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Netherlands state practice for the parliamentary year 1979–1980
Published online by Cambridge University Press: 07 July 2009
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References
1. Cf., 10 NYIL (1979) p. 311
2. Statement of 6 December 1979, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 7 p. 5
3. Trb. 1952 No. 119
4. Stb. 1954 No. 25
5. Agreement of 15 August 1962, Trb. 1962 No. 77
6. Stb. 1962 No. 363
7. See, n. 2 supra pp. 11–12
7a. Human Rights and Foreign Policy, Publication of the Ministry of Foreign Affairs, The Hague 1979; also: Bill. Hand. II 1978/79 - 15571 No. 2
8. See for the text of the Final Act, Annex to Stc. No. 149 of 6 August 1975; also: Bijl. Hand. II 1975/76 - 13600 V No. 6; Conferentie over Veiligheid en Samenwerking in Europa - Helsinki, Genève, Helsinki 1973 - 1975 [Conference on Security and Co-operation in Europe - Helsinki, Genèva, Helsinki 1973 - 1975] Publication of the Ministry of Foreign Affairs No. 115, The Hague 1976
9. Statement of 4 March 1980, Bijl. Hand. II 1979/80 - 15571 No. 5 pp. 15–16.
10. See for the introduction Of the Bill in Parliament, 8 NYIL (1977) p. 205
11. Art. 2 reads: “In compliance with decisions or recommendations by organs of inter-governmental organizations [‘organizations based on international law’] international accords concerning the maintenance or restoration of international peace and security or the promotion of the international legal order, rules may be laid down….”
12. Statement of 13 November 1979, Bijl. Hand. I 1979/80 - 14006 No. 18 pp. 6–8
13. Statement of 1 February 1980, Bijl. Hand. I 1979/80 - 14006 No. 18b p. 2
14. Cf., 11 NYIL (1980) p. 196
15. Note of 14 February 1980, Hand. II 1979/80 pp. 3103–3104
16. Cf., 5 NYIL (1974) p. 205; 6 NYIL (1975) p. 254; 7 NYIL (1976) p. 232; 8 NYIL (1977) p. 157; 9 NYIL (1978) p. 193
17. Art. 39bis, paras. 1 and 2: “Subject to paragraph 2 of the article, any dispute regarding the interpretation or application of this Convention that is not settled through diplomatic channels may be submitted to arbitration by any party or parties to the dispute by means of a written notification to the other party or parties to the dispute. If the arrangements necessary to permit this arbitration to proceed, including the selection of the arbitrator or arbitrators, have not been completed within one year of the date of receipt of the notification, any party or parties to the disputes may submit the dispute to the International Court of Justice for decision in accordance with the Statute of the Court.
Each State Party may at the time of signature or ratification of this Convention or accession thereto declare that it does not consider Itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party which has made such a declaration.”
18. The amendment had the effect of inserting a new article 39 bis, reading as follows: “If any dispute regarding the interpretation or application of this convention is not settled through diplomatic channels, the following procedures shall be followed:
(a) any one of the parties to a dispute concerning the interpretation or application of article 6 or article 33(3) may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;
(b) any one of the parties to a dispute concerning the interpretation or application of any of the other provisions of this Convention may by a written notification to the other party or parties to the dispute, submit it to arbitration. The arbitration award shall be final and binding on the parties to the dispute. If the arrangements necessary to permit this arbitration to proceed, including the selection of the arbitrator or arbitrators, have not been completed within one year of the date of receipt of the notification, any party or parties to the dispute which are not primarily responsible for the failure to complete the arrangements may submit the dispute to the International Court of Justice for decision in accordance with the Statute of the Court.”
The amendment was withdrawn at the 52nd meeting of the Committee of the Whole.
19. Art. 6: “The present articles apply only to the effects of a succession of States occurring in conformity with international law and, in particular, the pinciples of international law embodied in the Charter of the United Nations.”
Art. 33 para. 3: “Notwithstanding paragraph 1, if a part of the territory of a State separates from it and becomes a State in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent State, the Successor State shall be regarded for the purposes of the present articles in all respects as a newly independent State.”
20. Statement of 4 August 1978, United Nations Conference on Succession of States in respect of Treaties, Official Records Vol. II, New York, 1979, Doc. A/CONF.80/16/Add. 1 p. 79.
21. Cf., 10 NYIL (1979) p. 317; 11 NYIL (1980) p. 197.
22. Report of the International Law Commission on the Work of its Thirty-first Session, 14 May - 3 August 1979, GAOR, 34th Session, Suppl. No. 10 (A/34/10), especially p. 7 et seq.
23. Art. 15 reads: “The articles in the present Part apply to the effects of a succession of States in respect of State debts.”
Art. 16 reads: “For the purposes of the articles in the present Part, ‘State debt’ means:
(a) any financial obligation of a State towards another State, an international organization or any other subject of international law;
(b) any other financial obligation chargeable to a State.”
Art. 17 reads: “A succession of States entails the extinction of the obligations of the predecessor State and the arising of the obligations of the successor State in respect of such State debts as pass to the successor State in accordance with the provisions of the articles in the present Part.”
Art. 18 reads: “1. A succession of States does not as such affect the rights and obligations of creditors.
2. An agreement between the predecessor State and the successor State or, as the case may be, between successor States, concerning the respective part or parts of the State debts of the predecessor State that pass, cannot be invoked by the predecessor State or by the successor State or States, as the case may be, against a third State or an international organization asserting a claim unless:
(a) the consequences of that agreement are in accordance with the other applicable rules of the articles in the present Part; or
(b) the agreement has been accepted by that third State or international organization.”
24. Art. 19 para. 2 reads: “In the absence of an agreement, an equitable proportion of the State debt of the predecessor State shall pass to the successor State, taking into account, inter alia, the property, rights and interests which pass to the successor State in relation to that State debt.”
Art. 22 para. 1 reads: “When a part or parts of the territory of a State separate from that State and form a State, and unless the predecessor State and the successor State otherwise agree, an equitable proportion of the State debt of the predecessor State shall pass to the successor State, taking into account all relevant circumstances.”
Art. 23 reads: “When a predecessor State dissolves and ceases to exist and the parts of its territory form two or more States, and unless the successor States otherwise agree, an equitable proportion of the State debt of the predecessor State shall pass to each successor State, taking into account all relevant circumstances.”
25. “The agreement referred to in paragraph 1 should not infringe the principle or the permanent sovereignty of every people over its wealth and natural resources, nor should its implementation endanger the fundamental economic equilibria of the newly independent State.”
26. “For the purposes of the present articles, ‘State archives’ means the collection of documents of all kinds which, at the date of the succession of States, belonged to the predecessor State according to its internal law and had been preserved by it as, State archives.”
27. “For the purposes of the articles in the present Part, ‘State property’ means property, rights and interests which, at the date of the succession of States, were, according to the internal law of the predecessor State, owned by that State.”
28. “1. When the successor State is a newly independent State
(a) archives, having belonged to the territory to which the succession of States relates and become State archives of the predecessor State during the period of dependence, shall pass to the newly independent State;
(b) the part of State archives of the predecessor State, which for normal administration of the territory to which the succession of States relates should be in that territory, shall pass to the newly independent State.
2. The passing or the appropriate reproduction of parts of the State archives of the predecessor State other than those dealt with in paragraph 1, of interest to the territory to which the succession of States relates, shall be determined by agreement between the predecessor State and the newly independent State in such a manner that each of those States can benefit as widely and equitable as possible from those parts of the State archives.
3. The predecessor State shall provide the newly independent State with the best available evidence of documents from the State archives of the predecessor State which bear upon title to the territory of the newly independent State or its boundaries, or which are necessary to clarify the meaning of documents of State archives which pass to the newly independent State pursuant to other provisions of the present article.
4. Paragraphs 1 to 3 apply when a newly independent State is formed from two or more dependent territories.
5. Paragraphs 1 to 3 apply when a dependent territory becomes part of the territory of a State other than the State which was responsible for its international relations.
6. Agreements concluded between the predecessor State and the newly independent State in regard to State archives of the predecessor State shall not infringe the right of the peoples of those States to development, to information about their history and to their cultural heritage.”
29. Statement of 13 November 1979, Vierendertigste Zitting van de Algemene Vergadering der Verenigde Naties [Thirty-fourth Session of the UN General Assembly], Publication of the Ministry of Foreign Affairs vol. 124 part II (1980) pp. 434 - 436; summary in Doc. A/C.6/34/SR.39 pp. 2 - 4
30. Cf., 4 NYIL (1973) p. 310; 10 NYIL (1979) p. 323; 11 NYIL (1980) p. 199
31. Statement of 30 June 1980, Bijl. Hand. II 1979/80 p. 2693
32. Bijl. Hand. I 1951/52 - 2374 No. 113a p. 5
33. Statement of 6 December 1979, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 7 p. 12
34. Cf., 9 NYIL (1978) p. 197; 4 NYIL (1973) p. 315
35. Bijl. Hand. II 1979/80 - 15800 V No. 90 pp. 2 - 3
36. Cf., 1 NYIL (1970) p. 115
37. Statement of 5 November 1979, Hand.II 1979/80 OCV pp. 321, 322.
38. Statement of 3 November 1976, Hand. II 1976/77 p. 923
39. The Defence Planning Committee is a body on which those Member States are represented which participate in the integrated military structure of the Organization. The following observations on the character of Council decision-making apply mutatis mutandis to decision-making in the DPC.
40. Bijl. Hand. II 1948/49 - 1237 No. 3 p. 11
41. Agreement of 27 January 1950, Stb. 1950 No. K 84
42. Hand. II 1949 p. 170; Hand. I 1949 p. 783
43. Exec. Rep. No. 8, 81st. Cong., 1st Session p. 14 (June 6, 1949)
44. Reply of 28 November 1979, Bijl. Hand. II 1979/80 - 15800 V/X No. 58 pp. 3–5
45. Cf., earlier, 10 NYIL (1979) p. 329; 7 NYIL (1976) p. 247
46. The Accords reached at the Extraordinary Council Session of 28 and 29 January 1966, state, under the heading ‘Majority voting procedure’:
“1. Where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the Members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the Members of the Council while respecting their mutual interests and those of the Community, in accordance with Article 2 of the Treaty.
2. With regard to the preceding paragraph, the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached.
3. The six delegations note that there is a divergence of views on what should be done in the event of a failure to reach complete agreement.
4. The six delegations nevertheless consider that this divergence does not prevent the Community's work being resumed in accordance with the normal procedure.”
See also, V ILM (1966) p. 317
47. Note of 1 September 1980, Bijl. Hand. II 1979/80 - 15800 V No. 126 pp. 2 - 3
48. Reply of 10 June 1980, Aanh. Hand. II 1979/80 p. 2445
49. Cf., 9 NYIL (1978) p. 201; 8 NYIL (1977) p. 163; 7 NYIL (1976) p. 247
50. Report of 23 July 1973, adopted by the Ministers for Foreign Affairs at their meeting in Copenhagen, Jaarboek van het Departement van Buitenlandse Zaken 1973 - 1974 [Yearbook of the Ministry for Foreign Affairs 1973 - 1974], the Hague 1974, Annex I p. 6B
51. Statement of 8 November 1979, Bijl. Hand. II 1979/80 - 15800 V No. 33 p. 51
52. See, 10 NYIL (1979) p. 332
53. Reply of the Minister for Foreign Affairs ad interim, 11 April 1980, Aanh. Hand. II 1979/80 pp. 1863 - 1864
54. Statement of 24 June 1980, Bijl. Hand. II 1979/80 - 16250 No. 5
55. Act of 13 January 1965, Stb. 1965 No. 40
56. Statement of 8 October 1979, Aanh. Hand. II 1979/80 p. 163
57. Memorandum of 3 January 1980, Bijl. Hand. I 1979/80 - 13991 No. 3a pp. 1 - 2
58. Convention of 27 January 1977, Trb. 1977 No. 63
59. See, n. 83 infra
60. Decisions of 9 November 1976, NJ 1977 No. 75; 15 November 1977, NJ 1978 No. 190; 8 November 1977, NJ 1978 No. 35, 9 NYIL (1978) p. 294 n. 56; 8 May 1978, NJ Nos. 314, 315, 10 NYIL (1979) p. 465 and n. 87
61. See infra
62. Statement of 14 December 1979, Bijl. Hand. II 1979/80 - 15971 (R 1132) No. 3 pp. 10 - 11
63. Protocol of 15 October 1975, Trb. 1979 No. 119
64. Art. 1 reads: “For the application of Article 3 of the Convention, political offences shall not be considered to include the following:
(a) the crimes against humanity specified in the Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948 by the General Assembly of the United Nations;
(b) the violations specified in Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 51 of the 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 130 of the 1949 Geneva Convention relative to the Treatment of Prisoners of War and Article 147 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War;
(c) any comparable violations of the laws of war having effect at the time when this Protocol enters into force and of customs of war existing at that time, which are not already provided for in the above-mentioned provisions of the Geneva Conventions.”
65. Convention of 13 December 1957, Trb. 1965 No. 9
66. Trb. 1978 No. 41
67. Statement of 14 December 1979, Bijl. Hand. II 1979/80 - 15965 No. 3 pp. 6 - 7
68. Trb. 1965 No. 9
69. Reply of 21 July 1980, Aanh. Hand. II 1979/80 p. 2947
70. Cf., 9 NYIL (1978) p. 209; 11 NYIL (1980) p. 211
71. Published by Royal Decree of 9 June 1889, Stb. 1889 No. 74
72. Stb. 1899 No. 15
73. Stb. 1898 No. 113
74. Stb. 1895 No. 38
75. Trb. 1962 No. 97
76. Trb. 1965 No. 9
77. Statement of 6 December 1979, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 7 pp. 8 - 9
78. Trb. 1951 No. 114
79. Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, Trb. 1960 No. 37
80. Stb. 1889 No. 74
81. Statement of 25 October 1979, Aanh. Hand. II 1979/80 pp. 331 - 332
82. Convention of 15 May 1972, Trb. 1973 No. 84; Treaty of 11 May 1974, Trb. 1974 No. 184; Convention of 27 January 1977, Trb. 1977 No. 63
83. Art. 6 para. 1 reads: “1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over an offence mentioned in Article 1 in the case where the suspected offender is present in its territory and it does not extradite him after receiving a request for extradition from a Contracting State whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State.”
The offences mentioned in Art. 1 are:
“(a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;
(b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971;
(c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents;
(d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention;
(e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons;
(f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.”
84. Statement of 14 December 1979, Bijl. Hand. 1979/80 - 15972 No. 3 pp. 12 - 13
85. Convention of 20 April 1959, Trb. 1965 No. 10
86. Convention of 13 December 1957, Trb. 1965 No. 9
87. Protocol of 17 March 1978, Trb. 1979 No. 120
88. Art. 1 reads: “The Contracting Parties shall not exercise the right provided for in Article 2(a) of the Convention to refuse assistance solely on the ground that the request concerns an offence which the requested Party considers a fiscal offence.”
89. Protocol of 15 October 1975, Trb. 1979 No. 119
90. Statement of 14 December 1979, Bijl. Hand. II 1979/80 - 15965 No. 3 p. 10
91. Convention of 15 May 1972, Trb. 1973 No. 84
92. Art. 68(3) reads: “No person can be prosecuted for an offence that has finally been dealt with in a foreign State following the fulfilment of a condition set by a competent authority and barring prosecution.”
93. Statement of 14 December 1979, Bijl. Hand, n 1979/80 - 15971 (R1132) No. 3 pp. 5 - 6
94. Cf., 11 NYIL (1980) p. 215
95. See, Letter of the State Secretary of Justice, of 28 February 1977, Bijl. Hand. II 1976/77 - 14385 No. 1 p. 2
96. Bijl. Hand. II 1979/80 - 15649 No. 33 pp. 2, 3
97. Statement of 18 April 1977, Aanh. Hand. II 1976/77 p. 1931
98. Article 429ter: “Any person who participates in, or renders financial or other material assistance to activities directed towards discrimination against people on account of their race shall be liable to a term of detention (hechtenis) not exceeding two months or a fine not exceeding two thousand guilders.”
Article 429quater: “Any person who, in the exercise of his profession or business, discriminates against a person on account of his race when offering goods or services or when fulfulling an offer, shal be liable to a term of detention (hechtenis) not exceeding one month or a fine not exceeding one thousand guilders.”
99. The proposed draft Art. 429quater reads: “1. Any person who, in the exercise of a profession or business, discriminates against a person on account of his race, shall be liable to a term of detention (hechtenis) not exceeding one month or a fine not exceeding ten thousand guilders.
2. This provision is not applicable to acts securing a privileged position for persons belonging to an ethnic or cultural minority group in order to offset factual inequalities.”
100. Bijl. Hand. 1967/68 - 9724 No. 3 p. 5; no. 6 p. 3; cf., 2 NYIL (1971) p. 160
101. Stb. 1971 No. 96
102. Cf., 7 NYIL (1976) p. 261; see p. 208 infra
103. Decisions of 24 June 1975; NJ 1975 No. 450, and 15 June 1976, NJ 1976 (551), 8 NYIL (1977) p. 272
104. Bijl. Hand. II 1978/79 - 15400 No. 2. The Act came into force on 1 March 1980, Stb. 1980 No. 86
105. Memorandum of 27 March 1980, Bijl. Hand. II 1979/80 - 16115 No. 3 pp. 3 - 5
106. Art. 5 reads: “No non-citizen shall be subjected to arbitrary arrest or detention.” Art. 6 reads: “No non-citizen shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
107. Art. 4 reads: “Notwithstanding any distinction which a State is entitled to make between its citizens and non-citizens, every non-citizen shall enjoy at least the following rights, always respecting the obligations imposed upon a non-citizen by article 2, and subject to the limitations provided for in article 29 of the Universal Declaration of Human Rights:
(i) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
(ii) The right to equal access to and equal treatment before the tribunals and all other organs administering justice, and to have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(iii) The right to freedom of movement and to choice of residence within the borders of the State, subject to such restrictions as are provided by law and are absolutely necessary for compelling reasons of public policy, public order, national security, public health or morals;
(iv) The right to leave the country and return to his own country;
(v) The right to marriage and choice of spouse;
(vi) The right to own property alone as well as in association with others;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(x) The right to retain his own language, culture, and traditions.”
Art. 8 reads: “Notwithstanding any distinction which a State is entitled to make between its citizens and non-citizens, every non-citizen shall enjoy at least the following economic and social rights, always respecting the obligations imposed on a non-citizen by article 2:
(i) The right to just and favourable conditions of work, to equal pay for equal work, and to just and fail remuneration;
(ii) The right to repatriate earnings and savings, in accordance with national laws in force;
(iii) The right to join trade unions and participate in their activities, subject to national laws in force;
(iv) The right to public health, medical care, social security, social service and education, provided that the minimum requirements for participation in national schemes are met and that undue strain is not placed on the resources of the State.”
(Text derived from Doc. E/CN.4/1336)
107a. Art. 7 reads: “1. No non-citizen shall be subjected to arbitrary expulsion or deportation.
2. A non-citizen may be expelled from the territory of a State only in pursuance of a decision reached in accordance with law, and shall, except where compelling reasons of national security otherwise require, be allowed to submit reasons against his expulsion and to have his case reviewed by and be represented for the punpose before the competent authority or a person or persons especially designated by the competent authority.”
108. Reply of 13 August 1979, Doc. E/CN.4/1334 p. 14
109. Statement of 4 March 1980, Bijl. Hand. II 1979/80 - 15571 No. 5 pp. 25, 11
110. Cf., 9 NYIL(1978) p. 215
111. See n. 109 supra p. 9
112. See n. 109 supra p. 20
113. Letter of 5 October 1979 to the Second Chamber, Bijl. Hand. II 1979/80 - 15800 V/XVI No. 9 p. 1
114. Cf., 7 NYIL (1976)p. 260
115. Bijl. Hand. II 1979/80 - 15571 No. 23 p. S
116. Cf., 7 NYIL (1976) p. 261
117. Statement of 2 October 1979, Aanh. Hand. II 1979/80, p. 99
118. Resolution 478 (1980)
119. Cf., 4 NYIL (1973) p. 315; 9 NYIL (1978) p. 196
120. Bijl. Hand. II 1979/80 - 16300 No. 1 p. 2
121. Bijl. Hand. II 1979/80 - 16300 No. 2 pp. 1, 8
122. Cf., p. 238 infra; see also, 10 NYIL (1979) p. 383, 11 NYIL (1980) p. 231
123. Jaarboek van het Departement van Buitenlandse Zaken [Yearbook of the Ministry of Foreign Affairs] 1979–1980, Annex 28 p. 73B
124. Statement of 16 May 1980, Bijl. Hand. I 1979/80 - 15800 V/X No. 86c pp. 20 - 21
125. Letter of 9 June 1980, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 19
126. Statement of 6 December 1979, Hand. II 1979/80 p. 183
127. See, 10 NYIL (1979) p. 356
128. Bijl. Hand. II 1951/52 - 2374 No. 3 p. 5
129. Statement of 6 December 1979, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 7 pp. 6 - 7
130. Statement of 3 March 1980, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 10 p. 3
131. Trb. 1979 No. 26
132. Trb. 1953 No. 109
133. Report of the Diplomatic Conference on Maritime Law, Twelfth Session, Second Phase (1968), p. 136
134. Statement of 4 December 1979, Bijl. Hand. II 1979/80 - 15947 No. 3 pp. 4 - 5
135. Reference is made here to the International Law Commission, which prepared the draft articles for this Convention. It made the same observation in its comments on the Article in question. These comments are included in ILC Yearbook 1966 vol. II p. 248.
136. Statement of 6 December 1979, Bijl. Hand. II 1979/80 - 15049 (R 1100) No. 7 p. 19
137. Explanatory Memorandum to the request to put this item on the agenda of the 32nd Session of the UN General Assembly, Doc. A/32/143, Annex.
138. Ibid. para. 14
139. Doc. A/CONF.62/30/Rev.2, Rule 37 and Appendix
140. UNTS vol. 581 p. 76
141. Protocol of 30 October 1947, UNTS vol. 55 p. 308
142. Reply of 31 July 1979, Doc. A/35/312/ Add. 1 pp. 21 - 27
143. Cf., 10 NYIL (1979) p. 360; 11 NYIL (1980) p. 221
144. Report of the International Law Commission on the Work of its Thirty-first Session, 14 May - 3 August 1979, GAOR, 34th Session, Suppl. No. 10 (A/34/10), especially p. 370 et seq.
145. Art. 45 reads: “1. A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty between one or more States and one or more international organizations under articles 46 to 50 or articles 60 and [62] if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or,
(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.
2. An international organization may no longer invoke a ground for invalidating, terminating withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and [62] if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or,
(b) it must by reason of its conduct be considered as having renounced the right to invoke that ground.
3. The agreement and conduct provided for in paragraph 2 shall be governed by the relevant rules of the organization.”
Art. 46 reads: “1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. In the case referred to in paragraph 1, a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
3. An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest.
4. In the case referreed to in paragraph 3, a violation is manifest if it is or ought to be within the cognizance of any contracting State or any other contracting organization.”
146. Statement of 13 November 1979. Vierendertigste Zitting, pp. 438 - 439; summary in Doc. A/C.6/34/SR.39 pp. 5 - 6
147. Cf., 3 NYIL (1972) p. 209
148. Letter of 2 April 1980, Bijl. Hand. II 1979/80 - 15571 No. 20 pp. 2 - 3
149. See, 6 NYIL (1975) p. 291
150. Cf., 5 NYIL (1974) p. 233; 8 NYIL (1977) p. 186; 9 NYIL (1978) p. 224
151. Statement of 5 April 1979, Verslag van de Koninkrijksdelegatie naar de achtste zitting van de derde VN–zeerechtconferentie [Report of the Kingdom Delegation to the eighth session of the Third UNCLOS], vol. I, Annex 8
152. Stb. 1884 No. 40; see also, Trb. 1963 No. 135
153. Stb. 1939 No. 188
154. Trb. 1959 No. 123
155. Reference is here made to François, J.P.A., Handboek van het Volkenrecht [Handbook of International Law], Vol. 1, 2nd ed., Zwolle 1949 pp. 136–138Google Scholar
156. Statement of 25 September 1979, Bijl. Hand. II 1979/80 - 15819 No. 3 p. 4
157. Cf., 10 NYIL (1979) p. 375
158. Proposed as a new Art. 151 para. 3(bis)
159. Statement of 20 April 1979, Verslag van de Koninkrijksdelegatie naar de achtste zitting van de derde VN–Zeerechtconferentie [Report of the Kingdom Delegation to the eighth session of the Third UNCLOS], vol. 1, Annex 5
160. Cf., 8 NYIL (1977) p. 201; 9 NYIL (1978) p. 229; 10 NYIL (1979) p. 379; 11 NYIL (1980) p. 227
161. Report of the ILC on the Work of its Thirty-first Session, 14 May - 3 August 1979, Suppl. No. 10 (A/34/10) p. 228 et seq.
162. Art. 28 reads: “1. An internationally wrongful act committed by a State in a field of activity in which that State is subject to the power of direction or control of another State entails the international responsibility of that other State.
2. An internationally wrongful act committed by a State as the result of coercion exerted by another State to secure the commission of that act entails the international responsibility of that other State.
3. Paragraphs 1 and 2 are without prejudice to the international responsibility, under the other articles of the present draft, of the State which has committed the internationally wrongful act.”
163. Art. 7 reads: “1. The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question.
2. The conduct of an organ of an entity which is not part of the formal structure of the State or of a territorial governmental entity, but which is empowered by the internal law of that State to exercise elements of the governmental authority, shall also be considered as an act of the State under international law, provided that organ was acting in that capacity in the case in question.”
164. Art. 29 reads: “The consent validly given by a State to the commission by another State of a specified act not in conformity with an obligation of the latter State towards the former State precludes the wrongfulness of the act in relation to that State to the extent that the act remains within the limits of that consent.
2. Paragraph 1 does not apply if the obligation arises out of a peremptory norm of general international law. For the purposes of the present draft articles, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
Art. 30 reads: “The wrongfulness of an act of a State not in conformity with an obligation of that State towards another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State.”
165. Under the general plan adopted by the ILC, Part II of the draft will deal with the content, forms and degrees of international responsibility.
166. Art. 31 reads: “1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act was due to an irresistible force or to an unforeseen external event beyond its control which made it materially impossible for the State to act in conformity with that obligation or to know that its conduct was not in conformity with that obligation.
2. Paragraph 1 shall not apply if the State in question has contributed to the occurence of the situation of material impossibility.”
Art. 32 reads: “1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the conduct which constitutes the act of that State had no other means, in a situation of extreme distress, of saving his life or that of persons entrusted to his care.
2. Paragraph 1 shall not apply if the State in question has contributed to the occurence of the situation of extreme distress or if the conduct in question was likely to create a comparable or greater peril.”
167. Statement of 13 November 1979, Vierendertigste Zitting pp. 436 - 438
168. Art. 3 reads: “There is an internationally wrongful act of a State when:
(a) conduct consisting of an action oi omission is attributable to the State under international law; and
(b) that conduct constitutes a breach of an international obligation of the State”.
169. Art. 1 reads: “Every internationally wrongful act of a State entails the international responsibility of that State.”
170. Art. 19 reads: “1. An act of a State which consitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.
2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime.
3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:
(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;
(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.
4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.”
171. Art. 2 reads: “Every State is subject to the possibility of being held to have committed an internationally wrongful act entailing its international responsibility.”
172. Art. 8 reads: “The conduct of a person or group of persons shall also be considered as an act of the State under international law if:
(a) it is established that such person or group of persons was in fact acting on behalf of that State; or
(b) such person or group of persons was in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority.”
173. Art. 10 reads: “The conduct of an oigan of a State, of a territorial governmental entity or of an entity empowered to exercise elements of the governmental authority, such organ having acted in that capacity, shall be considered as an act of the State under international law even if, in the particular case, the organ exceeded its competence according to internal law of contravened instructions concerning its activity.”
174. Art. 5 reads: “For the purposes of the present articles, conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law, provided that organ was acting in that capacity in thecase in question.”
Art. 7 reads: “1. The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question.
2. The conduct of an organ of an entity which is not part of the formal structure of the State or of a territorial governmental entity, but which is empowered by the internal law of that State to exercise elements of the governmental authority, shall also be considered as an act of the State under international law, provided that organ was acting in that capacity in the case in question.”
175. Art. 9 reads: “The conduct of an organ which has been placed at the disposal of a State by another State or by an international organization shall be considered as an act of the former State under international law, if that organ was acting in the exercise of elements of the governmental authority of the State at whose disposal it has been placed.”
176. Art. 18 reads: “1. An act of the State which is not in conformity with what is required of it by an international obligation constitutes a breach of that obligation only if the act was performed at the time when the obligation was in force for that State, international obligation is a complex act constituted by actions or omissions by the same or different organs of the State in respect of the same case, there is a breach of that obligation if the complex act not in conformity with it begins with an action or omission occurring within the period during which the obligation is in force for that State, even if that act is completed after that period.”
177. Art. 21 reads: “1. There is a breach by a State of an international obligation requiring it to achieve, by means of its own choice, a specified result if, by the conduct adopted, the State does not achieve the result required of it by that obligation.
2. When the conduct of the State has created a situation not in conformity with the result required of it by an international obligation, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the State also fails by its subsequent conduct to achieve the result required of it by that obligation.”
Art. 22 reads: “When the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens, whether natural or juridical persons, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the aliens concerned have exhausted the effective local remedies available to them without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment.”
Art. 23 reads: “When the result required of a State by an international obligation is the prevention, by means of its own choice, of the occurrence of a given event, there is a breach of that obligation only if, by the conduct adopted, the State does not achieve that result.”
2. However, an act of the State which, at the time when it was performed, was not in conformity with what was required of it by an international obligation in force for that State, ceases to be considered an internationally wrongful act if, subsequently, such an act has become compulsory by virtue of a peremptory norm of general international law.
3. If an act of the State which is not in conformity with what is required of it by an international obligation has a continuing character, there is a breach of that obligation only in respect of the period during which the act continues while the obligation is in force for that State.
4. If an act of the State which is not in conformity with what is required of it by an international obligation is composed of a series of actions or omissions in respect of separate cases, there is a breach of that obligation if such an act may be considered to be constituted by the actions or omissions occurring within the period during which the obligation is in force for that State.
5. If an act of the State which is not in conformity with what is required of it by an international obligation is a complex act constituted by actions or omissions by the same or different organs of the State in respect of the same case, there is a breach of that obligation if the complex act not in conformity with it begins with an action or omission occurring within the period during which the obligation is in force for that State, even if that act is completed after that period.”
178. Reply of 8 May 1980, Doc. A/CN.4/328/Add. 4 pp. 10 - 12
179. Cf., 9 NYIL (1978) p. 232; 10 NYIL (1979) p. 383; 11 NYIL (1980) p. 231
180. Art. 8 para. 1 reads: “1. The State Party in the territory of which the alleged offender is found, shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.
2. Any person regarding whom proceedings are being carried out in connexion with any of the offences set forth in article 1 shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the law of the State in the territory of which he is present.”
181. See, 10 NYIL (1979) p. 385
182. Statement of 9 October 1979, Vierendertigste Zitting pp. 446 - 447; summary in Doc. A/C.6/34/SR.13 p. 9
183. Vierendertigste Zitting van de Algemene Vergadering der Verenigde Naties [Thirty-fourth Session of the UN General Assembly), Publication of the Ministry of Foreign Affairs vol. 124 part II (1980) p. 483; also in Jaarboek van het Departement van Buitenlandse Zaken [Yearbook of the Ministry of Foreign Affairs] 1979 - 1980, Annex 29, p. 74B; Stc. No. 6 of 9 January 1980 p. 1
184. Cf., 11 NYIL (1980) p. 234.
185. Act of 5 July 1962, Stb. 1962 No. 295
186. Bijl. Hand. II 1979/80 - 15800 V No. 19 pp. 4 - 5
187. See n. 10 supra
188. See, 11 NYIL (1980) p. 234
189. Statement of 13 November 1979, Bijl. Hand. I 1979/80 - 14006 No. 18 p. 6
190. See, 11 NYIL (1980) p. 234
191. Cf., p. 241 supra
192. Cf., p. 241 supra
193. Statement of the Prime Minister in the Second Chamber, 26 June 1980, pp. 5805 - 5806
194. Cf., 11 NYIL (1980) p. 235
195. Statement of 5 February 1980, Bijl. Hand. II 1979/80 - 15467 (R 1114) No. 7 pp. 9 - 10
196. Statement of 2 September 1980, Hand. II 1979/80 pp. 6015, 6016, 6032
197. Cf., 11 NYIL (1980) p. 238
198. Bijl. Hand. II 1979/80 - 15441 No. 22 pp. 1 - 2
199. Statements of 20 December 1979, Bijl. Hand. II 1979/80 - 15800 V No. 72 pp. 3 - 4, 4 - 5
200. Statement of 1 November 1979, Vierendertigste Zitting van de Algemene Vergadering der Verenigde Naties [Thirty-fourth Session of the UN General Assembly], Publication of the Ministry of Foreign Affairs vol. 124 part II (1980) p. 113
201. See, Doc. CD/31 and CD/32 of 9 July 1979
202. Art. I reads: “Each State Party to the Treaty undertakes not to develop, produce, stockpile, otherwise acquire or possess, or use radiological weapons.”
Art. II reads: “For the purpose of the Treaty, the term ‘radiological weapon’ means:
1. Any device, including any weapon oi equipment, other than a nuclear explosive device, specifically designed to employ radioactive material by disseminating it to cause destruction, damage or injury by means of the radiation produced by the decay of such material.
2. Any radioactive material, other than that produced by a nuclear explosive device, specifically designed for employment, by its dissemination, to cause destruction, damage or injury by means of the radiation produced by the decay of such material.”
Art. III reads: “Each State Party to the Treaty also undertakes not to employ deliberately by its dissemination, any radioactive material not defined as a radiological weapon in Paragraph II, subparagraph 2, and not produced by a nuclear explosive device, to cause destruction, damage or injury by means of the radiation produced by the decay of such material.”
203. Convention on the prohibition of military or any other hostile use of environmental modification techniques, 18 May 1977, Trb. 1977 No. 141.
204. Art. VIII reads: “1. The States Parties to the Treaty undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Treaty. Consultation and co-operation pursuant to this Paragraph may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter. These international procedures may include the services of appropriate international organizations, as well as of a Consultative Committee of Experts as provided for in Subparagraph 2 of this Paragraph.
2. For the purposes set forth in Subparagraph 1 of this Paragraph, the Depositary shall, within one month of the receipt of a request from any State Party, convene a Consultative Committee of Experts. Any State Party may appoint an expert to this Committee, whose functions and rules of procedure are set out in the Annex, which constitutes an integral part of the Treaty. The Committee shal transmit to the Depositary a summary of its findings of fact, incorporating all views and information presented to the Committee during its proceedings. The Depositary shall distribute the summary to all States Parties.
3. Any State Party to the Treaty which has reasons to believe that any other State Party is acting in breach of obligations deriving from the provisions of the Treaty may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all relevant information as well as all possible evidence supporting its validity.
4. Each State Party to the Treaty undertakes to co-operate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Treaty of the results of the investigation.
5. Each State Party to the Treaty undertakes to provide or support assistance, in accordance with the provisions of the Charter of the United Nations, to any Party to the Treaty which so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of violation of the Treaty.”
205. Art. X reads: “1. The Treaty shall be of unlimited duration.
2. Each State Party to the Treaty shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of the Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other States Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.”
206. Art. XI reads: “ 1. Ten years after entry into force of the Treaty, or earlier if requested by a majority of States Parties, a conference of States Parties should be convened to review the operation of the Treaty, with a view to assuring that the purposes of the preamble and the provisions of the Treaty are being realized. Such review should take into account any new scientific and technological developments relevant to the Treaty.”
207. Doc, CD/PV. 76 pp. 6 - 8, 9
208. Treaty of 1 July 1968, Trb. 1968 No. 126
209. Treaty of 14 February 1967, Trb. 1968 No. 145; cf., 2 NYIL (1971) p. 188
210. Reply of 5 June 1980, Doc. A/35/145 pp. 20 - 21
211. Cf., 4 NYIL (1973) p. 348; 5 NYIL (1974) p. 251; 6 NYIL (1975) p. 306; 11 NYIL (1980) p. 244
212. Doc. CD/PV.94 pp. 13 - 16; also in Stc. No. 144 of 29 July 1980 p. 3
213. Trb. 1951 Nos. 72 - 75
214. Charter of 8 August 1945, Stc. 1946 No. 18
215. Bijl. Hand. II 1979/80 - 15800 X No. 39 pp. 2, 3
216. Doc. A/C.6/34/L.17
217. Cf. infra
218. Vierendertigste Zitting van de Algemene Vergadering der Verenigde Naties [Thirty-fourth Session of the UN General Assembly], Publication of the Ministry of Foreign Affairs vol. 124 part. II (1980) pp. 464 - 465; summary in Doc. A/C.6/34/SR.61 p. 7
219. Statement of 29 August 1980, Stc. No. 169 of 2 September 1980 p. 5
220. Agreement of 12 September 1979, Trb. 1980 No. 17
221. Memorandum of 13 August 1980, Bijl. Hand. II 1979/80 - 16294 No. 1 p. 2
222. Statement of 16 January 1980, Bijl. Hand. II 1979/80 - 15800 XII No. 19 p. 85
223. Cf., 10 NYIL (1979) p. 405
224. Trb. 1979 No. 26; 1953 No. 109
225. Decision of 8 November 1968, Nj 1969 No. 10
226. Bijl. Hand. II 1953/54 - 3520 No. 3 p. 4
227. Statement of 4 December 1979, Bijl. Hand. II 1979/80 - 15948 No. 3 p. 5
228. Reply of 12 July 1979, Doc. A/34/416 pp. 29 - 30
229. Cf., 9 NYIL (1978) p. 247; 11 NYIL (1980) p. 257
230. Memorandum of 19 June 1975, Bijl. Hand. II 1974/75 - 13461 No. 1 p. 64
231. Statement of 4 March 1980, Bijl. Hand. II 1979/80 - 15571 No. 5 p. 17