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Netherlands judicial decisions involving questions of public international law, 1979–1980
Published online by Cambridge University Press: 07 July 2009
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1. In the decision of 29 December 1979 of the District Court of Rotterdam in Government of Iraq, State Corporation for Sea Transport v. The State of the Netherlands, the question of state immunity did not arise, since Iraq was the plaintiff (S&S (1980) No. 29. Briefly summarized in ELD (1981) p. 44).
2. Cf., for a different solution to a similar problem, District Court of Utrecht, 14 January 1969, in Brinkhoff v. Nederlandse Spoorwegen and Deutsche Bundesbahn, 1 NYIL (1970) p. 229, ETL (1969) p. 826. Discussed by Voskuil, C.C.A. in 19 NTIR (1972) p. 66Google Scholar and in WPNR (1972) p. 130.
3. Discussed by Flinterman, C. in De Act of State Doctrine (Amsterdam: Kluwer, 1981), pp. 127–128.Google Scholar
4. Cf., 9 NYIL (1978) pp. 194–5.
5. Cf., 9 NYIL (9) p. 1978.
6. After the first corvette had been transferred to Indonesia, the plaintiffs confined their claim to the two remaining corvettes.
7. Cf., Kuyper, P.J., “Recognition: Netherlands Theory and State Practice” in International Law in the Netherlands, Vol. I, (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1978), pp. 371–403Google Scholar, in particular p. 387 et seq.
8. Judgment of 8 Feburary 1951, NJ (1951) No. 129, ILR (1950) No. 39 p. 143, noted in ILR (1954) p. 49.
9. Article 254: “The course of proceedings is suspended: (1) by the death of either party; (2) by a change in the personal status of either party; …”
10. Cf., 7 NYIL (1976) p. 371; Bos, M. “Surinam's road from self-government to sovereignty”, 7 NYIL (1976) p. 140CrossRefGoogle Scholar, and Heijmans, A.M.J., “The Netherlands and State Succession with regard to Treaties” in International Law in the Netherlands, Vol. I, (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1978), pp. 405–70 at pp. 432–6.Google Scholar
11. 5 NTIR (1958) pp. 107–18, Stb. 1954 No. 596.
12. The Court also rejected the appellant's argument that according to Surinamese law the case now came under the jurisdiction of the adminstrative court, and the (Netherlands) civil court therefore had no jurisdiction. In the Court's view, the Surinamese law could not prejudice Dutch jurisdictional rules according to which the civil court had jurisdiction in this case.
13. Note by F.W.G.M. van Brunschot.
14. Discussed by P. Kapteyn in SEW (1980) p. 726.
15. Trb. 1965 No. 130. Treaties establishing the European Communities (Luxembourg: European Communities, 1973) p. 775Google Scholar. Art. 14; “In the application of income tax, wealth tax and death duties and in the application of conventions on the avoidance of double taxation concluded between Member States of the Communities, officials and other servants of the Communities who, solely by reason of the performance of their duties in the service of the Communites, establish their residence in the territory of a Member State other than their country of domicile for tax purposes at the time of entering the service of the Communities, shall be considered both in the country of their actual residence and in the country of domicile for tax purposes, as having maintained their domicile in the latter country provided that it is a member of the Communities….”
16. If the Protocol had not been applicable, X. could have been regarded as a national tax-payer within the meaning of the Act on Wealth Tax under Art. 4(1) of the General Act: on State Taxes [Algemene Wet inzake Rijksbelastingen] of 1959, and in that case could have qualified for deduction of the tax-free sum.
17. With comment by the Editors.
18. Stb. 1976 No. 467, digested in 8 NYIL (1977) p. 325 et seq. See also, particularly, Ko Swan, Sik, “The Netherlands and the Law concerning Nationality”, ”International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980), p. 1 et seq., at p. 45 et seq.Google Scholar
19. Decree of the State-Secretary of Justice of 10 March 1977, No. 551/176, Stc. of 27 April 1977 No. 81.
20. Decree of the Minister of Justice of 23 March 1979, No. 127/179, in Stc. of 2 April 1979 No. 65.
21. Even before the 1979 modification there was some flexibility in applying the 1977 requirement. See Ko Swan Sik, loc.cit., in n. 18 at p. 50.
22. In A.M.R.N. v. State-Secretary of Justice (Council of State, Judicial Division, 17 March 1980, Gids Vreemdelingenrecht No. D13–49) the appellant held a residence permit “for limited purposes” viz., for the period during which her husband was studying in the Netherlands. This, and the fact that appellant had declared in writing in 1975 that she recognized her obligation to leave the Netherlands after her husband had terminated his studies, led the State-Secretary to the conclusion that there were objections to her residence in the country for an indefinite period of time. The Judicial Division concurred. It held that the facts, and the absence of any fundamental change of circumstances at the time of the State-Secretary's decision, could very well have led the State-Secretary to his conclusions on the presence of objections. Further, it had not found that the person's interests in naturalization were such that her application should have been granted in derogation to the Directive.
23. A survey of decisions involving aliens law by the Judicial Division of the Council of State and by ordinary courts during 1979–1980 is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1981 (Bijl. Hand. II 1980/81 - 16400 VI No. 2 pp. 81–83).
24. With a comment by the Editors.
25. 218 UNTS p. 255; Trb. 1954 No. 100. The text of the provisions is contained in the extract from the judgment.
26. With a comment by the Editors.
27. Note by F.H. van der Burg. On the same date the Judicial Division decided two broadly similar cases, i.e., (1) C.U. v. State-Secretary of Justice (Gids Vreemdelingenrecht No. D14–21) and (2) Y. v. State-Secretary of Justice (AROB, section III, p. 822 with a note by H.P. Vonhögen, summarized in AA (1981) p. 127 with a note by M.C.B. Burkens). A year before, on 10 November 1978, the District Court of Alkmaar, in summary proceedings suspended the expulsion of the same three Turks on broadly the same grounds, until a decision had been made at the highest instance (Gids Vreemdelingenrecht No. F-14, Rechtspraak Vreemdelingenrecht (1978) No. 55.).
28. Cf., 7 NYIL (1976) p. 327 n. 70.
29. The name “Church Moroccans” has been applied to 182 Moroccans who, after refusal of their applications for residence permits under the “regularization regulation”, went on hunger strike in various Dutch churches to get the Netherlands Government to change its policy on regulatization. Cf., also 10 NYIL (1979) p. 482.
30. On 24 January 1980, the Council of State decided that those of the Church Moroccans who, for whatever reason, had made a new application after this date, did not qualify for a residence permit (WRvS/R. 2.24/80). This time limit was not, however, applicable to a Turk, who, on 17 October 1978 was in a situation similar to that of the Church Moroccans, since the press release merely referred to “Church Moroccans” (Judgment of 5 June 1980, Gids Vreemdelingenrecht No. D 14–23, AB (1980) No. 187 with note by F.H. van der Burg).
31. On 25 April 1980, the Supreme Court reversed a decision of the Court of Appeal of Amsterdam of 1 November 1979 dismissing the appeal of a Turk (who, incidentally, had not made a second application for a residence permit until 4 December 1978) in which he relied on the similarity of his case to that of the Church Moroccans (AB (1980) No. 482 with note by F.H. van der Burg, summarized in AA (1981) p. 130 with note by M.C.B. Burkens).
32. Summarized and discussed by Swart, A.H.J. in NJCM Bulletin (1980) p. 368 et seq.Google Scholar
33. Art. 34: “(1) The Judicial Review of Administrative Decisions Act is applicable to decisions made under the provisions of this Act in the sense that appeal to the Judicial Division of the Council of State, as provided for in this Act, lies for (a) … (b) those whose request for review under Art. 29 and 30 has been dismissed, either in whole or in part, … on the understanding that, if the decision was made in accordance with the opinion of the Committee, such appeal lies only if, on the day such decision was made, the alien had been resident in the Netherlands for at least one year.”
34. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 6(1): “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…”
35. Trb. 1969 No. 99. Art. 14(1): “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…”
36. Art. 8(1): “Everyone has the right to respect for his private and family life, his home and his correspondence.”
37. Art. 13: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
38. Trb. 1975 No. 133. Art. 10: “Each Contracting Party shall ensure the availability of an appeal procedure [hogere voorziening] against decisions refusing, withdrawing or refusing extension of such permission as referred to in Arts. 2–9.”
39. 10 Yearbook of the European Convention on Human Rights (1967) p. 478.Google Scholar
40. Publ. ECHR Series A, Vol. 18 (1975) p. 4, NJ (1975) No. 462 with a note by E.A. Alkema.
41. Stb. 1963 No. 563. Art. 65: “The provisions of agreements which by virtue of their terms may be binding on everyone shall have this binding effect as from the time of publication. Rules with regard to the publication of agreements shall be laid down by law.”
Art. 66: “Legal regulations in force within the Kingdom shall not apply if this application should be incompatible with provisions, binding on anyone, of agreements entered into either before or after the enactment of the regulation.”
42. 7 NYIL (1976) p. 334, Cahiers de droit européen (1976) p. 328Google Scholar, 18 Yearbook of the European Convention on Human Rights (1975) p. 428.Google Scholar
43. The Court of Appeal of The Hague reached a similar conclusion in K.A. v. The State of the Netherlands (Judgment of 16 April 1980, NJ (1981) No. 17, Gids Vreemdelingenrecht No. C-3, discussed by Swart, A.H.J. in NJCM Bulletin (1980) p. 368 et seq)Google Scholar. The Court reversed the judgment of the President of the District Court of The Hague, who in this case held Art. 34(1)(b) to be in conflict with Art. 6(1) of the European Convention. Cf., 11 NYIL (1980) pp. 302–5.
44. The Judicial Division of the Council of State expressed this view on Art. 10 earlier in its judgment of 1 February 1979 in S.T. v. State-Secretary of Justice (Rechtspraak Vreemdelingenrecht (1979) No. 45 with a comment by the Editors, Gids Vreemdelingenrecht No. D25–1). The Division repeated this view in its judgments of 5 and 12 July 1979, Institute's Collection Nos. 1434 and 1435 (WRvS/R.2.8/79”). Cf., also, District Court of Amsterdam, 17 August 1978, 10 NYIL (1979) pp. 450–2, similarly, District Court of Amsterdam, 19 October 1978, Rechtspraak Vreemdelingenrecht (1978) No. 47 and District Court of Amsterdam, 2 November 1978, Rechtspraak Vreemdelingenrecht (1978), No. 48. Otherwise, District Court of The Hague, 29 December 1978, Rechtspraak Vreemdelingenrecht (1978) No. 51 with a comment by the Editors.
45. With a comment by the Editors.
46. For Art. 34(1)(b), see supra n. 33. For the special significance of Art. 34(1)(b), see Swart, A.H.J., “The Dutch Law on Aliens”, in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) pp. 103–4.Google Scholar
47. 189 UNTS p. 137; Trb. 1951 No. 131 amended by Protocol of 31 January 1967, 606 UNTS p. 267, Trb. 1967 No. 75. Art. 16: “1. A refugee shall have free access to the courts of law on the territory of all Contracting States. 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi. 3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his babitual residence the treatment granted to a national of the country of his habitual residence.”
48. Art. 1(A): “For the purposes of the present Convention the term ‘refugee’ shall apply to any person who … (2) … owing to 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; …”
49. For a similar application of Art. 16(2), cf., infra pp. 322–4. The Judicial Division had applied Art. 16(1) previously in a similar situation, cf., 9 NYIL (1978) pp. 287–8, and again in its judgment of 2 May 1979 (WRvS/R.2.113/79). It appears from the latter judgment that the Division held Art. 16(1) to be applicable if the alien's habitual residence was not in the Netherlands, and Art. 16(2), if it was. The reasons stated in this case for the incompatibility of Art. 34(1)(b) of the Aliens Act with Art. 16(1) were different from those stated above in respect of Art. 16(2): “In the opinion of the Division, the restriction laid down in Art. 34(1) opening sentence and (b) concerning the period of residence limits the right of free access to the courts within the meaning of Art. 16(1) of the Convention as far as appeal to the Division against decisions such as those referred to in Art. 34 of the Aliens Act is concerned, which appeal is based on the Wet AROB.
The fact that this restriction applies to aliens generally is not relevant in this connection, since Art. 16(1) is intended to accord to refugees more favourable treatment in terms of free access to the courts of law within the meaning of Art. 7(1) of the Convention. As to the question whether Art. 34(1), opening sentence and (b), is compatible with Art. 16(1) of the Convention, as far as this restriction is concerned, the Division considers – having regard to the second paragraph of this Article – that the first question to be answered is whether such restriction also applies to review under the Wet AROB of decisions other than those referred to in Art. 34 of the Aliens Act and, further, whether this restriction is necessary for the proper administration of justice. The Division finds that such a restriction does not apply in other cases of review under the Wet AROB, even in cases of review of decisions which affect the alien's legal position as such, viz., decisions based on the Aliens Labour Permit Act [Wet arbeidsvergunning vreemdelingen] and those concerning visas. Nor did it appear from the parliamentary history of Art. 34 or otherwise that the restriction would be necessary for the above-mentioned purpose….”
50. In N.N.H. v. State-Secretary of Justice, the Division decided that the mere fact of belonging to South Africa's black population and, consequently, being subject to the apartheid laws was not, in itself, sufficient for N.N.H. to be regarded as a refugee. (Judgment of 16 May 1979. Rechtspraak Vreemdelingenrecht (1979) No. 6, with a comment by the Editors.). In its judgment of 2 May 1979 (see supra n. 49), the Division dismissed the request of a Lebanese national for refugee status because the group he belonged to in Lebanon had never been subject to persecution.
51. Art. 15(1): “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationality … may be admitted as refugees by Our Minister.”
52. With a comment by the Editors.
53. Note by F.H. van der Burg.
54. Note by F.H. van der Burg, under AB (1980) No. 11. Cf., also Veen, J. v.d., “Does persecution by fellow citizens in certain regions of a State fall within the definition of ‘persecution’ in the Convention relating the Status of Refugees of 1951” 11 NYIL (1980) pp. 167–174 at p. 171.Google Scholar
55. Cf., I.Y. v. State-Secretary of Justice, judgment of 18 August 1978, 10 NYIL (1979) p. 463. In X. v. State-Secretary of Justice, the Judicial Division suspended the hearing until it had had sight of the report of the Churches Committee on Migrant Workers in Europe, entitled ‘Christian Minorities of Turkey’, which would show the absence throughout Turkey of any refugee for Syrian-Orthodox Christians (Judgment of 26 July 1979, AB (1979) No. 10). However, in S.D. v. State-Secretary of Justice (Judgment of 7 February 1980, Gids Vreemdelingenrecht No. D 12–36, Rechtspraak Vreemdelingenrecht (1980) No. 3 with comment by the Editors) and I.O. v. State-Secretary of Justice (Judgment of 28 April 1980 WRvS/R. 2.112/80), the Division found, after inspection of the report, that it warranted no such conclusion.
56. Cf. also 11 NYIL (1980) pp. 209–10.
57. With a comment by the Editors.
58. 34 LNTS p.11; Stb. 1924 No. 594.
59. For the text of Art. II, see text under Held.
60. See supra n. 47.
61. In summary proceedings, the appellant successfully contested the State-Secretary's decision to expel him pending review. Cf., District Court of Amsterdam, 31 May 1978, NJ (1979) No. 558 and Court of Appeal of Amsterdam, 1 March 1979, NJ (1979) No. 558, and Rechtspraak Vreemdelingenrecht (1979) No. 24, with a comment by the Editors. The President of the District Court considered, inter alia, that Art. 16(1) of the Convention overruled Art. 34 of the Aliens Act to the extent that this provision would bar a refugee within the meaning of the Convention appealing against a negative decision. He referred to an earlier decision of the Council of State, Judicial Division, of 20 December 1977. Cf., 9 NYIL (1978) pp. 287–8.
62. Cf., supra, the decision of the Judicial Division of 10 April 1979, pp. 317–20.
63. “Republikflucht” was also involved in M.M.S. v. State-Secretary of Justice. In this case it was a Bulgarian national. Council of State, Judicial Division, 19 December 1979, Rechtspraak Vreemdelingenrecht (1979) No. 90; Gids Vreemdelingenrecht No. D 12–31.
64. The Judicial Division also dismissed a plea of “Nachfluchtgründe” in its judgment of 26 July 1979 (A.A.K. v. State-Secretary of Justice, Rechtspraak Vreemdelingenrecht (1979) No. 10 with a comment by the Editors, Gids Vreemdelingenrecht No. D 12–24) and of 19 December 1979, see supra n. 63. Cf., also the cases reported in 10 NYIL (1979) pp. 461–2 and 482.
65. Summaries of Supreme Court decisions in 1980 on extradition can be found in Delikt en Delinkwent, with a table of the articles of the Extradition Act and the extradition treaties which were applied. The most important are also published in the Nederlandse Jurisprudentie, with an annual subject index (the relevant entry here being: Extradition).
66. Note by G.E. Mulder, discussed by Barnhoorn, L.A.N.M. in NJCM Bulletin (1980) p. 137Google Scholar. Summarized in DD (1980) No. 237.
67. Art. 5(3): “In the case of conviction and sentence in absentia [to a term of imprisonment of four months or more, to be served in the requesting State – Art. 5(1)(b)] extradition will be allowed only when the person whose extradition is requested has been or will still be afforded sufficient opportunity to present his defence.”
68. Cf., Supreme Court 9 October 1973, 5 NYIL (1974) pp. 313–4. Cf., also Kuyper, J.R.H., “The Netherlands Law of Extradition” in International Law in the Netherlands, Vol. II (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1979) pp. 220–3.Google Scholar
69. 359 UNTS, p. 273; Trb. 1965 No. 9.
70. Art. 6(3): “Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing or, if he has no sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; …”
71. In his pleading, the Advocaat-Generaal (Solicitor-General) Haak, advanced another argument for this interpretation which he derived from the fact that the Netherlands had, in the meantime, signed the Second Additional Protocol to the European Convention on Extradition of 17 March 1978 (Trb. 1979 No. 120); Art. 3 of this Protocol contains a provision analogous to Art. 5(3) of the Extradition Act.
72. With a comment by the Editors.
73. Art. 26: “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 or any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
74. Art. 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convention without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
75. Cf., Swart, A.H.J., “The Dutch Law on Aliens”, in International Law in the Netherlands Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) p. 93.Google Scholar
76. With a comment by the Editors.
77. Art. 6(2) orders the border-control officials not to deny, except under special instructions of the Minister to that effect, the entry into the Netherlands to aliens, who would otherwise be compelled to go to a country in regard to which they could refer to a well-founded fear of being persecuted for reasons of religion, political opinion, nationality, race, or a social group to which they belong. Art. 22(2) forbids the expulsion of these aliens, except again under special instructions of the Minister.
78. Art. 33(1): “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.”
79. Cf., for recognition of Eritreans as refugees, supra pp. 317–20,
80. With a comment by the Editors.
81. Stb. 1859 No. 9.
82. See supra n. 33.
83. With a note by the Editors.
84. Res. No. 33/165, text in: Ministry of Foreign Affairs publication No. 123 vol. II pp. 302–3.
85. Cf. NJB (1974) p. 375 and Gids Vreemdelingenrecht pp. II 76–7.
86. On 16 May 1979, the Judicial Division of the Council of State dismissed an application for admittance as an asylum-seeker by a white South African, who had left his country as a result of discontent with the local situation and because he had been assigned to the Burgerwagreserve. The Judical Division found no evidence of the latter fact, nor was it deemed likely that he had to fear persecution in South Africa. His appeal to the principle of equality was rejected on the ground, inter alia, that in this case the call-up was for ordinary military service (Rechtspraak Vreemdelingenrecht (1979) No. 7, Gids Vreemdelingenrecht No. D 12–29).
87. Considering the greatly increased number of cases brought before Dutch courts in which the provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights are at issue, and the limited space available in this Yearbook, from this year, the NYIL will not include a complete documentation of all relevant decisions. Only cases which are interesting from the viewpoint of international law will henceforth be mentioned. For a complete overview, reference should be made to the annual surveys in the Yearbook on the European Convention on Human Rights, and the Cahiers de Droit Européen (for the European Convention) and in the NJCM Bulletin (for the European Convention and the International Covenant).
88. See supra n. 87.
89. Art, 114 makes wilful disobedience punishable.
90. For text of Art. 26, see supra n. 73.
91. W.B. committed the offence on 23 November 1978.
92. In the case of M.J.A. Suèr v. Mayor of Zaandam, the Judicial Division of the Council of State decided that the plaintiff's reliance on the International Covenant on Civil and Political Rights and the Fourth Protocol to the European Convention on Human Rights – in order to prevent a threatened eviction – could not succeed, since neither instrument had entered into force at the time of the eviction order and threat of police action. (Judgment of 5 July 1979, AB (1980) No. 414, with a note by J.H. van der Veen).
93. On 4 December 1979, the Supreme Court affirmed the judgment of the Court Martial Appeals Court (MRT (1980) p. 153, with a note by W.H. Vermeer, NJ (1980) No. 157, with a note by Th.W. van Veen, summarized in DD (1980) No. 77 I). In his conclusion Advocaat-Generaal Haak went into the direct effectiveness of the Covenant and of Art. 26. On 18 December 1979, the Supreme Court upheld a judgment delivered by the Court of Appeal of Amsterdam stating that Art. 12 of the Conscientious Objections Act, which imposes a longer term of service on conscientious objectors than on those actually performing military service, is not inconsistent with Art. 26 of the International Covenant on Civil and Political Rights (NJ (1980) No. 205).
94. Note by P. den Boer. Comment by van Raad, C. and de Hosson, F.C., “Nederlandse woonplaatsficties in internationaal perspectief” [Dutch residence fictions in international perspective], 109 Weekblad voor Fiscaal Recht (1980) pp. 757–775, 802–820.Google Scholar
95. Trb. 1970 No. 192. Art. 4: “(1) For the purposes of the present Convention ‘resident of one of the states’ means any person who under the laws of that state is liable to taxation on account of his permanent or temporary residence … or any other similar circumstance; … (2) For the purposes of the present Convention, a person belonging to a diplomatic or consular agency of one of the states in the other state or a third state and who is a national of the sending state, is deemed to be a resident of the sending state if he has the same liability to taxation in respect of taxes on income and capital in that state as have the residents of that state. (3) If, under section 1, a natural person is a resident of both states, the following rules shall apply: 1. he is deemed to be a resident of the state where a permanent home is available to him. If he has a permanent home in both states, he shall be taken to be a resident of the state with which he has the closest personal and economic connections (focus of vital interests); …”
96. Stc. 1964 No. 253. Art. 25: “(1) Diplomats and career consuls of foreign powers and the officials attached to them are exempt from taxation in respect of the taxes enumerated in Art. 26, provided that they (a) are not Netherlands nationals, (b) are not otherwise employed, nor engaged in a profession on a self-employed basis, nor running a business within the Realm.
(2) The exemption applicable to the representatives and officials referred to in (1) applies equally to the wives of the representatives and officials concerned and to their children under the age of majority, if these children live with them and are their own children, step-children or foster-children, and also to persons employed by the representatives or officials.” Cf., also Maas Geesteranus, G.W., “The Netherlands and the Status of Diplomatic, Consular and International Officials” in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) at p. 261.Google Scholar
97. Trb. 1962 No. 101.
98. Stb. 1965 No. 145. Art. 2(2) reads: “Dutch nationals resident outside the Realm and employed by a Dutch public body, as well as their wives and their children under the age of majority if they live with them, shall be deemed to be resident within the Realm…”
99. Art. 34: “A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal…”
Art. 37: “The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Arts. 29 to 36 …”
100. In its judgment of 12 January 1979, in the case of R. Kharagjitsingh v. O. Sewrajsing, the Supreme Court held a sales contract between a Surinamese and an AntUlian in respect of immovable property situated in the Netherlands Antilles to be valid, even where it was inconsistent with the Surinamese Currency Regulations of 1947 (no permission had been obtained). The Court found: “The considerable interest of the Netherlands Antilles in an undisturbed legal adminstration in respect of local immovable property, does not allow acceptance, in the Netherlands Antilles, of the nullity of the sales contract under Surinamese law”. The Court added that “Arts. 36, 37 and 40 of the Charter for the Kingdom of the Netherlands … contain no provisions relating to the point in question” (NJ (1980) No. 526 with note by J.C. Schultsz. Discussed by van Rooij, R. in Revue critique de droit international privé (1980) pp. 68–79Google Scholar and by Jessurun d'Oliveira, H.U. in AA (1980) pp. 254-62).Google Scholar
101. Stb. 1948 No. I 186.
102. Trb. 1969 No. 99. For the text, see under “Held”.
103. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 7: “(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.”
104. Stb. 1943 No. D 61 and 1947 No. H 233.
105. 82 UNTS p. 279.
106. Cf., 4 NYIL (1973) pp. 433–5.
107. AD (1948) Nos. 122, 123, 156, 157, 158, 175.
108. Cf., 9 NYIL (1978) p. 339 n. 174.
109. 10 NYIL (1979) pp. 485–6.
110. Cf., supra, p. 338.
111. Cf., supra, p. 338.
112. Art. 4(2) BBS provides that Dutch penal law is applicable to Dutch nationals who have committed any of the offences defined in Art. 27a BBS outside the European part of the Kingdom.
113. Art. 6: “1. 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 … 2. … 3. Everyone charged with a criminal offence has the following minimum rights: (a) …; (b) to have adequate time and facilities for the preparation of his defence; (c) …; (d) to examine or to have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) …”
114. 9 NYIL (1978) pp. 337–48.
115. 10 NYIL (1979) pp. 514–7.
116. 10 NYIL (1979) pp. 517–20.
117. 11 NYIL (1980) pp. 334–6.
118. NJ (1980) No. 104 with a note by A.L. Melai. Cf., also his comment in DD (1980) pp. 243–7.
119. Cf., supra, p. 339.
120. Cf., supra, p. 338.
121. Cf., also 9 NYIL (1978) p. 342.
122. Cf., Final Report of the Schdffer Commission. De affaire Menten 1945–1976 [The Menten Case 1945–1976], Bijl.Hand. II 1978/79–14252 No. 19.
123. Cf., 10 NYIL (1979) pp. 516–7.
124. Note by J.E. Goldschmidt.
125. Stb. 1945 No. F 321; Trb. 1979 No. 37. Art. 2(7) reads: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
126. International Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 9 ILM (1970) p. 1292.
127. Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Art. 8: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.”
Art. 11: “(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the adminstration of the State.”
Art. 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
128. The Games were due to be held at Arnhem from 21 June to 5 July 1980 inclusive.
129. Resolutions of 9 November 1976 (Netherlands in favour), cf., 10 NYIL (1979) p. 405. The Netherlands abstained from voting on GA Resolution 32/105 M of 14 December 1977 which contained the International Declaration on Apartheid in Sports, cf., 11 NYIL (1980) pp. 256–7, and supra p. 206.
130. The Netherlands abstained from voting on Res. 34/93 N of 12 December 1979.
131. Bijl.Hand. II 1979/80 - 15800 V/XVI No. 11; Hand II 1979/80 pp. 437, 440.
132. Bijl.Hand. II 1979/80 - 15800 V/XVI No. 12.
133. Decision of 3 January 1980, AB (1980) No. 353, with note of J.E. Goldschmidt; De Gemeentestem (1980) p. 238Google Scholar, with note of J.M. Kan; summarized in ELD (1981) pp. 41, 47–9. For the international aspects of this question, Siekmann, R.C.R., “Apartheid en sport: Zuidafrikaanse deelname aan de Paralympics 1980” [South-African participation in the 1980 Paraplegic Olympics], NJCM Bulletin (1980) pp. 302–12.Google Scholar
Pending the decision on appeal, the appellants had requested the President of the Judicial Division of the Council of State to order measures to ensure that misunderstandings about the interpretation of the Council of Ministers' contested decision, which had resulted from activities of the Commissaris der Koningin in de Provincie Gelderland [Queen's Commissioner in the Province of Gelderland], be officially removed, by clearly stating that the decision had not been motivated by the consideration that the Government would be unable to guarantee the security of the South African team, and by deciding that the Government was bound to ensure that the Commissaris der Koningin's activities were stopped (cf., Aanh.Hand. II 1979/80 pp. 2831–2832, 3132). However, the President had dismissed this request, considering that the respondent's stand in respect of misunderstandings that might arise in respect of considerations that had not motivated the contested decision, could not be regarded as being part of the implementation of the decision (Decision of 27 May 1980, De Gemeentestem (1981) p. 5, with note by J.M. Kan).Google Scholar
134. For the text of the Arts. 65 and 66, see supra n. 41.
135. International Sports Organization for the Disabled (ISOD) and International Stoke MandeviUe Games Federation (ISMGF).
136. Note by J.R. Stellinga.
137. Note by W.H. Vermeer, cf., also pp. 279–300. Discussed by Siekmann, R.C.R. in “A Survey of the judicial decisions in pursuance of the Dutch participation in the UN Peacekeeping Force in Lebanon”, 27 NILR (1980) pp. 194–212.CrossRefGoogle Scholar
137a. Note by M. Scheltema.
138. Stb. 1922 No. 43; Stb. 1958 No. 258. Art. 33(1) reads: “Conscripts may be designated for service outside Europe: (a) if they have given their consent; (b) in the event of war or threat of war; (c) in other exceptional circumstances, subject to authorization by the Crown; (d) in normal times, provided it is to be anticipated that their period of service will not be exceeded.”
139. Stb. 1979 No. 450; AB (1979) No. 497 with a note by R. Stellinga, and MRT (1979) pp. 514–5. Cf., also 11 NYIL (1980) pp. 139–41.
140. See, 11 NYIL (1980) pp. 336–41.
141. See, 11 NYIL (1980) pp. 239–41.
142. Art. 27(1) provides that ordinary conscripts are under an obligation to carry out theii service: (a) for basic training; (b) for refresher training; (c) in the event of war, threat of war or other exceptional circumstances; …
143. See, 11 NYIL (1980) p. 340: “It has been established that the conscripts dispatched to Lebanon have the task of performing effective service as a part of armed forces called to prevent hostilities between opposed armed parties and that, in the performance of this task, these conscripts may get involved in fighting.”
144. 17 ILM (1978) p. 491.
145. In M.E.H. Melissen et al. v. the State of the Netherlands, the Court of Appeal of The Hague delivered a similar judgment on the applicability of Art. 33(1)(d). The Court held the dispatch of conscripts against their will to be lawful under Art. 33(1)(c), since authorization of the nature referred to in (c) had been granted by the Royal Decree of 13 August 1979. As regards Melissen's contention that such dispatch of conscripts could not be regarded as protection of the interests of the State within the meaning of Art. 195 of the Constitution, the Court considered: “… that Art. 195 of the Constitution, which provides that there shall be an Army for the protection of the interests of the State, cannot, in the Court's opinion, lead to the conclusion that there is a ban on using this Army or part thereof for a task which, at the present time, may be reckoned as protection of the interests of the State, in view of the connection between Dutch interests and international developments, e.g., participation in UN peace-keeping operations, in particular the present UNIFIL expedition to Lebanon; …”
The Court of Appeal upheld the decision of the President of the District Court of The Hague (cf., 11 NYIL (1980) p. 341 n. 158). Judgment of 27 March 1980, Institute's Collection No. 1425. Discussed by R.C.R. Siekmann, op.cit., p. 208.
146. Summarized in DD (1980) No. 342.
147. Cf., 11 NYIL (1980) pp. 341–3.
148. The owner of the ferro-chrome and, consequently, the accused in the criminal proceedings was unknown at the time of the judgment.
149. Stb. 1966 No. 289.
150. Stc. 1980 No. 5. Cf., also supra p. 294.
151. Note by J.M.M. Maeijer in No. 73. Cf., also. Vogelaar, Th., “Multinational Corporations and International Law”, 27 NILR (1980) pp. 68–79 at pp. 73–4CrossRefGoogle Scholar; Possen, N. and Schuddeboom, R., “De OESO Richtlijnen voor Multinationals Ondememingen” [OECD Guidelines for Multinational Enterprises], AA (1980) pp. 764–70 at pp. 769–70Google Scholar, and Boukema, C.A., “Hof Amsterdam, 21 June 1979, Ondememingskamer: Enquêterecht (BATCO)” [“Court of Appeal of Amsterdam, 21 June 1979, Companies Division: the right of inquiry (BATCO)”], TVVS/Ondernemingsrecht (1979) pp. 241–6.Google Scholar
152. Mentioned in the Annex to the Declaration of 21 June 1976 by Governments of OECD Member States on International Investment and Multinational Enterprises 15 ILM (1976) pp. 967–77.
153. Through its Chairman, during the Annual Meeting of British-American Tobacco (BAT) Industries in London on 16 March 1978.
154. The Guideline referred to reads: “Employment and Industrial relations. Enterprises should within the framework of law, regulations and prevailing labour relations and employment practices, in each of the countries in which they operate, … (6) in considering changes in their operations which would have major effects upon the livelihood of their employees, in particular in the case of the closure of an entity involving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of their employees, and where appropriate to the relevant governmental authorities, and cooperate with the employee representative and appropriate governmental authorities so as to mitigate to the maximum extent practicable adverse effects; …”