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Netherlands judicial decisions involving questions of public international law, 1994–1995*
Published online by Cambridge University Press: 07 July 2009
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References
1. Note by P.J. Wattel.
2. Note by F.H. van der Burg, summarised and discussed by J.W. Zwemmer in AA (1994) pp. 526–534..
3. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. An. 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. For the text, see under Held.
5. This article provides for a (higher) computation of the rentable value in the cases in which an owner-occupied dwelling forms part of the assets of the business.
6. Summarised in NIPR (1995) No. 418.
7. 658 UNTS p. 163; Trb. 1966 No. 1966 No. 91.
8. Art. 1 reads: ‘The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. The Convention shall not apply where the address of the person to be served with the document is not known.’
Art. 2 reads: ‘Each contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States and to proceed in conformity with the provisions of articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law.’
9. Under Art. 4(7) service takes place at the office of the Public Prosecutor and by publication in a national newspaper (public notification). Art. 4(8) also provides for service at the office of the Public Prosecutor. The Public Prosecutor then makes use of the services of the Ministry of Foreign Affairs (diplomatic channel). In addition, a copy of the notification is sent direct to the person concerned by registered letter. Cf., Soek, J.W., ‘The Service of Documents Abroad and the Protection of Defendants Resident Abroad’, 29 NILR (1982) pp. 74–76.CrossRefGoogle Scholar
10. Cf., 22 NYIL (1991) pp. 379–387.
11. Cf., what is stated above under The Facts. Elsewhere in the petition, it was noted that during her pregnancy C. had not been able to claim under the Unemployment Insurance Act (WW) and the Sickness Benefits Act (ZW) because Cuba had not deducted or paid any contributions, although it was – according to C – obliged to do so.
12. After the Sub-District Court had noted that C. had not withdrawn her petition, it set aside the contract of employment by judgment of 6 May 1992.
13. Summarised in NIPR (1993) No. 311.
14. Summarised in NIPR (1995) No. 252 and NJB-katern (1994) p. 606 (No. 257 C).
15. Note by Th.M. de Boer.
16. Institute's Collection No. 1892.
17. ‘De Trappenberg’ had also brought proceedings against Morocco previously, in 1978, on the assumption that no recovery would be possible against B. It requested the court for a garnishee order to secure the debt on funds held by Morocco in accounts at the Banque de Paris et des Pays-Bas. The court complied, whereupon Morocco applied to the court for an interlocutory injunction for the cancellation of the gamishee order. The President gave judgment for Morocco (judgment of 18 May 1978, 10 NYIL (1979) pp. 444–445; ILR Vol. 65 p. 375).
18. NIPR (1985) No. 176; 18 NYIL (1987) pp. 354–356.
19. 18 NYIL (1987) pp. 354–356.
20. RvdW (1994) No. 257; 24 NYIL (1993) p. 340.
21. Summarised in NIPR (1994) No. 252 and RvdW (1994) No. 257 C.
22. Summarised in NIPR (1994) No. 252 and RvdW (1994) No. 257 C.
23. Summarised in NIPR (1993) No. 290 and 25 NYIL (1994) p. 513.
24. SummarisedinNIPR(1994)No. 155. Discussed by Barnhoornin, L.A.N.M. ‘Tenuitvoerlegging via het EEX en betekening aan vreemde staten’, in Schmidt, G.E. and Freedberg-Swartzburg, J. A., eds., Het NIPR geannoteerd (1996) pp. 163–172.Google Scholar
25. Art. 684 provides that where a writ is executed abroad service must take place at the office of the Public Prosecutor, and Art. 686 also provides for the possibility of sending two copies to the addressee by registered letter.
26. Cf., supra, n. 9.
27. Trb. 1989 No. 142.
28. See Wellens, K.C., Resolutions and Statements of the United Nations Security Council (1946–1992) (1993) p. 538.Google Scholar
29. The judgment of the District Court of Middelburg of 10 April 1992 (see infra) states that the document initiating the French interim injunction proceedings was served by a process server on 5 April in accordance with Arts. 684 and 686 of the Nouveau Code de Procedure Civile and communicated ‘par la vote diplomatique etnotifiée à l'Ambassade d'lrak à Paris, qui a accepté dela recevoir.’ The District Court took this from the text of the French judgment.
30. By so-called ‘ordonnancede référe’. The hearing took place on the 16th. He held ‘qu'il s'est ecoulé un temps suffisant entre le date de délivrance de l'assignation et la date d'audience au sens de l'article 486 NCPC’ (taken from the judgment of the District Court of Middelburg).
31. The notification of service of the leave to enforce states that it was lodged ‘with the office of the Public Prosecutor in Amsterdam with a request that the above-mentioned documents as prescribed in Article 4(8) be forwarded to the Ministry of Foreign Affairs, with a note requesting that, since no Dutch embassy is now functioning in Iraq, the documents be forwarded by registered post to the Embassy of Iraq in the Netherlands, as requested by this Embassy’. Cf., also Barnhoorn, L.A.N.M., ‘The Service of Process on a Foreign State’, in Law and Reality (1992) pp. 1–17.Google Scholar
32. As regards the seizure of the ‘Gur Mariner’, see inter alia the District Court of Middelburg of 30 January 1991, S&S (1992) No. 47, summarised in NIPR (1991) No. 473 and Euro CL (1992) Vol. 9 No. 457.
33. No decision has yet been taken on this opposition. The District Court of Amsterdam probably waited initially for the result of the appeal lodged by Iraq on 28 November 1991 against the judgment of the President of the Tribunal de Commerce. This appeal was dismissed by the Cour d'Appel in Paris on 20 October 1992 as Iraq had exceeded the period for lodging an appeal (15 days) by 5 months. The judgment of the Tribunal de Commerce was served in accordance with Arts. 684 and 686 NCPC on 22 May 1991. On appeal, Iraq maintained that service should have been effected under Art. 688. The Cour d'Appel did not dispute this, but recorded that the end resultof the Arts. 684/686 method that had been followed was the same as that of the Art. 688 method.
34. KG (1992) No. 172, summarised in NIPR (1992) No. 276.
35. Summarised in NIPR (1995) No. 429.
36. For the text of Art. 152, see under Held.
37. Trb. 1989 No. 114. For the text of Art. 14, see under Held.
38. See Trb. 1994 No. 101.
39. Discussed by R. Bruin in NAV (1994) p. 719. Commented upon by T.P. Spijkerboer in AB (1995) No. 216 (dealing with M.N. v.State Secretary) and RV (1994) No. 12 (D.N. v. State Secretary). A fourth similar case of the same date is published in GV No. 18f-2 (S.M.N. and J.B. v. State Secretary).
40. 213 UNTS p. 321; 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.’
41. Art. 15 reads: ‘(1) 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. (2) Admission may be refused only for important reasons in the public interest if such refusal would force the alien to proceed forthwith to a country as defined in paragraph 1.’
42. Art. 12b (1) reads: ‘Our Minister may grant a provisional residence permit to an alien who has arrived in the Netherlands and has submitted a request for admission if, in the opinion of Our Minister, forced repatriation to the country of origin would result in exceptional hardship for the alien concerned in connection with the overall situation in that country.’
43. As regards the introduction of a right of appeal to the District Court, see 26 NYIL (1995) pp. 315.
44. Ultimately, therefore, the Aliens Law Coordinating Subsection considered that the review should be carried out in the following order: (1) assessment of the overall situation in Zaire in the context of (a) admission as a refugee, (b) granting of a residence permit for compelling reasons of a humanitarian nature on account of a possible violation of Art. 3 of the ECHR, and (c) granting of a provisional residence permit on account of exceptional hardship under Art. 3; (2) assessment of the individual situation of the asylum seeker in the context of (a) admission as a refugee, (b) granting of a residence permit for compelling reasons of a humanitarian nature on account of a real risk of exposure to a violation of Art. 3 of the ECHR, and (c) granting of a residence permit on account of a possible violation of Art. 3. The Division held that the combination of circumstances described in 2(c) did exist in this case.
In 1992 the State Secretary for Justice still granted asylum seekers the possibility of a residence permit only under 2(b). In his view, possibilities l(b) and 2(c) were adequately incorporated in the so-called ‘toleration’ arrangement, cf., the ruling of the Council of State, Judicial Division of 4 September 1992, 25 NYIL (1994) p. 520, discussed by Dijk, P. v., ‘Article 3 ECHR and Asylum Law and Policy in the Netherlands’, in Lawson, R. and de Blois, M., eds., The Dynamics of the Protection of Human Rights in Europe, Vol. III, pp. 143–150Google Scholar. In 1994, this arrangement was ultimately included in that of the provisional residence permit as contained in the Aliens Act, under Art. 12b, cf., 26 NYIL (1995) pp. 312–313. This provisional permit could only be granted by the State Secretary; it could not be applied for by the asylum seeker. The District Court evidently believed that the possibility of the provisional residence permit could be sensibly considered in addition to the possibilities at l(b) and 2(c) during the appeal against the refusal to grant asylum.
45. Discussed by Bruin, R. in NAV (1995) p. 324Google Scholar et seq. Summarised in NJB (1995) p. 160 (No. 121).
46. Note by B.P. Vermeulen.
47. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76. For the text of Art. 1(F) see under Held.
48. For the text of Art. 15 see supra n. 41.
49. For the text of Art. 3 see supra n. 40.
50. 25 NYIL (1994) p. 523.
51. In the case of H. v. State Secretary for Justice, the Ministry of Foreign Affairs refused to hand over data that could show that H. had committed crimes as referred to in Art. l(F)(c) in Afghanistan; the reason for its refusal was the security of the informants. The Administrative Justice Division regarded this as a reason for doubting the correctness of the refusal to admit H. as a refugee. Even the opinion of the Representative of the UNHCR - applicability of Art. l(F)(a) and (b) - did not cause the Division to change its mind. See the judgment of 17 January 1995, NAV (1995) p. 382 RV (1995) No. 1 with note by B.P. Vermeulen.
52. Summarised in NJ (1995) No. 107, with note by D.W.F. Verkade.
53. With note by H. Cohen Jehoram.
54. OJ (1993) No. C 312/3, Informatie/AMI (1994) p. 91, with note by Feenstra, J.J. and Krawczyk, S.. Discussed by H. Cohen Jehoram in ‘Het Phil Collins-arrest: een aardverschuiving in het (inter-) nationale auteursrecht?’, Informatie/AMI (1994) pp. 83–87.Google Scholar
55. 298 UNTS p. 11; Trb. 1957 No. 74. Art. 7, first paragraph, 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.’
By 1 November 1993 Art. 7(1) had been renumbered in Art. 6(1) in the Treaty establishing the European Community of Maastricht of 7 November 1992, cf., Trb. 1992 No. 74.
56. Trb. 1972 No. 157. Art. 2(7) reads: ‘Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial design and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.’
57. Intellectuele Eigendom en Reclamerecht (1991) No. 33 and NIPR (1991) No. 403.
58. With note by A.H.J. Swart; summarised in DD (1995) No. 46.
59. Entry into effect on 30 January 1983. For the full name and source of the Agreement, see under Held.
60. For the text of Art. 15, see under Held. In addition to the source mentioned there, the Convention is also published in 472 UNTS p. 185 and ETS No. 30.
61. For the relevant texts see under Held.
62. For the text of Art. IX see under Held.
63. Germany had also requested the extradition of Z. Z. had Moroccan nationality. On 21 September 1993 the District Court of Roermond held that the request for extradition was admissible. Z.'s appeal in cassation against this judgment was dismissed by the Supreme Court on 18 January 1994 (information from the opinion of Mr Meijers, the Procurator General).
64. For a previous application of Art. IX(2) in a case of urgency, see 20 NYIL (1989) p. 347, fn. 166.
65. The Supreme Court did not therefore follow the argument of the Procurator General that Z. could not in this case derive any right from the provisions of the Agreement.
66. Note by J.H. Jans.
67. Act of 1985, Stb. 1985 No. 47.
68. Directive on the assessment of the effects of certain public and private projects on the environment of 27 June 1985, Pb (1985) No. L 175/40.
69. KG (1988) No. 229, AB (1988) No. 407, with note by F.H. van der Burg.
70. Arts. 7, 8 and 9 read as follows:
Art. 7: ‘Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be affected so requests, the Member State in whose territory the project is intended to be carried out shall forward the information gathered pursuant to Article 5 to the other Member State at the same time as it makes it available to its own nationals. Such information shall serve as a basis for any consultations necessary in the framework of the bilateral relations between two Member States on a reciprocal and equivalent basis.’
Art. 8: ‘Information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.’
Art. 9: ‘When a decision has been taken, the competent authority or authorities shall inform the public concerned of: – the content of the decision and any conditions attached thereto; – the reasons and considerations on which the decision is based where the Member States' legislation so provides. The detailed arrangements for such information shall be determined by the Member States. If another Member State has been informed pursuant to Article 7, it will also be informed of the decision in question.’
71. Art. 24a concerns the obligation of municipal councils to alter local plans in accordance with the order of the direction, and Art. 26 concerns the duty to vacate and/or demolish dwellings or make arrangements for insulating materials in accordance with the alteration to the local plan.
72. Summarised in NJB-katern (1994) p. 511 (No. 200) and DD (1995) No. 5.
73. Note by L.E.M. Hendriks.
74. With note by E.H.P. Brans and W.T.M. Uilhoorn, text of the case and comment summarised in English on pp. 82–83; also in Euro CL (1995) Vol. 3, No. 122.
75. This is within territorial waters. The width of the territorial waters is 12 nautical miles, cf., 17 NYIL (1986) p. 244.
76. Act of 14 December 1983, Stb. 1983 No. 683. Art. 5(1) reads: ‘It is forbidden to discharge a toxic substance from a ship into the sea, except in the cases and in the manner specified by or pursuant to Order in Council.’ Cf., also in 15 NYIL (1984) pp. 419–420.
77. Institute's Collection No. 3995.
78. As evidence, the Court of Appeal used, inter alia, the following official police report, drawn up under oath of office by A.d.B., Constable of the National River Police: ‘Experience has taught me over the years that the radar equipment, which has been specially designed to detect oil from the air, does not show up small quantities of oil on the screen. As a result of my many years of experience, I saw on 12 April 1989, when I was in position N 52 26.2 and E 004 23.7, a discharge of mineral oil from a vessel known as the Goldcrest, because the surface water showed colour variations which are characteristic of mineral oil on the surface of the water.’
79. Orderof 27 March 1986, Stb. 1986No. 160. Art. 9(3) reads: ‘Rules governing the discharge of oil. 1. Subject to the provisions of Articles 10 and 11 and the provisions of paragraph 2, every discharge into the sea of oil residues or mixtures containing oil from ships is prohibited, unless all the following conditions are met: […] 3. The provisions of paragraph 1 shall not apply to the discharge of clean ballast or of separate ballast […].’
80. Note by van der Veen, G. A.. Summarised in NJB-katern (1995) p. 299Google Scholar (No. 23) and in Nilos Newsletter (1995) No. 12, p. 4.
81. Art. 14 reads: ‘(1) Subject to the provisions of these Articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea. (2) Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. (3) Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. (4) Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these Articles and with other rules of international law […].’
82. Art. 18 reads: ‘(1) Passage means navigation through the territorial seas for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. (2) Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.’
83. Art. 91 reads: ‘A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.’
84. Cf., 18 NYIL (1987) p. 402.
85. Cf., 10 NYIL (1979) p. 507.