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The constitutional duty to promote the development of the international legal order: the significance and meaning of Article 90 of the Netherlands constitution*

Published online by Cambridge University Press:  07 July 2009

Leonard F.M. Besselink
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Abstract

The government has the duty to promote the development of the international legal order, says Article 90 of the Netherlands Constitution. Although somewhat similar provisions occur in other constitutions, only the draft Constitution of the European Union contains an identical provision. This essay analyses the precise meaning of the constitutional duty in the Netherlands. It traces the history of the relevant provision and sketches how it developed from a provision on the use of peaceful means for settling international disputes into a general provision on the duty to promote the development of the international legal order. The meaning and content of the duty contained in this provision is distinguished by analysing the overlapping twin notions of abidance by versus promotion of international law, of international society and the international legal order, of serving international and the national interest, and by discussing the attributive versus the regulative nature of Article 90 of the Constitution. The case-law on this provision is discussed separately, and describes the development from reviewing the compatibility of state action with public international law to considering it a programmatic provision with limited justiciability.

In its dynamic function, focussing on promoting the development of an international legal order, the provision has a critical, exhortatory function; it does not regard actual facts, but is about desirable futures. It should foster discourse about the structural weaknesses in the present political and legal international order and should highlight the discussion on whether certain policy choices actually promote the latter's development.

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Netherlands Yearbook of International Law , Volume 34 , December 2003 , pp. 89 - 138
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Copyright © T.M.C. Asser Press 2003

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References

1. Already in 1848 two programmatic provisions were introduced, with regard to education and the care for the poor, both of which were declared to be the constant concern of the government.

2. ‘De regering bevordert de ontwikkeling van de internationale rechtsorde.’ Previously, Article 90 was translated as: ‘The government shall promote the development of the international rule of law.’ This was a mis-translation, which, however, still circulates. A translation of the Constitution by the Ministry of Foreign Affairs can be found on <www.ministerdegraaf.nl/uk/constitution_and/publications/the_constitution_of>.

3. Other countries with constitutional provisions similar to Art. 90 are the following. The French preamble states: ‘La République française, fidèle à ses traditions, se conforme aux règies du droit public international. Elle n'entreprendra aucune guerre dans des vues de conquête et n'emploiera jamais ses forces contre la liberié d'aucun peuple’; The German preamble states: ‘… moved by the purpose to serve world peace as an equal partner in a unified Europe …’, Art. 26: ‘(1) Activities tending and undertaken with the intent to disturb peaceful relations between nations, especially to prepare for aggressive war, are unconstitutional. They shall be made a punishable offence’; The Greek constitution, in Art. 2 (2): ‘Greece, following the generally accepted rules of international law, seeks consolidation of peace and justice and fostering of friendly relations among Peoples and States’; The Irish constitution, in Art. 29: ‘1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality. 2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination. 3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States’; The Italian Constitution, in Art. 11: ‘Italy shall repudiate war as an instrument of offence against the liberty of other peoples and as a means for settling international disputes; it shall agree, on conditions of equality with other states, to such limitations of sovereignty as may be necessary to allow for a legal system that will ensure peace and justice between nations; it shall promote and encourage international organizations having such ends in view’; The Portuguese Constitution, in Art. 7: ‘1. In international relations, Portugal shall be governed by the principles of national independence, respect for human rights, the rights of peoples, equality between States, the peaceful settlement of international disputes, non-interference in the internal affairs of other states and co-operation with all other peoples for the emancipation and progress of mankind. 2. Portugal shall advocate the abolition of imperialism, colonialism and any other form of aggression, domination and exploitation in relations among peoples, as well as the achievement of simultaneous and controlled general disarmament, the dissolution of political-military blocs and the setting up of a collective security system, with a view to the creation of an international order capable of safeguarding peace and justice in relations among peoples. 3. Portugal recognises the right of peoples to self-determination, independence and development, as well as the right to rebel against all forms of oppression’; The Spanish preamble states: ‘The Spanish Nation … in the exercise of its sovereignty proclaims its will to: (…) collaborate in the strengthening of peaceful relations and effective cooperation among all the peoples of the earth’; The Brazilian preamble states: ‘We, … committed, in the internal and international spheres, to the peaceful solution of disputes, promulgate … this Constitution’; The Japanese preamble states: ‘We, the Japanese people, … determined that we should secure for ourselves and our posterity the fruits of peaceful cooperation with all nations … We desire to occupy an honoured place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression, and intolerance for all time from the earth. We recognise that all peoples of the world have the right to live in peace, free from fear and want’, Art. 9(1): ‘Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes’; The Swiss Constitution, in Art. 2(4): ‘[The Swiss Federation] strives to safeguard the long-term preservation of natural resources and to promote a just and peaceful international order’; The Indian Constitution, in Art. 51: ‘The State shall endeavour to – (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and (d) encourage settlement of international disputes by arbitration.’

4. Constitution of Surinam of 1987, Art. 7(2). ‘The Republic of Suriname promotes the development of the international legal order and supports the peaceful settlement of international disputes.’

5. The text of the provision as proposed by the Convention on the Future of Europe is followed. In the intergovernmental conference, it has now been proposed to refer to the Articles of Part I of the Constitution in this case as Article I-3, to which no further amendments have been proposed.

6. The Dutch Convention member Van der Linden, supported by four other members, had proposed to insert as a reference ‘contributes to building international justice’. But we owe the wording of the text to an amendment by the very prominent Convention member, Andrew Duff, who proposed the words ‘and the development of international law’; see CONV 574/1/03 REV 1, of 26 February 2003.

7. Some of the other proposed changes concerned a limitation of the succession to the throne (for nationalist democratic reasons), removing obstacles for greater autonomy of the colonies, introducing the possibility of interim elections at the dissolution of the Senate, and the introduction of the referendum (these last two failed to acquire sufficient support in Parliament).

8. See van Vollenhoven's, preface to Hugonis Grotii De jure belli acpads libri tres, in quibus jus naturae et gentium, item juris publici praecipua explicantur cum annotatis auctoris, Edidit Molhuysen, P.C., praefatus est C. van Vollenhoven (Leiden, Lugduni Batavorum 1919) (BG 615)Google Scholar; also many of his works collected in Mr. C. van Vollenhoven's Verspreide Geschriften I, van Asbeck, F.M., ed. (Haarlem, Tjeenk Willink/The Hague, Nijhoff 1934).Google Scholar

9. See already Huart, F.J.A., Grondwetsherziening 1917 en 1922 (Arnhem, 1925) pp. 69–72Google Scholar, who is, after careful analysis, generally negative as to the question whether the constitutional amendments have programmatic meaning for the democratization of foreign policy through participation of the States General. On the issue of approval of treaties, he was rightly negative. The impracticality of approving every and all possible type of international agreement led to the introduction of a distinction between treaties and other agreements, which made it possible for the government to circumvent parliamentary approval by giving the international instrument another name than ‘treaty’.

10. Verslag van de Staatscommissie ingesteld bij Koninklijk Besluit van 20 December 1918, No. 78, aan welke is opgedragen de voorbereiding van eene herziening van de Grondwet [Report of the State Committee established by Royal Decree of 20 December 1918, No. 78, which has been commissioned to prepare a revision of the Constitution] (The Hague, 1920) p. 4.Google Scholar

11. J.H.A. Schaper, 1868–1934, member of the Social Democrat Labour Party SDAP and at the time member of the House of Representatives.

12. Minority report by Schaper, p. 3.

13. Art. 58; see Bijl. Hand. 451, No. 3, p. 2.

14. See Bijl. Hand. 90 No. 7, V, para. 21; and Hand. II, 1921–1922, p. 429.

15. Hand. II, 1921–1922, p. 441.

16. Commissie nopens de samenwerking tussen regering en Staten-Generaal inzake het buitenlands beleid, established by Ministerial Decree in 1950, chaired by W.J.M. van Eysinga, emeritus professor of public international law in Leiden.

17. Eindrapport van de Commissie nopens de samenwerking tussen regering en Staten-Generaal inzake het buitenlands beleid, 9 juli 1951 (The Hague 1951) pp. 13–14.Google Scholar

18. Eindrapport van de Staatscommissie tot herziening van de Grondwet ingesteld bij Koninklijk Besluit van 17 april 1950, No. 25, p. 154.Google Scholar

19. Bijl. Hand. 2374, No. 3, p. 2.

20. Hand. I, Memorandum of reply to the relevant parliamentary committee, 2374, No. 10, p. 28.

21. Paras. 5.4 and 5.4.1.

22. The constitutional term ‘government’, incidentally, in the Netherlands still comprises both ministers and the King as head of state − unlike this term in most other countries; see Art. 42(1) of the Constitution: ‘The Government shall comprise the King and the Ministers.’

23. V.H. Rutgers, 1877–1945, member of the Anti-Revolutionary Party, member of the House of Representatives 1912–1925, of which since 1919 leader of his parliamentary group, minister of Education, Culture and Sciences 1925–1926, professor of Roman law and criminal law at the Free University of Amsterdam 1928–1945, active as prominent member of the resistance during the German occupation, died in German captivity in 1945.

24. Rutgers, in Hand. II, 11 November 1921, p. 427.

25. Bijl. Hand. 451 No. 17, p. 7 and 17.

26. E.M.J.A. (Maan) Sassen, 1911–1995, was a member of the Catholic People's Party, KVP; entered the House of Representatives as a spokesman on legal matters in 1946, was Minister for Colonial Affairs (1946 to 1948), member of the Senate (1952–1958), member of the Central Appeals Court of the Public Service and for Social Security Matters [Centrale Raad van Beroep] (court of highest instance for civil service and social security matters) (1950 to 1958), member of the European Parliament and its predecessor the Common Assembly of the ECSC from 1952 untill 1958 (from 1953 till 1958 as leader of the Christian Democrat group), Member of the Euratom Commission (1958–1967) and of the EEC Commission, commissioner for competition (1967–1971), and Permanent Representative at the EEC (1971–1977).

27. Hand. I, 1952–1953, p. 469.

28. Only one provision which lives up to the old criteria of constitutional aesthetics has survived the iconoclastic onslaughts of legalistic constitutionalism in the permanent process of constitutional amendment. That is Art. 42(2): ‘The king is inviolable, the ministers are responsible.’ This is brief and obscure, particularly as the only provision on the subject in the Constitution, it is intended to cover nearly the whole of the doctrine of ministerial responsibility and accountability. Translators have problems with obscure provisions. The semi-official translation of the Constitution into English has turned the original of Art. 42(2) into a shallow lesson in constitutional law – and not even a very good one for that matter: ‘The Ministers, and not the King, shall be responsible for acts of government.’ This is infinitely more boring than the original and aesthetically debases it.

29. Art. 120 Constitution: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’

30. This is argued most forcefully by Huart, op. cit. n. 9, at pp. 48–49.

31. Bijl. Hand. 2374, No. 3, p. 3; the Van Eysinga Commission also spoke of a ‘more comprehensive obligation’, Eindrapport van de Commissie nopens de samenwerking tussen regering en Staten-Generaal inzake het buitenlands beleid, 9 juli 1951, at p. 14.Google Scholar

32. Ibid.

33. Duynstee, F.J.F.M., Grondwetsherziening 1953: de nieuwe bepalingen omtrent de buitenlandse betrekkingen in de Grondwet (Deventer, Kluwer 1954) sub voce Artikel 58, at p. 49.Google Scholar

34. Bijl. Hand. 2374, No. 3, p. 3 (Eindrapport van de Commissie nopens de samenwerking tussen regering en Staten-Generaal inzake het buitenlands beleid, 9 juli 1951) at p. 14.

35. Bijl. Hand. I 1951–52, Memorandum of reply, 2374, p. 7.

36. This is the meaning which the government had primarily attached to the provision of 1953 in the Explanatory Memorandum to the proposal to abolish that provision; for the references to that meaning in the subsequent debate, see the parliamentary documents in Naar een nieuwe Grondwet, Vol. Vb, at pp. 50, 63 and 140.

37. See the recurrent summing up in Naar een nieuwe Grondwet, supra n. 36, at pp. 48–50, 63, 113, 127, 140, 172 and 176.

38. The text produced by the Convention on the Future of Europe is used. Although there are no such proposals, it is not certain whether eventual changes will be made during the intergovernmental conference; cf., CIG 60/03, ADD 1, 9 December 2003.

39. This question arises particularly as there are no explicit limitations on the duty to promote the development of the international legal order, such as those contained in the Draft Constitution of the EU, which not only in Art. III-193 explicitly enunciates the principle ‘to preserve peace, prevent conflicts and strengthen international security, in conformity with the principles of the United Nations Charter’, but also in Art. 3 speaks of the objective of ‘strict observance and development of international law, including respect for the principles of the United Nations Charter’, presumably intending that the development of international law is to be pursued in accordance with the principles of the Charter. This is a substantive limitation on the means of promoting that development, which is absent from the Dutch Constitution. One should recall that in the 1920s the provision in the Netherlands Constitution involved not making use of rights (notably the right to resort to armed force). But if one assumes (in my opinion incorrectly) that the NATO and WEU treaties involve an automatic duty to assist the attacked with the use of armed force (as has been suggested in governmental circles in the aftermath of 11 September), the question arises whether Art. 90 can be used as a basis for refraining from fulfilling this treaty obligation.

40. For the Cruise Missiles cases, see President District Court The Hague [Rechtbank ‘s-Gravenhage], 20 May 1986, AB 1986, 445, 18 NYIL (1987) p. 417; Pres. District Court The Hague, 5 November 1985, AB 1986, 41; Supreme Court 10 November 1989, NJ 1991, 248; 22 NYIL (1991) p. 453 and 106 ILR p. 400; see particularly also Kuyper, P.J. and Wellens, K.C., Cruise Missiles in Europe, 18 NYIL (1987) p. 169.Google Scholar

41. Supreme Court 21 December 2001, No. C99/355HR, NJ 2002, 217, 34 NYIL (2003) p. 383 <www.rechtspraak.nl> LJN No. ZC 3693 (Nuclear Weapons), plaintiff stressed throughout the proceedings that Art. 90 of the Constitution should be applied.

42. President of the District Court The Hague, 26 October 2001, KG (2001) No. 287 <www.rechtspraak.nl> LJN No. AD 4855 (Afghanistan), Vereniging van Juristen voor Vrede, De Groenen, Vrouwen voor Vrede, Haags Vredesplatform, Nieuwe Communistische Partij against the State of the Netherlands, where plaintiffs claimed that cooperation or support to the military actions by the US and its allies, or the use of military force by the Netherlands was an infringement of peremptory principles and norms of public international law and ‘as a consequence an infringement of Article 90 of the Constitution and therefore unlawful’.

43. Culminating in a judgment of the Supreme Court, 29 November 2002, C01/027 HR, NJ 2002, 35 <www.rechtspraak.nl> LJN No. AE 5164 (NATO bombardments of Yugoslavia).

44. See numerous interventions in the press; also District Court The Hague 31 March 2003, KG 03/331, <www.rechtspraak.nl> LJN No. AF 6540 (Iraq), para. 3 in which plaintiffs, inhabitants of Iraq, complain that the State of the Netherlands, by giving political, diplomatic and military support to military operations in Iraq, is co-responsible for an infringement of the prohibition of the use of force and aggression, and hence infringes Article 90 of the Constitution.

45. van Elst, R., NJB (2001) at p. 260Google Scholar: ‘Finally a provision of national law: Article 90 […] The international legal order (i) prescribes that those who are responsible for torture and crimes against humanity are to be prosecuted, (ii) condemns regimes whose policy fosters such crimes, (iii) ostricises also those who are politically responsible. The Netherlands does not promote the international legal order by giving hospitality to persons who may possibly have criminal but certainly have political responsibility for the most serious offences against human rights’ [translation LB].

46. Holtmaat, R., NJB (2001) p. 1800Google Scholar: ‘The arguments which the government gives [for not complying with the views of the CEDAW committee] for not undertaking anything against the SGP [Politically Reformed Party] are identical to those in its reports and oral views to the CEDAW committee. That the Committee nevertheless arrives at the opposite conclusion, does not seem to be reason for reconsidering its own views. Thus, in my opinion, the government infringes Art. 90 of the Constitution. This provision says that the government of the Netherlands exert itself to promote the international legal order. That means that it has to cooperate in concluding international treaties and that it has to apply them to the best of their ability’ [translation LB].

47. Willems, J.C.M., NJB (2001) at p. 2091Google Scholar: ‘A plea for the ‘corrective smack’ by a member of the House of Representatives illustrates how easily – almost light-heartedly – in our country, even in the highest circles, one thinks of the rights of the child. These are law of the land also in the Netherlands, pursuant to Art. 93 of the Constitution. Art. 90 adds to this with the task for the government to promote the international legal order, and therefore also the international rights of the child’ [translation LB].

48. See also Art. 100(1): ‘The Government shall inform the States General in advance if the armed forces are to be deployed or made available to maintain or promote the international legal order. This shall include providing information concerning the deployment of or making available the armed forces for humanitarian aid in cases of armed conflict.’ This last sentence seems to be a specification of a legitimate interest of promoting the international legal order.

49. See also n. 79.

50. Sanctiewet 1977, Art. 2.

51. Hence, when the jungle of advisory bodies and committees surrounding the government was tidied up very drastically, it was decided by way of exception that a separate Advisory Committee on Issues of Public International Law, Commissie van Advies voor Volkenrechtelijke Vraagstukken, was to be retained next to the Advisory Council on International Affairs, Adviesraad Internationale Vraagstukken – which was inspired by Art. 90; see Bijl. Hand. II 25460, 3, pp. 1–2.

52. Voorhoeve, J.J.C., Peace, Profit and Principles: a Study of Dutch Foreign Policy (The Hague, Nijhoff 1979)Google Scholar; de Graaff, B. and Hellema, D., De Nederlandse buitenlandse politiek in de 20e eeuw (Amsterdam, Boom 2003)Google Scholar; Hellema, D., Neutraliteit en Vrijhandel: de geschiedenis van de Nederlandse buitenlandse betrekkingen (Utrecht, Spectrum 2001).Google Scholar

53. See the Jaarverslagen 1954–1955 and 1955–1956 and Jaarboekje of the Vereniging voor Internationale Rechtsorde, the Vereniging voor de Verenigde Naties respectively for an impression of the number and spread of such associations.

54. Eindrapport, pp. 3–12, et seq.

55. See Report of the ILC from its 55th session (A/58/10), pp. 270–271 (para. 419). See also Koskenniemi, M. and Leino, P., ‘Fragmentation of International Law? Postmodern Anxieties’, 15 Leiden JIL (2002) pp. 553–579.CrossRefGoogle Scholar

56. The position of public international law is strongly dependent on the development of the international relations (international society) in which it functions, as we have just illustrated by contrasting the views which could be expressed in the course of the constitutional amendment of 1953 with those now prevailing in a politico-institutionally more fragmented international context. Undoubtedly that can be explained by the fact that legal and political discourse in public law cannot really be considered to be entirely separate and autonomous; legal discourse is itself a form of political discourse.

57. On the role of international law in the Netherlands legal order, see Lammers, J.G. en Brinkhorst, L.J., ‘The impact of international law, including European Community law, on the Netherlands legal order’, in Fokkema, D.C., Chorus, J.C.M. and Hondius, E.H., eds., Introduction to Dutch Law for Foreign Lawyers, (Deventer, Kluwer 1978) pp. 561–584Google Scholar; furthermore Erades, L., ‘International law and the Netherlands legal order’, International Law in the Netherlands, Vol. 3, pp. 376–434Google Scholar; more extensively the part on the Netherlands in Erades, L. en Gould, W.L., The Relation between International Law and Municipal Law in the Netherlands and in the United States (Leiden, Sijthoff/New York, Oceana 1961)Google Scholar and most extensively Erades, L., in Fitzmaurice-Lachs, M. and Flinterman, C., eds., Interactions between International and Municipal Law; a comparative case law study (The Hague, TMC Asser Instituut 1993) 1037 pp.Google Scholar A study of the constitutional history is Brouwer, J.G., Verdragsrecht in Nederland; een studie naar de verhouding tussen internationaal en nationaal recht in een historisch perspectief (Zwolle, W.E.J. Tjeenk Willink 1992) 360 ppGoogle Scholar; he argues that in 1953 the Constitution changed from a dualist to a monist perspective, and in 1956 back again to a dualist approach, meaning with the terms the determination of the status of international law on the basis of public international law (‘monism’) or the determination of this status by national law (‘dualism’).

58. It can also happen, of course, that the interest of the international legal order or of international relations with foreign powers can be reduced to a balancing of national foreign policy interests with other national interests, for instance economic interests; this happens for instance in cases where on the basis of the Imports and Exports Act export restrictions are imposed, see e.g., Trade and Industry Appeals Tribunal [College van beroep voor het bedrijfsleven] 31 January 2001, No. AWB 99/495 and 99/496, SP Aerospace and Vehicle Systems v. State Secretary of Economic Affairs, to be found on <www.rechtspraak.nl> under LJN-No. AA9865; see earlier, Trade and Industry Appeals Tribunal 21 October 1986; Trade and Industry Appeals Tribunal 17 June 1988, AB 1989, 503, para. 6.6; 21 NYIL (1990) p. 460; 101 ILR p. 449

59. Thus the restriction of the primacy of international law to self-executing provisions of treaties and of decisions of international organisations, means that in case of conflict, provisions of Acts of Parliaments have priority over rules of customary international law and of non-self-executing provisions of written law; see Supreme Court 6 March 1959, NJ 1962, 2 with ft.; Veegens, D.J. (Nyugat) 10 NILR (1963) p. 82Google Scholar, and for the possible implications of later case-law see Besselink, L.F.M., ‘Van stoomschip tot kruisvluchtwapen – rechterlijke toetsing aan het volkenrecht binnen de Nederlandse rechtsorde’, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1990) pp. 266–269 and 384–386.Google Scholar

60. See n. 48.

61. See Bijl. Hand. II 23900 XV, No. 44, pp. 7–8.

62. Finnish Constitution, Art. 94(3): ‘An international obligation shall not endanger the democratic foundations of the Constitution’ (note that in Finland it is permitted to pass legislation which diverges from the Constitution, which presumably also means that treaties can so diverge); Spanish Constitution Art. 95(1): ‘The conclusion of an international treaty which contains stipulations contrary to the Constitution shall require a prior constitutional revision’; Russia, Art. 79 of the Constitution: ‘The Russian Federation may participate in inter-state associations and delegate some of its powers to them in accordance with international agreements if this does not restrict human or civil rights and liberties or contravene the fundamentals of the constitutional system of the Russian Federation.’

63. Naar een nieuwe Grondwet, supra n. 36, at p. 69. Cf., for instance the Danish Constitution, Art. 20(1): ‘Powers vested in the authorities of the Realm under this Constitution Act may, to such extent as shall be provided by Statute, be delegated to international authorities set up by mutual agreement with other states for the promotion of the international legal order and co-operation between nations’; Greece, Constitution Art. 28: ‘(2) It shall be possible under the Constitution to recognise the competence of bodies of international organisations by virtue of treaties or agreements with a view to serving important national interests and promoting co-operation with other countries. A majority of three fifth of the total number of deputies shall be required for the passing of laws ratifying such treaties or agreements. (3) Greece shall accept restrictions on the exercise of national sovereignty by laws passed by the absolute majority of the total number of deputies, if this be dictated by important national interests, if human rights and the foundations of the democratic regime be not violated, and if this be effected on the basis of the principle of equality and on condition of reciprocity.’

64. See Art. 110 of the Constitution: ‘In the exercise of their duties government bodies shall observe openness and transparency [Dutch: openbaarheid] in accordance with rules to be prescribed by Act of Parliament.’ This provision is translated into a right of public access to information in the Wet openbaarheid van bestuur [Act on Public Administration].

65. Art. 10(d) Wet Openbaarheid van Bestuur.

66. This is in quite stark contrast to the policy pursued by successive Dutch governments in the particular context of the principle of transparency in the EU.

67. This was subsequent to the passing of a resolution, the Motie-Van Leeuwen; see Hand. II 1916–1917, p. 2503.

68. It still had a basis in the Charter for the Kingdom [Statuut voor het Koninkrijk], which regulates the relations between the Netherlands and its autonomous overseas territories in the Carribean, and which states that foreign affairs is a competence of the whole realm, over which the King (i.e., constitutionally: the government) exercises executive power; see Art. 3(1) sub b in connection with Arts. 2(1) and 4(1) of the Charter.

69. The origin of this change is due to a remark of a member of the Senate, see Naar een nieuwe Grondwet, supra n. 36, at p. 173, who derived from a number of remarks made in the House of Representatives (which actually concerned the old issue whether the provision would give government reason to restrict the normal rights of parliament) together with the wording of the provision and the elimination of the provision on the supreme authority of the government over foreign affairs, that Article 90 specifically attributes the power over foreign affairs to the government. The government in response took over this reading, ibid., at p. 176.

70. In fact, one notes that in post-1983 practice that governments have used this kind of reading to oppose parliamentary influence. Thus, there has been a tremendous ‘to-ing and fro-ing’ about the question whether the government should inform parliament about the contents of a negotiated treaty before the treaty has actually been signed. Only after much hesitation, was in 1991 the House of Representatives given a promise that it will be informed of the result of negotiations on ‘politically important’ treaties before the government binds itself to them by signing the treaty. Even such an immensely important treaty as that of Maastricht establishing the European Union – negotiated under Dutch chairmanship and widely discussed and at that stage even published unofficially – the government refused to lay before the House of Representatives after the negotiations had finished but the text had not yet been signed; Bijl. Hand. II 1990–1991, 21 214, No. 8, pp. 2–3; on the incidents surrounding the Maastricht Treaty see Hand. II 1991–1992, pp. 1755–1756; there was, curiously, a motion passed by the House on 28 November 1991, which rejects certain provisions ‘in the present text of the draft-treaty’ although formally the House did not have that text at its disposition. However, the House rejected a resolution to produce the text of the Maastricht Treaty to the House in conformity with the promise of 11 January 1991, before the treaty was signed, see Bijl. Hand. 1991–1992, 22 300 V, No. 54 (motie-Van Middelkoop), Hand. II 1991–1992, p. 2035, left column.

71. See on this amendment van Schooten, H. and Werner, W.G., ‘Democratic Control of the Use of Force under the Dutch Constitution’, 10 Tilburg For. LR (2002) pp. 43–62CrossRefGoogle Scholar; also Besselink, L.F.M., ‘The Constitution and the Armed Forces’, 7 European Public Law (2001) pp. 365–374CrossRefGoogle Scholar, and by the same author, ‘Military Law in the Netherlands’, in Nolte, G., ed., European Military Law Systems (Berlin, De Gruyter Rechtswissenschaften 2003) pp. 547–646.CrossRefGoogle Scholar

72. Supreme Court 8 February 1980, NJ 1981, 334, 12 NYIL (1981) p. 353.

73. E.g., the deployment of military units in the second Gulf crisis in January 1991, Bijl. Hand. 1990–1991, 21664, 25, p. 4: ‘The legal basis for the despatch was and is the Constitution, in particular Article 90 (promotion of international legal order) and Article 98 (defence of the interests of the State).’

74. Bijl. Hand. II 1990–1991, 21 664, No. 25, p. 11.

75. Already in 1979 the President of the District Court at The Hague had held that under the interests of the State in the sense of the provision on the armed forces, should be counted the promotion of the development of the international legal order in the sense of Article 58 (2) of the old Constitution; see President District Court The Hague 22 February 1979, AB 1979, 162; 11 NYIL (1980) p. 338.

76. Bijl. Hand. II 1995–1996, 23 591, No. 6, p. 11, this author's translation.

77. Central Appeals Court 7 September 2000 TAR (2000); see also Besselink, L.F.M., De Constitutie en uitzending van militairen voor vredeshandhaving, TAR (2001) pp. 295–306Google Scholar; with a critical response by Coolen, G. and reply TAR (2001) at pp. 533–535.Google Scholar

78. Close inspection of the explanatory memorandum indicates that it can hardly support the finding of the Central Appeals Court. It merely states that ‘this task of the armed forces [the maintenance and development of the international legal order] is mentioned separately, because it is true that it can be considered a facet of the interests of the Kingdom, it does not merely aim to protect these interests […] The proposed indication of the possibilities to deploy the armed forces is in accordance with present-day practice’ (Bijl. Hand. II 1996–1997, 25 367 (R 1593), No. 3, pp. 3–4, author's translation) – which of course begs the question whether there was a constitutional basis for that practice; the House of Representatives, on the only occasion on which it was discussed dispassionately, thought that was not the case.

79. The government had great difficulty of explaining the deployment of the armed forces for promoting (as opposed to maintaining) the international legal order; see the tortuous and contorted explanation by the minister of Defence in response to the pertinent criticisms of member of parliament Middelkoop (Hand. II 1997–1998, 13 January 1998, 40, pp. 3244–3245 at ibid., 3268–3269.

80. District Court The Hague 9 November 1990, para. 6.3.8, quoted in NJ 1991, 696: ‘Such division of competence [between the government and the judiciary] is also to be based on Article 90 of the Constitution, in which promoting the international legal order is attributed to the government. Should the government fulfil this task in an unlawful manner with regard to the person whose extradition has been requested, this person can subsequently seize the civil court of the matter, which can impose – should the case arise – an injunction on the government to negotiate with the state requesting extradition with a view to obtaining guarantees that it will act in accordance with the norms of Art. 3 ECHR or similar treaty provisions to which the Netherlands is a party and which provides a right for the person whose extradition has been requested.’ [Emphasis added]

81. District Court The Hague 28 October 1987, M&R (1988) p. 40, Eems-Dollard; see also the same court 21 May 1984, AB (1985) p. 12; 16 NYIL (1985) p. 506; 96 ILR p. 338.

82. Administrative Law Division of the Council of State, 18 February 1999, AB (1999) p. 143.

83. Administrative Law Division of the Council of State, 10 April 1995, AB (1995) p. 498, 27 NYIL (1996) p. 354, Long Lin.

84. Supreme Court 7 February 1986, NJ (1986) 477; 18 NYIL (1987) p. 402; ILR (1990) p. 436, Attican Unity.

85. The power of the State to intervene to salvage a shipwreck as based on its sovereignty as dealt with in Attican Unity can be construed as a form of dominium eminens. It then concerned a civil court case. Under Dutch law it is not decisive whether it is one state organ rather than another which has acted on a specific legal basis, but it suffices that it concerns an act which must be imputed to the legal person under civil law, which in the Netherlands is never a state organ but the state itself; moreover, in this case the Supreme Court decided that there was no legal basis for competence in any national legislative norm, so not in Art. 90 of the Constitution either. Some commentators have argued that also in Long lin the power to refuse entrance to the territorial waters is to be understood as based on state ownership. This is then transformed into a public law basis with a view to construing the admissibility of the case, rather than as a true attribution of power to a particular state organ. Thus, e.g., der Veen, G.A. van, annotation in AB (1995) p. 498.Google Scholar

86. Flinterman, C., ‘Het opperbestuur der buitenlandse betrekkingen’, NJ (1978) p. 802Google Scholar

87. Trade and Industry Appeals Tribunal, 28 March 1984, AB (1984) p. 499; 16 NYIL (1985) p. 528; ILR p. 419.

88. In the whole constitutional history of Art. 90 and its predecessors, there is no explicit or implicit reference to be found to Article 1 of the UN Charter, even if under a certain understanding these may converge in the same direction (which is the case also with very many other international instruments).

89. See Besselink, L.F.M., ‘De publieke taak en sociale grondrechten: de betrekkelijke waarde van sociale grondrechten’, in Sap, J.W., Vermeulen, B.P. and Zoethout, C.M., eds., De publieke taak – Staatsrechtconferenties, Vol. 7 (Deventer, Kluwer 2003) pp. 95–111.Google Scholar

90. Vereniging van Juristen voor Vrede [Association of Laywers for Peace], De Groenen [The Greens], Vrouwen voor Vrede [Women for Peace], Haags Vredesplatform [The Hague Peace Platform] and the Nieuwe Communistische Partij [New Communist Party].

91. See supra n. 42. The judgment in final instance by the Supreme Court will be discussed below.

92. Implicitly, the Supreme Court has confirmed this, see Supreme Court 21 December 2001, see supra n. 41: plaintiffs claimed an interest protected under the Civil Code (Art. 6:162, the provision on unlawful acts, which is the basis for court injunctions prohibiting them), which is given by the fact that the acts complained of constitute an infringement of Art. 90 Constitution (Part IV, section 4 of the adduced grounds for cassation); the Supreme Court implicitly acknowledged that the plaintiffs had such an interest, without specifying whether Art. 90 was the most relevant, see para. 3.7.2 of the Judgement.

93. This is the legal person which has standing in civil cases under the Dutch Civil code; only when an individual official, for instance a minister, has obviously acted outside the scope of his function in a manner where his actions can no longer be considered as acts in function, will that official have standing.

94. District Court The Hague, 20 May 1986, see supra n. 40.

95. Sharply criticised from the perspective of the ‘political question’ doctrine, by Kuyper en Wellens, loc. cit. n. 40, at pp. 171–174.

96. Court of Appeal of The Hague, 30 December 1987, paragraph 5, quoted in NJ (1991) p. 248; 20 NYIL (1989) p. 364.

97. Supreme Court, 10 November 1989, para. 3.4, see supra n. 40.

98. Ibid., para. 3.9.

99. Supreme Court, 29 November 2002, C01/027HR, para. 3.5, see supra n 43.

100. Ibid., para. 3.3.

101. Supreme Court, 21 December 2001, No. C99/355HR, para. 3.3, sub C, see supra n. 41.

102. Court of Appeal of The Hague, 6 May 2002, not reported.

103. Supreme Court, 6 February 2004, C02/217HR, paragraph 3.4, <www.rechtspraak.nl>, LJN-number: AN8071.

104. Court of Appeal of The Hague, 31 March 2003, see supra n. 44.