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Netherlands judicial decisions involving questions of public international law, 1995–1996*

Published online by Cambridge University Press:  07 July 2009

L.A.N.M. Barnhoorn
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Netherlands Yearbook of International Law , Volume 28 , December 1997 , pp. 325 - 380
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Copyright © T.M.C. Asser Press 1997

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References

1. With critical note by A.A.L. Beers.

2. Act of 3 December 1987, Stb. 1987 No. 635. It is provided in Art. 8 (2) that the Internal Security Service has the following duties: ‘(a) the gathering of information concerning organisations and persons seriously suspected, on account of either the objectives which they set themselves or their activities, of posing a threat to the continuation of the democratic rule of law or to the security or other important interests of the State; (b) the carrying out of security screening for the filling of positions of trust or of positions in trade and industry which, in the view of the ministers with relevant responsibility, offer the possibility of prejudicing the security or other important interests of the State; (c) the promotion of measures to protect information that must be kept secret in the interests of the State and of those parts of the public service and of trade and industry which are, in the view of the minister with the relevant responsibility, of vital importance to the continuation of community life’.

3. 213 UNTS p. 221; ETS No. 5; Trb. 1964 No. 69. For the text of Art. 8 see under Held.

4. For the text of Art. 13 see under Held.

5. Under Article 16, paragraph 1, of the Intelligence and Security Services Act, personal data are gathered, registered and supplied to third parties only in so far as this is necessary for the performance of a duty defined in this Act. Under Art. 16, paragraph 2, first sentence, of the Act, the head of the security service is required to act in accordance with the instructions of the relevant minister as regards the provision of personal data to third parties. Under the second sentence of this article, personal data may be supplied to persons other than government bodies only with the prior authorisation of the relevant minister in the cases of types or types of case defined in the authorisation in question. And under Art. 16, paragraph 3, of the Act, the Minister of the Interior lays down rules, in agreement with the Minister of Justice, regarding the management of the databases kept by the relevant service.

6. AB (1994) No. 344, with critical note by A.A.L. Beers. It should be noted that the person in question was not the same X. as in the present case.

7. Publ. ECHR, Series A, Vol. 116.

8. Publ. ECHR, Series A, Vol. 28.

9. Publ. ECHR, Series A, Vol. 82.

10. Publ. ECHR, Series A, Vol. 30.

11. Note by Simon, H.. Summarised in NJB (1996) p. 87Google Scholar (No. 5). Discussed by Boeles, P. in ‘Legal Remedies for Asylum Seekers’, 43 NILR (1996) pp. 316–317.Google Scholar

12. Note by A.B. Terlouw.

13. 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. 16(2) see under Held.

14. Art. 94 reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.’

15. See 24 NYIL (1995) p. 315.

16. For the text of Art. 16(1) see under Held.

17. 999 UNTS p. 171; ILM(1967)p. 368; Trb. 1969 No. 100. For the text of An. 26 see under Held.

18. For the texts of Arts. 6, 13 and 14 see under Held.

19. The Division used the English text of this Article of the Convention and of all Articles referred to below.

20. See 12 NYIL (1981) p. 317.

21. With note by A.C. ‘t Hart.

22. 39 UNTS p. 56; Stb. 1933 No. 236.

23. Art. 1 reads: ‘Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. […]’ Art. 2 reads: ‘For the purposes of this Convention the term “forced or compulsory labour” shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. Nevertheless, for the purposes of this Convention, the term “forced or compulsory labour” shall not include: (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at thedisposal of private individuals, companies orassociations; (d) […]; (e) minor commercial services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.’

24. For the text of Art. 94 see supra n. 14.

25. The Court of Appeal also held that the obligation of the accused to perform alternative national service for a period longer than military service, as based on Article 12 of the Military Service Conscientious Objections Act, was not contrary to the principle of freedom of conscience and the principle of equality as safeguarded in Articles 9 and 14 ofthe European Convention on Human Rights and Articles 18 and 26 of the International Covenant on Civil and Political Rights.

26. In his opinion, Advocate-General Fokkens did not answer the question of whether the relevant articles have direct effect. He referred to section 30 of Report III ofthe 1979 International Labour Conference (General Survey of the Reports relating to the Forced Labour Convention), and concluded that the Convention did not relate to alternative national service and that the arrangement for alternative national service could not therefore conflict with the Convention.

27. Discussed in NAV (1995) p. 636 and by T. Spijkerboer in his note to RV (1995) No. 17.

28. Trb. 1990 No. 145. Unofficial English translation in 30 ILM (1991) p. 84 and Schemers, H.G. et al. , Free Movement of Persons in Europe, 1993, p. 552Google Scholar. Art. 29(4) reads: ‘Notwithstanding paragraph 3 every Contracting Party shall retain the right, for special reasons concerning national law in particular, to process an application for asylum even if under this Convention the responsibility fordoing so is that of another Contracting Party.’ Article 30(2) reads: ‘If a Contracting Party has undertaken the processing of an application for asylum in accordance with Article 29(4) the Contracting Party responsible under paragraph 1 of the present Article shall be relieved of its obligations.’

29. Cf., 26 NYIL p. 313. Art. 15b(1)(a) reads: ‘An application for admission as a refugee shall not be granted if it is not admissible because: (a) another country, party to the Geneva Convention relating to the Status of Refugees (Trb. 1966 No. 197) in accordance with a treaty or a decision of an international organisation binding this country and the Netherlands, is responsible forprocessing the application, unless such an application is founded on relevant facts which could not have played any role in the decision by the authorities of that country; […]’

30. Art. 31 reads: ‘1. The Contracting Parties shall endeavour to determine as quickly as possible which of them is responsible for processing an application for asylum. 2. If an application for asylum is addressed to a Contracting Party which is not responsible under Article 30 by an alien resident within its territory, that Contracting Party may request the Contracting Party responsible to take responsibility for the applicant for asylum in order to process his application for asylum. 3. The Contracting Party responsible shall be bound to take responsibility for the applicant for asylum referred to in paragraph 2 if the request is made within six months of the submission of the application for asylum. If the request is not made within that time, the Contracting Party to which the application for asylum was submitted shall be responsible for processing the application.’

31. Art. 1 reads: ‘For the purposes of this Convention: […] Processing of an application for asylum shall mean all the procedures for examining and taking a decision on an application for asylum, including measures taken in implementation of a final decision thereon, with the exception of the determination of the Contracting Parties responsible for the processing of an application for asylum under this Convention.’

32. The description of the facts has been taken from NAV (1995) p. 636. This description differs slightly from that given by T. Spijkerboer in his note to RV (1995) No. 17, p. 62.

33. In later judgments the District Court held that in reviewing the way in which the State Secretary had used the power to derogate from Art. 29 (4) they could only determine whether the power had, prima facie, been exercised reasonably (marginale toetsing); see the judgments of 17 November 1995 (RV (1995) No. 16), 6 December 1995 (RV (1995) No. 17) and 1 March 1996 (GV No. 18b-14). In the last of these judgments, the District Court held that on the basis of the decision of the Executive Committee of 27 June 1994 (Trb. 1994 No. 217, p. 21, at Art. 31) the requested State should decide whether or not to grant the request for transfer within a period of three months. In the absence of a reaction, the requested State is deemed on the expiry of this period to be responsible for processing the application for asylum. The State Secretary had taken no further action after the expiry of the three month period. Nonetheless, the District Court held that the State Secretary had not acted in breach of the principles of proper administration by not taking advantage of the possibility of Art. 29(4), since clarity had been obtained about the processing of the application for asylum three weeks after the expiry of the three-month period and the persons concerned had been informed of a possible request to Portugal within that period. As regards the binding force of the decisions of the Committee, see 24 NY1L (1993) p. 231.

34. The President was in fact referring to Art. 30(2),

35. A detailed procedure was laid down on 27 September 1995 in an INS work instruction, which was published in NAV (1995) pp. 942–943. In its judgment of 6 December 1995 the District Court held that this instruction was not contrary to the provisions of Art. 29(4) of the Agreement, cf., RV (1995) No. 17.

36. In the judgment of 17 January 1996 in the case of W.I. v. the State Secretary for Justice, The Hague District Court held that once it had been established under Art. 30 of the Implementation Agreement which State is responsible for processing the application for admission as a refugee (in this case France), an application for the issue of a residence permit on humanitarian grounds (C status) follows the asylum application. Under the Agreement it not desirable that these applications should be dealt with separately. The State that decides on the main application (i.e., for asylum) should also decide on the lesser application (i.e., for C status). The District Court considered that I.'s arguments against this, in particular her reference to the relationship between the Refugee Convention, the European Convention on Human Rights, the Anti-Torture Convention and the Implementation Agreement, failed since I. would under no circumstances be expelled to the country of origin, and there was also no evidence that France would not fulfil its obligations under these conventions (NAV (1996) p. 312, discussed by Lankers, F. in NAV (1996) p. 254 et seq.).Google Scholar

37. 200 UNTS p. 3; Trb. 1951 No. 139.

38. The ship was originally wrongly arrested by Van der Linden as being the former ‘Altair’.

39. 374 UNTS p. 3; BT I; Trb. 1960 No. 40. An. 5 reads: ‘Aliens in possession of the necessary documents and having adequate means of subsistence or the possibility of acquiring such means by legally authorised work may enter Benelux territory provided that they are not designated as undesirable in that territory or deemed likely to endanger public law and order or nationality security.’

40. 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, para. 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 immediate implementation of the decision. A provisional measure may also be made at his request in order to prevent disproportionate harm as referred to in the first sentence.’

41. The judgment mentions that Mrs J. T., who works for the Unrepresented Nations and Peoples Organisation (UNPO) in The Hague, was heard as an expert witness.

42. Discussed in NAV (1995) p. 638.

43. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

44. Art. 12a reads: ‘1. Our Minister is authorised to grant, extend and cancel any provisional residence permit. 2. A provisional residence permit shall be granted for a period not exceeding one year. 3 Our Minister may extend the period of validity of a temporary residence permit in each case by one year. 4. A temporary residence permit shall be cancelled if an when the obstacles to expulsion are removed.’ Art. 12b reads: ‘1. Our Minister may grant a provisional residence permit to an alien who has arrived in the Netherlands and has submitted an application for admission if, in the opinion of Our Minister, forced deportation to the country of origin would result in exceptional hardship for the alien concerned in connection with the overall situation in that country. 2. The granting of the provisional residence permit on the ground referred to in paragraph 1 shall have the result that the original request for admission to the competent authorities irrevocably ceases to be eligible for consideration until such time as the alien concerned is notified of the cancellation of the permit.’

45. 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.”

46. Art. 15 reads: ‘Aliens originating 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 to a certain social group, may request Our Minister to grant them admission as a refugee.’

47. The Division evidently referred to the fact that the Pact of Minsk, which had been previously signed on 8 December by the presidents of Russia, Ukraine and Belorussia and in which the establishment of a Commonwealth of Independent States was recorded, was formalised by all the former Soviet republics on that day in Alma Ata. The Kingdom of the Netherlands recognised 10 of the CIS Member States on 24 January 1992 by an order of the Council of Ministers of the Kingdom, after the Twelve EC Member States had declared on 24 January 1992 that they would be prepared to recognise such of the CIS Member States as responded positively to the EC Directives on the recognition of new member states in Eastern Europe and the Soviet Union. Recognition of the Russian Federation was not considered necessary since it could be deemed to be the successor-inlaw of the former Soviet Union. In view of the chaotic situation in Georgia, recognition of that republic was not under consideration. Cf., Bijl. Hand. II 1001–1992, 22229 No. 9, pp. 1–4 and 22511 No. 1, pp. 1–2 and A. Bos, ‘Statenopvolging in net bijzonder met betrekking tot verdragen’ (State succession with particular reference to treaties) in Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (1995) No. 111, pp. 30–40. The Alma Ata Agreement was published in ILM (1992) p. 138.

48. As the State Secretary had in the meantime granted X. an unrestricted residence permit on humanitarian grounds, the Division no longer had to consider the question of the appeal against the previous refusal of the permit.

49. Discussed by R. Bruin in NAV (1996) p. 40 et seq. and pp. 352–358, by H. Meyers in NAV (1996) pp. 456–457 and by R. Fernhout, T.P. Spijkerboer and B. Vermeulen in Vervolging zonder overheid: vluchtelingenschap of niet? (Persecution without government authorities: refugee status or not?) in NJB (1996) pp. 347–352.

50. Note by T.P. Spijkerboer.

51. For the text of Art. 1 (A)(2), see supra n. 45.

52. In using the expression ‘Schengen Agreement’ the Division was probably referring not to the Agreement of 14 June 1985, Trb. 1985 No. 102, but to the Agreement of 19 June 1990 implementing the Agreement, Trb. 1990 No. 145.

53. In its judgment of 11 July 1996 the Aliens Law Uniform Application Chamber of the District Court of The Hague stated in the case of H.H.M. v. the State Secretary for Justice that it was not convinced by the interpretation given by the Administrative Law Division. However, it did not go into the matter because the respondent had already taken the position in its statement of defence that, since the official communiqué of the Minister of Foreign Affairs of 17 May 1995, forms of government authority once again existed in Somalia. The official communique noted that new local and regional administrative structures had been created in Somalia. According to the respondent, it followed that the judgment of the Division was no longer of significance to cases which had not been decided at first instance or on notice of objection before 17 May 1995. As a decision on the request for review was taken in the present case only on 29 June 1995, the District Court therefore examined whether M. was eligible for admission as a refugee having regard to the situation in Somalia. Although the general situation provided no grounds for conferring refugee status, the personal circumstances of M. did do so. The District Court therefore quashed the decision refusing M.'s admission as a refugee (NAV (1996) p. 725, discussed on p. 662, also published in GV No. 18a-165 and RV (1996) No. 9 with comment by T.P. Spijkerboer).

54. The State Secretary had by this time granted C. an unrestricted residence permit on humanitarian grounds, with the result that the Division no longer needed to consider die appeal lodged against the earlier refusal of the permit. Since 1 January 1994 Bosnians had generally been eligible only for a provisional residence permit as referred to in Article 12b of the Aliens Act (for the text of Art. 12b see above n. 44 and 26 NYIL (1995) p. 312). The District Court of The Hague held in its judgment of 14 December 1994 that in view of the large influx of Bosnians it was reasonable for the State Secretary to have decided to suspend the decision on applications for asylum (discussed in NAV (1995) p. 514). On 23 October 1995 the State Secretary altered his policy by means of Work Instruction No. 26, and directed that requests for asylum be processed once again (see NAV (1995) p. 613 and (1996) p. 992). The conclusion of the Dayton Accord on 21 November 1995 (signed in Paris on 12 December 1995, ILM (1996) p. 75) prompted the State Secretary once again to limit the granting of ‘A’ status as far as possible and for the most part to grant only provisional residence permits (see NAV (1995) p. 1048). As the present case shows, however, ‘C’ status too could be granted (see also NAV (1996) p. 325). It was this which led the District Court of The Hague to ask the State Secretary in a letter of 28 May 1996 for an explanation of the policy (NAV (1996) p. 610). In its judgment of 7 November 1996 the District Court of The Hague subsequently criticised the State Secretary for a lack of consistency (GV No. 18a-20, RV (1996) No. 11 with comment by R. Fernhout and discussed in NAV (1996) p. 992).

55. Discussed by A. Bos, op. cit. n. 47, p. 45.

56. For the text of Art. 6, see under Held.

57. Art. 33 (1) reads: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

58. Art. 10(1) reads: ‘Extradition shall not be allowed in cases where, in Our Minister's opinion, there are well-founded reasons to assume that compliance with the request will result in the person claimed being persecuted, punished or otherwise affected by reason of his religious or political opinion, his nationality, race or social group to which he belongs.’

59. The Minister for Foreign Affairs informed the Lower House in writing on 22 December 1993 that the Netherlands had entered into diplomatic relations with Macedonia on 16 December 1993, cf., Bijl. Hand II, 1993–1994, 23400 V, No. 49. He had previously informed the House on 19 April of that year that the Netherlands had recognised Macedonia after Macedonia had been admitted as a member of the UN (following the passing of a resolution by the General Assembly of the United Nations that had been proposed among others by the European Community and its Member States), cf., Bijl. Hand. II 1992–1993, 22181, No. 47.

60. The Minister of Justice decided on 4 April 1996 to allow the extradition and L. was subsequently extradited. The second application for asylum was finally refused on 10 May 1996. As L. and his family were already in Macedonia at this juncture, it was decided not to lodge an objection.

61. Cf., 20 NYIL (1989) pp. 320–322.

62. 182 Parry CTS p. 346.

63. The text reads as follows: ‘The Governments of the Kingdom of the Netherlands and the former Yugoslav Republic of Macedonia exchanged notes on 11 July 1994 reconfirming the continued application of bilateral treaties between the Kingdom of the Netherlands and the former Socialist Federal Republic of Yugoslavia, including the present Treaty, unless it is evident from the Treaty or is established in some other way that the application of the Treaty would completely change the conditions for the operation of the Treaty or unless the two States otherwise agree.’

64. Cf., 7 NYIL (1975) pp. 324–325.

65. Note by A.H.J. Swart.

66. Note by Swart, A.H.J.. Summarised in NJB-katern (1994) p. 590Google Scholar (No. 250 C).

67. See infra under Held.

68. Upheld on appeal by the Court of Appeal of Leeuwarden on 30 July 1992.

69. R. also applied for an order cancelling the declaration of 31 July 1984 that he was an undesirable alien. He had already twice challenged this declaration, pursuing his case to the highest authority. Most recently, the Judicial Division of the Council of State had dismissed his appeal on 7 April 1992. On 30 June 1992 he applied for a residence permit, which was refused on 24 July. It had also been decided that any request for review would not have the effect of staying the expulsion and he was also told that he would have to leave the Netherlands after his release. On 31 July he requested a review of the refusal to grant a residence permit. In the present interim injunction proceedings R. finally requested suspension of the expulsion pending a decision on the request for review.

70. KG (1992) No. 314, MR (1992) No. 149, RV (1992) No. 99, with note by A.H.J. Swart. The President dismissed the application for cancellation of the declaration that R. was an undesirable alien and the application to suspend the expulsion pending the request for review of the decision to refuse a residence permit (see n. 69 above).

71. Compare the description of the facts in the judgment of the District Court of The Hague of 14 August. It was evident from the judgment of the Court of Appeal of The Hague of 16 September (see below) that the Dutch Ministry of Justice had informed the Home Office in London by telephone and had then also inquired whether it would not be possible to cancel the hospital orders. This was refused.

72. The District Court of Assen held on 7 September 1992 that the application of the Public Prosecutor to have the extradition request processed was not admissible.

73. R. did not actually lodge complaints with the European Commission against die Netherlands and the United Kingdom for violation of Article 3 of the European Convention on Human Rights until after the judgment of the Court of Appeal of The Hague (see below). Both complaints (23669/94 and 25527/94) were declared inadmissible on 29 June and 29 November 1994 (according to A.H.J. Swart in the note on the judgment of the Supreme Court).

74. KG (1992) No. 315, MR (1992) No. 150, RV (1992) No. 99, with note by A.H.J. Swart.

75. In respect of the dismissal of the requests to cancel the declaration that he was an undesirable alien and to order that the decision had staying effect.

76. KG (1993) No. 368, MR (1994) No. 11, RV (1993) No. 99, with note by A.H.J. Swart.

77. XI NILR (1963), p. 303. The criterion can be found in the following considerations set out in the judgment: ‘The fact that in the present case the expulsion of an alien from the territory of the State of his residence will in fact bring him within the jurisdiction of a State in which he may anticipate prosecution or enforcement of a penalty, does not in itself legitimate the conclusion that the expulsion is identical to an extradition. If, as is the case under Netherlands law, extradition can only take place pursuant to an extradition treaty, and with due legal guarantees, any mode of expulsion by which the expelling State were, without any reasonable necessity, to envisage or carry out an extradition, would be illegal. But there is no question of any such expulsion in this case, since the State of the Netherlands has with regard to W. no other motives than to remove an ineligible alien from its territory. His transfer to the United States will only be effectuated because W. cannot indicate any other country willing to receive him. An effective removal of W. from Netherlands territory will only be possible by conducting him to the United States. The Rome Convention is of no avail to him.’

78. Discussed by Kamminga, M. and Thijssen, M. in ‘Pinochet, Nederland en het VN-Verdrag tegen Foltering’ (Pinochet, the Netherlands and the UN Convention against Torture) in NJCM-Bulletin (1995) pp. 986–995Google Scholar and by Ingelse, C. and der Wilt, H. van in ‘De Zaak Pinochet. Over universele rechtsmacht en Hollandse benepenheia’ (The Pinochet case. About universal jurisdiction and Dutch pusillanimity), NJB (1996) pp. 280–285.Google Scholar

79. ILM (1984) p. 1027; Trb. 1985 No. 69.

80. Kamminga and Thijssen, op. cit. n. 78, p. 986, i.e., in the period between the date on which the Netherlands became a party to the UN Convention against torture (20 January 1989) and the date on which General Pinochet resigned as President (11 March 1990). The facts were taken from the monthly issue of Informe Mensuel Nos. 95 and 96 of November/December 1989, pp. 42 and 43, of the Chilean human rights committee known as Comision Chilena de los Derechos Humanos.

81. Art. 12 reads: ‘1. If an offence is not prosecuted or the prosecution is not pursued, a party having a direct interest may submit a written complaint about this to the court of appeal within whose jurisdiction the decision not to prosecute or not to pursue the prosecution has been taken. 2. A party having a direct interest is deemed to include a legal entity which, according to its objects and as evidenced by its actual work, represents an interest that is directly affected by the decision not to prosecute or not to pursue the prosecution.’

82. Art. 5 reads: ‘1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) when the alleged offender is a national of that State; (c) when the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 of any of the States mentioned in paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.’

83. According to Kamminga and Thijssen, op. cit. n. 78, p. 987, the UN Committee against Torture requested the Netherlands on 25 April 1995 for additional information concerning the decision not to prosecute the general. The Committee was interested above all in the question of whether the Amsterdam Public Prosecutor had investigated the possibility of prosecuting Pinochet when he was in Dutch territory. They referred in this connection to UN Doc, CAT/C/XIV/CRP. 1/-Add.5, p. 3.

84. Trb. 1992 No. 145, p. 2, states that the relevant amendments, as proposed by Norway, were notified by the Secretary General of the UN to the Contracting Parties on 24 July 1991. As none of the Contracting Parties objected to the amendments before 24 December 1991, they came into force on 24 April 1992.

85. According to Trb. 1992 No. 145, p. 62, the date of 3 October was derived from the fact that the relevant amendment was deemed to have been published in the Netherlands on the day after the publication of relevant issue of the Dutch Treaty Series (Trb), i.e., 2 October 1992 (pursuant to Art. 5, second sentence, of the Kingdom Act relating to the publication of treaties, of 22 June 1961 (Stb. 1961 No. 207).

86. The Dutch translation was not published until 17 June 1994 (Trb. 1994 No. 123, p. 37).

87. OJ (1985) No. L 370/1.

88. Institute's Collection No. 4062.

89. 1140 UNTS p. 253. For the text of An. 10, see under Held.

90. Art. 7 reads: ‘(1) Subject to the provisions of Aits. 8 to 10, a person employed in the territory of one of the Contracting Parties shall be subject to the legislation of that Party, even if he is resident in the territory of the other Party, or if the principal place of business of the enterprise which employs him, or his employer's domicile, is in the territory of the other Party. (2) If, as a result of the preceding paragraph, an employed person is subject to the legislation of one of the Contracting Parties in whose territory he does not reside, that legislation shall apply to him as if he resided in the territory of that Party.’

91. Besides the Dutch text, there is an authentic French text, which reads: ‘Les autoritds comptentes des Parties Contractantespeuventprivoir, d'un commun accord, des exceptions aux dispositions des articles 7 à 9 en faveur des travailleurs intéressés.’

92. Convention No. 97, 120 UNTS p. 72. The Convention came into force for the Netherlands on 1 January 1959. Art. 6(1) reads: ‘Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which applies to its own nationals in respect of the following matters: […] (b) social security (that is to say, legal provision in respect of employment, injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme) […].’

93. 1155 UNTS p. 331; ILM (1969) p. 679; Trb 1972 No. 51. Art. 30 reads: ‘[…] 3. When all the parties to the earlier treaty are parties also to the later treaty, but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty, 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States parties to both treaties the same rule applies as in paragraph 3; […].’

94. TS No. 93. Art. 18(1) reads: ‘Each Contracting Party undertakes to grant within its territory, to migrant workers and members of their families, equality of treatment with its own nationals, in the matter of social security, subject to conditions required by national legislation and by bilateral or multilateral agreements already concluded or to be concluded between the Contracting Parties concerned.’

95. Art. 1 (2)(f) reads: ‘This Convention shall not apply to: […] (f) workers, who are nationals of a Contracting Party, carrying out specific work in the territory of another Contracting Party on behalf of an undertaking having its registered office outside the territory of that Contracting Party.’

96. Art. 28 reads: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’

97. 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.’

98. Institute's Collection No. 3322.

99. RSV (1993) No. 258, RV (1993) No. 77, with note by P.E. Minderhoud.

100. 19 NYIL (1988) pp. 452–454.

101. Art. 8 (a) reads: ‘The principle laid down in Art. 7 shall be subject to the following exceptions: (a) a person employed in the territory of one of the Contracting Parties by an enterprise for which he normally works and who is assigned to the territory of the other Contracting Party by that enterprise in order to work there on its behalf shall remain subject for the entire period of his assignment to the legislation of the first-mentioned Party, as though he continued to be employed in its territory.’

102. The text of the Agreement was drawn up in English. No Dutch translation has yet been published.

103. The Central Appeals Court also held in its judgment as follows: ‘Nor does the Court, as court of first instance, have any reason to doubt that the Agreement, assessed by the provisions of Article 91(1) of the Constitution, was validly concluded, despite the lack of prior approval by the States-General. Under the additional article XXI of the Constitution, Article 62 of the 1972 version of the Constitution remained in force with regard to the requirement of approval, under which a number of exceptions described in the first sentence of this Article are made to this requirement. The Court considers that in this case the exception referred to in part (d) of that sentence is applicable, which applies if the agreement does not impose any major pecuniary obligations on the Kingdom and has been concluded for a maximum of one year. Nor does the Court see any occasion to hold that the signature of the Agreement, by an official of the Ministry of Social Affairs and Employment after authorisation by telephone by the State Secretary for that ministry, took place without authorisation and that it is therefore not binding on the Kingdom.’

104. Part 3 of the ground of appeal reads: ‘In so far as the Court has held that the Agreement may be applied even if there is no basis for this in Article 10 of the Convention, the decision of the Court is once again evidence of an incorrect interpretation of the law. Both under international law and in the national legal order of the Netherlands, the Convention takes precedence over the Agreement.’ This is evident from Article 30 (2) of the Vienna Convention on the Law of Treaties in connection with the text and the scope of the present Convention and the present Agreement, and in the circumstances of the case (including the relationship clearly intended by the parties between the Convention and the Agreement and the way in which the Convention and the Agreement have been concluded) it must also be assumed that the Convention takes precedence in the internal Dutch legal order.

105. Part 4 reads: ‘The Agreement can also not be regarded as a treaty within the meaning of articles 93 and 94 of the Constitution, in view among other things of the way in which it was concluded.’ It is important, inter alia, in this connection that the Agreement concerns on binding arrangement only for the administrations of the Parties to the Agreement.

106. They read: ‘8.4. Art. 93 ofthe Constitution provides that ‘provisions of treaties […], which may be binding on all person by virtue of their contents, shall become binding after they have been published.’ Under Article 5 ofthe old Publication Act, a treaty was deemed to have been published on the thirtieth day after that of the publication of the Treaty Series in which it is placed. The Agreement therefore came into force on 16 December 1987. The provisions that came into force on that day included the provision specifying that it came into force on 1 May 1987 with retroactive effect from 1 January of that year. 8.5. Retroactive effect of this kind is not prohibited: Art. 28 of the Vienna Convention merely provides that the intention to make the treaty retroactive must appear from the treaty itself or in some other way. 8.6. This shows that as far as the retroactive effect is concerned it is not important whether or not it was foreseen when the Agreement was concluded that it might only be published in the Netherlands Treaty Series after some delay.’

107. They read: ‘7.3. In view of its wording (“Each Member … undertakes …”) this Article does not have direct effect. Even if a different view were to be taken, the Agreement would, in the event of conflict, still take precedence on the basis of Article 30 (4)(a) in conjunction with Article 30 (3) of the Vienna Convention on the law of treaties. 7.4. The second reference is to Art. 18 (1) of the European Convention on the legal status of migrant workers. 7.5. However, this Convention too is not applicable in this case, in view of Art. 1 (2) (f).’

108. Summarised in AB kort (1996) No. 278.

109. 1291 UNTS p. 125; Trb. 1979 No. 5. Art. 3 reads: ‘Information of any kind from the chain radar system referred to in Article 1 shall be communicated to third parties only with the consent of the two countries' permanent commissioners for the supervision of shipping in the Scheldt and on the terms established by those commissioners.’ According to the Rules governing the provision of information about the construction of the chain radar system along the Western Scheldt and its estuary (Stc. 1992, No. 135), information my be made available only if the request to this effect is made by or on behalf of a judicial authority.

110. Act of 31 October 1991, Stb. 1991 No. 703. Under Article 10(2)(a), information should not be provided under the Act where the interest thereby served does not outweigh the interest of the relations of the Netherlands with other countries and with international organisations.

111. Discussed in NAV (1995) p. 991.

112. Note by J.D.M. Steenbergen.

113. With note by P. Boeles.

114. Art. 8(1) reads; ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

115. Judicial Division of the Council of State started this standard practice in 1991, namely in its judgments of 9 April 1991 (RV (1991) No. 23), 3 May 1991 (RV (1991) No. 25) and 9 July 1991 (GV No. D13–162). The Supreme Court too referred to this last judgment in its own judgment of 28 May 1993 (NJ (1993) No. 625 with note by A.H.J. Swart). In assessing the legality or otherwise of the refusal, the judge hearing the interim injunction application too should therefore be guided by the method of interpretation of Art. 8 used by the court hearing the merits, i.e., the Judicial Division. The Supreme Court repeated this view in its judgment of 2 June 1995 (RvdW (1995) No. 121 and NJ (1996) No. 582).

116. MR (1995) No. 153, with note by J.D.M. Steenbergen.

117. RV (1995) No. 35, with note by P. Boeles.

118. On 19 February 1996 the European Court of Human Rights gave judgment in the Gül case (53/1995/559/645, NAV (1996) p. 635, GVNo. 22–12, RV(1996) No. 23 with comment by J.D.M. Steenbergen). The Aliens Law Uniform Application Chamber of the District Court of The Hague concluded from this in its judgment of 15 May 1996 in the case of A. and A. v. the Minister for Foreign Affairs that it was no longer right to use the test applied by the Judicial Division (NAV (1996) p. 527, summarised on pp. 428 and 565, discussed by B. Kuik on pp. 565–576). The District Court held, in keeping with the Court of Human Rights, ‘that Article 8 … does not entail any general obligation for the State to respect the choice of domicile of married couples or to enable family reunification to take place in its territory by means of immigration. In order to determine the extent of the (negative or positive) obligations of the State and to assess the decision taken by the State on the competing interests, the facts of the individual case are examined.’ In keeping with the manner adopted by the European Court of Human Rights in the Gül case ‘the District Court will determine whether the admission of the plaintiffs to the Netherlands is the only way in which the plaintiffs and the referring party can develop their family life and, in particular, whether their family life can be carried on in the country of origin.’ In the case in question, the District Court held that the latter was not possible since the spouse and father had ‘C’ status in the Netherlands and he could not reasonably be expected to depart voluntarily to his country of origin (Somalia). In these circumstances, the members of his family must be deemed to be dependent on the Netherlands. The District Court referred in this connection to a judgment of a similar tenor given by the Administrative Law Division in respect of a Somali holder of ‘C’ status on 27 November 1995 (RV (1995) No. 22, with note by J.D.M. Steenbergen and GV No. 22–6).

119. Stc. 2 June 1992 No. 104, p. 22. Cf., 24 NYIL (1993) p. 332, see also 25 NYIL (1994) p. 504.

120. Art. 2 reads: ‘The importation of goods originating or coming from the ‘Federal Republic of Yugoslavia’ (Serbia and Montenegro) is prohibited.’

121. During this period Dutch hauliers were still loading in places in Serbia. They then drove back through Bijeljina in Bosnia, where the TIR carnets were completed, showing that the fruit came from Bosnia. Later the hauliers loaded only in Bijeljina. Others arranged for the transport of the fruit from Serbia to this town in Bosnia.

122. Art. 2 prohibits the importation ofgoods having an unknown origin, without a licence from the Minister of Agriculture, Nature Management and Fisheries.

123. Institute's Collection No. 3878. Discussed by A.P.M.Coomans, F. Grunfeld, Hartogh, K.J. and Jansen, J.F.R. in ‘Doorwerking en effecten van sanctiemaatregelen van de Verenigde Naties’ (Implementation and effects of sanctions by the United Nations), SEW (1995) pp. 501–513Google Scholar. The managing director of Kakatee, W.L.D., was convicted on the same day and sentenced to a term of imprisonment of 4 months and a fine of NLG 200,000 or, alternatively, 180 days' detention. In addition, the District Court ordered that the term of imprisonment of six months imposed on D. by the Court of Appeal of ‘s-Hertogenbosch on appeal on 3 February 1992 for similar offences should be executed after all. Two of the three haulage firms which Kakatee had used to transport the fruit were also sentenced on 3 February 1994 to a fine of NLG 100,000, of which NLG 50,000 was suspended for an operational period of 2 years. A third firm was fined NLG 5,000, as was its managing director. The managing directors of the first two haulage companies were given 2-month suspended prison sentences, with an operational period of two years, and a fine of NLG 5,000 or, alternatively, 180 days' detention, of which NLG 30,000 and 140 days' detention were suspended, with an operational period of 2 years. On 3 May 1994 W.L.D. was again convicted of a similar kind of offence and was sentenced to twelve months' imprisonment, of which six months was suspended. In addition, a fine of NLG 700,000 was imposed and Kakatee was closed for a year (cf., Coomans, op. cit. n. 1, p. 501).

124. Art. 6(1) reads: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. […]’

125. It was partly for the same reason that the fine imposed on D. (see above at n. 123) was reduced by the Court of Appeal on the same day to NLG 50,000. The term of imprisonment of 4 months was converted into a suspended sentence, with an operational period of two years. The execution, as ordered by the District Court, of the prison sentence of 6 months imposed by the Court of Appeal of ‘s-Hertogenbosch on 3 February 1992 was converted into an order for the performance of 240 hours' unpaid community service. As the reasonable period had been exceeded, the fine imposed on two of three haulage firms was reduced to NLG 40,000. The fine on the managing directors of the two firms was reduced to NLG 15,000 or 110 days' detention. The third haulage firm convicted by the District Court and its managing director were acquitted by the Court of Appeal.