417 No. 207; Euro. CL (1993) Vol. 2 No. 326.
42. ILM (1980) p. 1492; Trb. 1980 No. 156. Art. 4 reads: ‘1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.
2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.
3. Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter of the contract is a right in immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.
4. A contract for the carriage of goods shall not be subject to the presumption in paragraph 2. In such a contract if the country in which, at the time the contract is concluded, the carrier has his principal place of business is also the country in which the place of loading or the place of discharge or the principal place of business of the consignor is situated, it shall be presumed that the contract is most closely connected with that country. In applying this paragraph single voyage charter-parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods.
5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.’
43. ILM (1985) p. 1573; Trb. 1990 No. 41. Art. 8(2) reads: ‘However, the contract is governed by the law of the State where the buyer has his place of business at the time of conclusion of the contract, if: (a) negotiations were conducted, and the contract concluded by and in the presence of the parties, in that State; or (b) the contract provides expressly that the seller must perform his obligation to deliver the goods in that State; or (c) the contract was concluded on terms determined mainly by the buyer and in response to an invitation directed by the buyer to persons invited to bid (a call for tenders).’
44. 1262 UNTS p. 153; ILM (1969) p. 229; Trb. 1969 No. 101. Art. 2 reads: ‘Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.’ Art. 5 reads: ‘A person domiciled in a Contracting State may, in another Contracting State, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question; … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred.’
45. Art. 17 reads: ‘If the Parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement evidenced in writing, agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Agreements conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 12 or 15, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 16. If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’
46. Stc. 20 December 1982, 15 NYIL (1984) p. 321.
47. Stb. 1977 No. 710.
48. Protocol of conclusions of the consultations on the independence of Surinam, 1 January 1975, Bijl. Hand. II 1974/75 – 13298 No. 1.
49. See supra, n. 46.
50. Stb. 1987 No. 126.
51. An appeal has been lodged against this decision.
52. Brussels (77/388/EEC) OJ (1977) No. L145/12. Art. 15 reads: ‘Exemption of exports and like transactions and international transport. Without prejudice to other Community provisions Member States shall exempt the following undercondiiions which they shall lay down forthe purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse: … 4. the supply of goods for the fuelling and provisioning of vessels: (a) used for navigation on the high seas and carrying passengers for reward or used for the purpose of commercial, industrial or fishing activities; …’
53. 499 UNTS p. 311; Trb. 1959 No. 124. Art. 1 reads: ‘The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.’
54. ILM (1982) p. 1261; Trb. 1983 No. 83. Art. 10 reads:
‘1. This article relates only to bays the coasts of which belong to a single State.
2. For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semicircle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation.
4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
6. The foregoing provisions do not apply to so-called “historic” bays, or in any case where the system of straight baselines provided for in article 7 is applied.’
55. The item does not include ‘… 4. goods intended for the provisioning of outward-bound: – sea-going vessels with which any economic activity is performed, with the exception of vessels for coastal shipping; – lifeboats, vessels forproviding assistance at sea or vessels forcoastal fishing, with the exception of ship's provisions intended for the last-mentioned vessels; – warships whose destination is a port or anchorage outside the Netherlands; – aircraft as referred to at 3.’
56. Art. 9 reads: ‘1. The tax shall be 17. 5 per cent. 2. Notwithstanding paragraph 1, the tax shall be: … (b) zero for deliveries of goods and services referred to in Table II to the Act, provided that the conditions set by order in council have been fulfilled.’
57. The Supreme Court came to the same decision on the same day in an identical case against E.J.M.H.
58. See also Siekmann, R.C.R. in International Peacekeeping (1994) no. 3, pp. 99–100.Google Scholar
59. Art. 125 reads: ‘A military order means an order that concerns any interest of military service and is given by a superior competent for this purpose to a subordinate:
A superior is competent within the meaning of paragraph 1: (a) if he holds in the organisation a position in the armed forces above that of the subordinate to whom the order is given; (b) except in the case referred to at (a), if he derives a special power to issue military orders from a decision of the competent authority; (c) except in the cases referred to at (a) and (b), if action is necessary through the giving of an order.’
60. Institute's Collection No. 3766.
61. Institute's Collection No. 3809.
62. Art. 280, para. 4, of the Code of Criminal Procedure reads: ‘The court shall order that a witness listed in accordance with Article 263, paragraph 2, whose subpoena or summons has been omitted by default or has been refused, shall be subpoenaed or summoned in writing to appear at the trial at a time to be set by the court, unless it holds in a reasoned decision that the defendant's defence cannot reasonably be said to be damaged by not doing this.’