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Published online by Cambridge University Press: 07 July 2009
1. Note by I.C. van der Vlies.
2. Note by J.B.J.M. ten Berge.
3. Cf. 14 NYIL (1983) pp. 376–378.
4. Cf. 14 NYIL (1983) p. 377.
5. The appellants referred in this connection to the provisions dealing with coups d'état, murder and other crimes or violence (both against persons and property)
6. Cf. 11 NYIL (1980) pp. 290–291.
7. Art. 13a reads: “The judicial jurisdiction of the courts and the execution of court decisions and of legal instruments drawn up by legally authorized officials (authentieke akte) are subject to the exceptions acknowledged under international law.”
8. Even after the judgment became final, Portugal continued to refuse payment. In the autumn of 1983, the respondent levied execution against the Consulate's bank account in Amsterdam. Portugal declined to avail itself of any of the possible methods of obtaining the cancellation of the execution. However, before execution could be completed, Portugal paid the sum due, thereby making it possible to drop the proceedings to validate the attachment against the bank.
9. With a note by P. den Boer.
10. Trb. 1975 No. 108; Art. 16: “(1) The persons referred to in Articles 13 and 14 shall be subject to a tax for the benefit of the Organisation on salaries and emoluments paid by the Organisation, subject to the conditions and rules laid down by the Administrative Council within a period of one year from the date of the entry into force of the Convention. From the date on which this tax is applied, such salaries and emoluments shall be exempt from national income tax. The Contracting States may, however, take into account the salaries and emoluments thus exempt when assessing the amount of tax to be applied to income from other sources. (2) Paragraph 1 shall not apply to pensions and annuities paid by the Organisation to the former employees of the European Patent Office.”
11. Stc. 1964 No. 526. Art. 31: “The income tax which, for the purposes of Art. 40 of the Act, should be ascribed to the part of the income that is exempt by virtue of international legal provisions, shall be the amount which bears the same proportion to the tax that would be due if no account were taken of the exemption under the 1964 Income Tax Act, as the exempted part of the income bears to the gross income – the exempted part included –, less the losses set off in accordance with Chapter IV of the latter Act, in so far as they consist of negative gross income.”
12. Stb. 1959 No. 301. Art. 40: “When part of an income is received from an international organization and that part, by virtue of international legal provisions, is exempt from Dutch income tax levies, the income tax due on the remainder of the income will, except in so far as another method of calculation has been prescribed by those provisions, be the difference between the tax calculated without account being taken of the exemption and the tax which, according to the rules made by Our Minister, should be ascribed to the exempted part of the income.”
13. As regards this Office, cf. Kuyper, P.J., “The Netherlands and International Organizations”, in International Law in the Netherlands, Vol. II (Alphen aan den Rijn, Dobbs Ferry, N.Y. 1979) p. 21 n. 81.Google Scholar
14. Stb. 1964 No. 519.
15. Art. 3(3): “Income is gross income (a)… (b) minus personal commitments, extraordinary expenses and deductible gifts …”
16. Cf. also, The Hague Court of Appeal, 30 December 1971, 5 NYIL (1974) p. 297; Supreme Court, 7 June 1972, 4 NYIL (1973) p. 396; The Hague Court of Appeal, 11 September 1972, 5 NYIL (1974) pp. 299–300, and Supreme Court, 20 April 1979. 9 NYIL (1978) p. 275.
17. On the same day, the Supreme Court dismissed the appeal in cassation entered by X's wife against the judgment of the Court of Appeal in which, under Art. 55(3) of the Income Tax Act, she was classed in tariff group 1 instead of the (more favourable) tariff group 4. The latter tariff group would have been appropriate if X.'s exempted salary had not been taken into account. Since X's taxable income would then have been lower than that of his wife she should have been designated as the breadwinner and tax should have been levied on her income and not on that of X., under tariff group 4. The Supreme Court held that Article 16 of the Protocol mean that X's exempted salary from the European Patent Office could not be taken into account in calculating the income of X's wife under Article 55(3). (BNE (1983) No. 148, with a note by P. den Boer).
18. Note by L.A.N.M. Barnhoorn. Extract published in NIPR (1983) No. 364.
19. Laid down in the Declaration of the Algerian Government of 19 January 1981 concerning the settlement of claims by the Government of the United States and the Government of the Islamic Republic of Iran, Trb. 1981 No. 155, ILM (1981) p. 224.
20. This draft Agreement has not been published, but Articles 17 to 19 are quoted in the letter of the Secretary-General of the Ministry of Foreign Affairs to the Secretary-General of the Tribunal, dated 2 February 1983, to which reference is made in the text infra and in n. 21 Articles 17 to 19 read as follows:
“Art. 17. (1) Subject to the provisions of Article 18, the Tribunal, within the scope of the performance of its tasks, shall enjoy in the Netherlands immunity from jurisdiction, except (a) to the extent that the Tribunal shall have expressly waived such immunity in a particular case; (b) in the case of a civil action brought by a third party for damage resulting from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Tribunal, or in respect of a motor traffic offence involving such a vehicle. (2) The property and assets of the Tribunal, wherever situated, shall be immune from requisition or attachment. (3) The property and assets of the Tribunal shall also be immune from administrative or provisional judicial constraint, except in so far as may be temporarily necessary in connection with the prevention of, and investigation into, accidents involving motor vehicles belonging to or operated on behalf of the Tribunal.
Art. 18 (1) If the Tribunal institutes or intervenes in proceedings before a court in the Netherlands, it submits, for the purpose of those proceedings, to the jurisdiction of the Netherlands courts. (2) In such cases the Tribunal cannot claim immunity from the jurisdiction of the courts in respect of a counterclaim if the counterclaim arises from the legal relationship or the facts on which the principal claim is based.
Art. 19. If the Tribunal appears before the courts in order to assert immunity, it shall not thereby be deemed to have waived immunity.”
21. Cf. supra pp. 276–7.
22. Trb. 1973 No. 43. Art. 7: “(1) A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has on the territory of the State of the forum an office, agency or other establishment through which it engages, in the same manner as a private person, in an industrial, commercial or financial activity, and the proceedings relate to that activity of the office, agency or establishment. (2) Paragraph 1 shall not apply if all the parties to the dispute are States, or if the parties have otherwise agreed in writing.”
23. Cf. also supra p. 356.
24. Cf. 13 NYIL (1982) p. 305 n. 3. Reference to the Royal Decree of 13 July 1981 (Stb. 1981 No. 451) would have been more logical. Cf. 13 NYIL (1982) p. 305.
25. The Tribunal has appealed against the decision to the District Court of The Hague.
26. Note by A.H.J. Swart.
27. Note by A.H.J. Swart.
28. Trb. 1975 No. 132. Art. 5: (1) Dutch nationals who have attained the age of majority, and who were born in Surinam or were born outside Surinam and belong to one of the groups of persons defined in Article 4(b) and who axe domiciled or actually resident outside the Republic of Surinam at the time of the entry into force of this Agreement, shall acquire Surinamese nationality, even outside the Republic of Surinam, by giving notice of their wish to do so before 1 January 1986. (2) The persons referred to in the first paragraph have a right at any time to be admitted to the Republic of Surinam with their families, and to be treated there as Surinamese citizens in every respect. They shall acquire Surinamese nationality by right, if they are domiciled or actually resident in the Republic of Surinam for two years.” Cf., Ko Swan, Sik, “The Netherlands and the law concerning nationality”, in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y. 1980) pp. 34–35Google Scholar, and Bos, M., “Surinam's road from self-government to sovereignty”, 7 NYIL (1976) pp. 146–149.CrossRefGoogle Scholar
29. I.e. the day on which Surinam acquired independence and the Agreement entered into force.
30. Art. 43: “(1) Any person who is refused admission to the Netherlands, or is subjected to a measure that can be applied only to aliens, may, if claiming Dutch nationality, appeal to the Supreme Court of the Netherlands by means of a petition signed by a lawyer unless the law provides for a different procedure for obtaining a judicial decision.” For Art. 43, 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. 104.Google Scholar
31. Note by A.H.J. Swait. Mentioned by D. Kokkini-Iatridou in AA (1983), Katern No. 8, pp. 290–291.
32. Art. 8: “An alien woman whose husband was a Dutch national at the celebration of the marriage, shall acquire Dutch nationality by giving notice of her wish to do so to the authority referred to in Art. 12a, if on the day of notice the marriage still subsists and the husband still has Dutch nationality.”
33. 309 UNTS p. 65; Trb. 1965 No. 218.
34. Cf. supra n. 29.
35. Cf. supra n. 30.
36. As she was in danger of being expelled, K. applied to the District Court of The Hague for an interim injunction prohibiting expulsion until a decision had been made on her application for review and hei application under Art. 43 of the Aliens Act. The President considered that the application under art. 32 had little chance of success. His interpretation of Article 8 was similar to that of the Supreme Court (infra). He dismissed the application (Judgment of 31 August 1982. Gids Vreemdelingenrecht No. F-107, Rechtspraak Vreemdelingenrecht (1982) No. 47, with a note by C.A. Groenendijk).
37. Cf. Ko Swan Sik, op.cit. n. 28 pp. 77–78.
38. Art. 1: “Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.”
39. Art. 3(1): “Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.”
40. A statistical survey of the decisions involving admittance of aliens of the Judicial Division of the Council of State and the ordinary courts during 1982–1983 is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1983 (Bijl. Hand. II 1983/1984 — 18100 VI No. 2 pp. 58–9).
41. With a note by A.H.J. Swart.
42. With a note by A.H.J. Swart.
43. With comments by A. Kruyt. Discussed by Loeb, R.W.L. in Inleiding Vreemdelingenrecht (Introduction to Aliens Law), Nijmegen: Ars Aequi, 1983, pp. 127, 129 and 285.Google Scholar
44. Art. 6(2): “Unless especially so instructed by Our Minister officials responsible for guarding the frontiers shall not refuse admittance to the Netheilands, to aliens who claim that refusal would compel them to go immediately to a country where they have well-founded reasons to fear persecution on account of their religious or political belief or their nationality, or on account of their membership of a particular race or social group.” Cf. Ko Swan, Sik, “The Netherlands Law on Aliens”, 1 NYIL (1970) p. 256.Google Scholar
45. Art. 26, Aliens Act: “In the interests of public peace, public order or national security, the following persons may be taken into custody: (a) aliens whose expulsion has been ordered, (b)… (c) aliens who are not allowed to stay in the Netherlands under any of the provisions of Articles 8 to 10, pending the decision on their request for a residence permit, a permanent residence permit, or admittance as a refugee.” Cf. A.H.J. Swart, op.cit. n. 30 p. 100.
46. Art. 7, Aliens Act: “(1) Aliens who are refused admittance to the Netherlands are obliged to leave the country, immediately, subject to due observance of the relevant instructions given by an official responsible for guarding the frontiers. (2) Aliens who are refused admittance to the Netherlands, and who entered it on board a ship or aircraft operated by a transport undertaking, may be removed by placement on board a ship or aircraft operated by the same transport undertaking. If this cannot be done within a reasonable time, the costs of removal from the Netherlands may be recovered from this transport undertaking. (3) Further rules on the application of the previous paragraph will be given by an Order-In-Council”.
47. On 3 December 1981, the State Secretary for Justice dismissed the request and ordered expulsion. From that day onwards, the applicant was detained under Article 26(1)(a) of the Aliens Act.
48. Judgment of 15 December 1981.
49. Judgment of 31 December 1981, Rechtspraak Vreemdelingenrecht (1981) No. 76, with a note by the Editors.
50. The Public Prosecutor noted that the State Secretary had, in view of Art. 5(1) of the European Convention on Human Rights, applied the provisions of Article 26 of the Aliens Act in cases such as the present one since the judgment of the District Court of Haarlem of 25 April 1980, cf. 13 NYIL (1982) p. 326 n. 13.
51. The Advocate-General too rejected in his conclusion the fiction that a refugee would not actually be in the Netherlands in the situation mentioned above. Similarly, District Court of Haarlem, 23 December 1982, KG (1983) No. 51.
52. Trb. 1975 No. 133. Art. 5: “(1) If any person is granted permission to reside in the territory of the other Contracting Party under the provisions of one of the Arts. 2–4, this Contracting Party shall also grant peimission to reside to members of the family of the peison concerned, if the person concerned can produce evidence that adequate housing is available. (2) ‘Members of the family’ include: the spouse; a person with whom the person concerned shares a permanent and exclusive relationship; minors, actually belonging to the household of the persons, over whom one of the parents has authority; other members of the family who actually belong to the household of the person concerned and who are dependent upon him.”
53. Art. 6: “(1) Each Contracting Party grants permission to reside in its territory foi educational purposes to any person who can produce evidence to show that he has registered with an educational institution and that the costs of education and subsistence during the period concerned are covered;…”
54. On 25 November 1975, his sister and brother-in-law had retained Dutch nationality under the Netherlands-Surinam Nationality Agreement of 25 November 1975. The Judicial Division repeated in this decision that, although the Residence and Establishment Agreement did not, in principle, provide for family reunion between Surinamese and Dutch nationals, it should nonetheless be deemed applicable to these cases. Cf. 10 NYIL (1979) p. 451.
55. Nor was Art. 5 held applicable by the Court to a case where the relationship with the person referred to in Art. 5(1) was established only after this person had come to live in the Netherlands, since Art. 5 was intended to apply to cases where an existing family union had been broken up as a result of departure to the other country, as referred to in Arts. 2–4. Thus, the Article was intended to make it easier for relatives staying behind to rejoin their family in the Netherlands, as confirmed in the Netherlands Government's explanatory note to the Second Chamber (No. 24048). The Supreme Court considered that this had in all likelihood been the intention of both Contracting Parties. A different interpretation would attribute to the provision a scope for which insufficient support could be found in the Agreement. (Judgment of 12 November 1982 in K.S. and P.R.A. v. the State of the Netherlands, Gids Vreemdelingenrecht No. F-113, Rechtspraak Vreemdelingenrecht (1982) No. 45 with a note by A.H.J. Swart).
56. Gids Vreemdelingenrecht No. D 11–30.
57. In this judgment the European Court gave a negative answer to the preliminary question submitted by the Supreme Court of the Netherlands whether Art. 10 of Regulation 1612/68 prohibited a Member-State from refusing admittance to one of the family members mentioned in Art. 10(1) of a person employed in the territory of the Member-State in cases were the applicant wishes to settle there with the person so employed if the latter has the nationality of the State where he is employed and the applicant has a different (Surinamese) nationality. (Gids Vreemdelingenrecht No. D 11–40, Rechtspraak Vreemdelingenrecht (1982) No. 113, with a note by C.A. Groenendijk, NJ (1983) No. 350). In the judgment with regard to which the Supreme Court requested the European Court for a preliminary ruling, the Supreme Court further stated that the right laid down in Article 8 of the European Convention on Human Rights did not mean that a mother of foreign (Surinamese) nationality wishing to live with a daughter of full age in the Netherlands qualified for admittance to the Netherlands for that purpose, even if she had not lived with her daugher before the latter settled in the Netherlands. This was not altered by the fact that it would be normal in the cultural pattern of the persons concerned for a mother to live with her married daughter. (Judgment of 15 January 1982, RvdW (1982) No. 34, Gids Vreemdelingenrecht No. D 11 - 35, Rechtspraak Vreemdelingenrecht (1982) No. 20 with a note by P. Boeles, NJ (1982) No. 504, with a note by E.A. Alkema).
58. With a note by A.H.J. Swart. Summarized in NJB (1983) No. 79 and DD (1983) No. 360.
59. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 8 reads: “(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 freedoms of others.”
60. Art. 17(2): “In respect of aliens who are not granted permission to reside in the Netherlands for an indefinite period, an Order-in-Council may provide for an obligation (a) to report within a specified period after entry into the Netherlands; (b) to report periodically.”
61. Art. 60: “Persons providing overnight accomodation to an alien who they know, or may reasonably suspect, is not or is no longer allowed to stay in the Netherlands under provisions established in or by virtue of the law, shall be obliged to notify this at once to the head of the local police of the municipality in which they reside.”
62. Judgment of 8 July 1982.
63. The Local Court of Tilburg, by contrast, found Article 60 of the Aliens Decree to be incompatible with the right laid down in Art. 8 of the European Convention (Judgment of 25 February 1981; Rechtspraak Vreemdelingenrecht (1981) No. 84). The District Court of Breda reversed this decision on 14 April 1982, ruling that Art. 60 was not incompatible with Art. 8. In cassation, a procedural error prevented the Supreme Court from deciding this question. (Judgment of 22 March 1983, discussed by Jansen, W. in Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1983) No. D 50).Google Scholar
64. With a note by H.P. Vonhögen.
65. With a note by A.H.J. Swart.
66. Note by A.H.J. Swart.
67. Under Art. 34(2) of the Aliens Act, the request is deemed to have been refused in such a situation. The Advisory Committee on Aliens had made recommendations in this case, and these constituted an important factor in the reasoning of the Division. Cf., for the Advisory Committee, A.H.J. Swart, op.cit. n. 30 pp. 101–102.
68. An expert who has carried out cultural and anthropological research in the Middle-East and has made a special study of the social and political organisation of the Kurds.
69. The Yearbook also played a part in S.A.S.P. v. State Secretary for Justice. The State Secretary had refused the request of P., a Chilean national, for admittance as a refugee, (B-status was granted). The Judicial Division reversed the decision on the grounds that the State Secretary had failed to provide an adequate explanation of why the repressive measures taken by the Chilean authorities against P. even after 1977 (when he was no longer politically active) should not be regarded as persecution, and why neither the politcal and human rights situation in Chile (as described in Report No. A/35/522 of the Special Rapporteur of the UN Commission on Human Rights 1980/81 and in the Amnesty International Yearbook 1980/81) nor P.'s specific personality constituted a well-founded reason to fear persecution (Judgment of 12 July 1982, Gids Vreemdelingenrecht No. D 12–75, Rechtspraak Vreemdelingenrecht (1982) No. 7, AROB TB/S jur. III No. 357, with a note by H.P. Vonhögen).
70. Cf. for previous decisions involving the “domestic flight alternative”, 14 NYIL (1983) pp. 389–391 and n. 44.Google Scholar
71. Note by A.H.J. Swart.
72. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76. 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.”
73. 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 … or membership of a particular group, may be admitted as refugees by Our Minister”.
74. Unlike the Judicial Division, the Representative in the Netherlands of the UN High Commissioner for Refugees considered that there was no question of well-founded fear of persecution. Persecution within the meaning of Art. 1(A) of the Convention relating to the Status of Refugees could not be said to exist unless a serious violation of human rights was involved. According to the Head Office of the High Commissioner in Geneva, members of the Divine Light Mission were subjected to arbitrary treatment, but there was no question of persecution. Nor was there any reference to persecution in the “Report on the situation of human rights in Argentina”, of 11 April 1980, drawn up by the Inter-American Commission on Human Rights of the OAS.
75. Note by R. Fernhout under AB (1983) No. 585.
75a. Note by A.H.J. Swatt
76. Art. 217 provides that any person who is acting in contravention of the rules on travel to and residence in foreign countries, and who is permanently resident abroad and causing serious injury to the interests of Hungary, is liable to a term of imprisonment not exceeding three years as well as confiscation of his property by the State.
77. For Art. 1(A) see supra n. 72.
78. Since S.C. had been in the Netherlands for less than a year, the first barrier to be overcome was Art. 34 (1)(b) of the Aliens Act. The Judicial Division tested this provision against Art. 16(2) of the Refugees Convention in the same way as in A.J. v. State-Secretary of Justice (Judgment of 13 July 1979, see 12 NYIL (1981) pp. 322–324).
79. In J.S. v. State Secretary for Justice, the Judicial Division of the Council of State did not take into account a conviction in Hungary for “Republikflucht”, because this fact did not become known until after the State Secretary had refused the application for admittance as a refugee (Judgment of 21 October 1982, Rechtspraak Vreemdelingenrecht (1982) No. 2 with a note by A.J. Swart, Gids Vreemdelingenrecht No. D 12–73). In M.D. v. State Secretary for Justice, a final conviction by a Czechoslovak court to two years imprisonment and confiscation of property for “Republikflucht” did play a part in the giant of refugee status. (Judgment of 11 March 1982, AB (1982) No. 369, Rechtspraak Vreemdelingenrecht (1982) No. 1 with a note by A.H.J. Swart, Gids Vreemdelingenrecht No. D 12–65. Discussed by Hoeksma, J.A. in Tussen vrees en vervolging. Een inleiding in het vluchtelingenrecht (Between fear and persecution. An introduction to the law of refugees), Assen: Van Gorcum, 1982, pp. 259–261Google Scholar and R.W.L. Loeb, op.cit. n. 43 pp. 156–157). Cf. also 14 NYIL (1983) pp. 391–394 and n. 51.
80. Summaries of Supreme Court decisions in 1983 on extradition can be found in Delikt en Delinkwent, with a table of the Articles of the Extradition Act and the extradition treaties applied. The most important are also published in the Nederlandse Jurisprudentie. with an annual subject index (the relevant entry here being: Uitlevering [Extradition]).
81. With a note by Th. W. van Veen. Summarized in DD (1983) No. 7.
82. Art. 6(3)(c): “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 not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;…”
83. ILM (1967) p. 360; Trb. 1969 No. 100. Art. 2(3)(a): “Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;..” Art. 14(3)(d): “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (d) to be tried in his presence, and to defend himself in person or through legal assistance of hiw own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;…”
84. In this letter, which was a reply to a relevant question by Leyten, the Advocate-General, the King's Attorney stated that the appeal lodged by J. was no bar to the execution of the judgment. Leyten considered this was highly questionable, but concluded that at least the requirement laid down in Art. 11(2)(a) of the applicable Benelux extradition treaty that the judgment be enforceable had been fulfilled.
85. The Supreme Court shared Leyten's view and proceeded on the assumption that the relevant Articles of both treaties were applicable to these extradition proceedings which took place under the Benelux extradition treaty. In its judgment of 9 October 1973 (5 NYIL 1984 pp. 313–314), the Court took a different view.
The Netherlands made a reservation to Article 1 of the European extradition treaty to the effect that it reserved the right to refuse extradition for the purpose of executing a judgment pronounced by default if the requirements of Art. 6(3)(c) of the European Convention on Human Rights had not been fulfilled. Cf. 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. 221–222Google Scholar. Extradition requests on similar grounds were tested against the reservation and Art. 6(3)(c) itself in A.M.P. v. Public Prosecutor, and D.d.L. v. Public Prosecutor in which the Supreme Court delivered judgment on 2 November 1982 (summarized in DD (1983) Nos. 92 and 95).
86. In its judgment of 12 April 1983 in H.H.K. v. Public Prosecutor, the Supreme Court — applying the reservation to Art. 1 of the European extradition treaty see supra n. 85 — considered that the right laid down in Art. 6(3)(c) of the European Human Rights Convention was also inapplicable to a subsequent decision reversing the suspended prison sentence given by default (NJ (1983) No. 590, DD (1983) No. 328).
87. Summarized in DD (1983) No. 144.
88. In his conclusion, the Attorney General therefore advised counsel to submit the new evidence to the Minister of Justice or to apply for an interim injunction should D. indeed be extradited.
89. 359 UNTS p. 273; Trb. 1965 No. 9. Art. 14(1) reads:
“1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
(a) When the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
(b) when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it”.
90. With a note by A.H.J. Swart.
91. With a note by A.H.J. Swart.
92. Bijl. Hand. II 1978/1979 – 15649 No. 2 p. 14.
93. Trb. 1969 No. 87. Art. 17: “Moroccan workers employed and established in the Netherlands may have their families join them as from the moment when they have been employed for two years, provided that they have at their disposal accomodation for their families and themselves which the Netherlands authorities consider as normal. The family consists of the wife and minor children dependent “upon them”.
94. For Art. 25, see under “Held”.
95. Art. 23: “(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”
96. In F.B. and A.b.M.b.H.I. v. the State of the Netherlands and J.J. Valken, the question arose of whether the Convention's rules on family reunion could be invoked by a Moroccan family, the husband having come to the Netherlands in 1966, i.e. before the entry into force of the Convention on 19 May 1969. The President of Amsterdam District Court considered that it could not be invoked and dismissed the husband's application on the ground that Art. 25 “as appears from its terms and tenor, has no direct effect; nor has it been alleged or shown that the Netherlands Government has implemented the Article.” (Judgment of 4 February 1982, Rechtspraak Vreemdelingenrecht (1982) No. 42, with a note by C.A. Groenendijk).
97. In this part of the appeal particular reference was made to the International Covenant on Civil and Political Rights.
98. With a note by A. Kors.
99. Note by G.L. Coolen.
100. With a note by J.C. van der Hoek.
101. The Central Council referred to Art. 7 of the Constitution, Art. 10 of the European Convention on Human Rights and Art. 19 of the International Covenant on Civil and Political Rights.
102. According to the Central Council such a conclusion could be based on the fact that Stelling had said he was not prepared to carry out unconditionally all instructions concerning the use of nuclear weapons.
103. 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 the Yearbook, the Yearbook has, since Volume XII, not included complete documentation of all decisions. Only cases which are interesting from the viewpoint of general international law will henceforth be mentioned. For a complete overview, reference should be made to the annual surveys in the Yearbook of 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 International Covenants).
104. With a note by P.F. van der Heijden.
105. With a note by J.H. Smits under AB (1983) No. 219. Summarized in NJB (1983) p. 548.
106. With a note by N.J. Haverkamp under RSV (1983) No. 114.
107. See infra n. 113
108. 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juvenils or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
109. Judgment of 16 July 1971, Publ. ECHR, Series A, Vol. 13 (1971) p. 5.
110. Judgment of 28 June 1978, Publ. ECHR, Series A, Vol. 27 (1978) p. 4; NJ (1980) No. 54.
111. NJ (1981) No. 149.
112. 14 D & R (1979) p. 252.
113. This appeal procedure, referred to as the permanent expert' procedure, is provided for in Arts. 131–144 of the Appeals Act. The procedure is intended to ensure the speedy and efficient settlement of cases; in practice, this amounts to a decision of the President of the Council of Appeal, who nearly always adopts the recommendation of the permanent expert. After examining the employee, the permanent expert — mostly a physician — sends his assessment to the President, who then takes a decision (Art. 141, Appeals Act). Employees who challenge finding that they are fit for work have no further remedy after the examination by the permanent expert; there is no opportunity for them to be heard by the President. See P.F. van der Heijden in his note on the judgment in the NJCM-Bulletin.
114. 213 UNTS p. 262; Trb. 1952 No. 80. Art. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
115. NJCM-Bulletin (1982) p. 15 with a note by P.F. van der Heijden. Discussed by Brenninkmeijer, A.F.M. in “De vaste-deskundige procedure” (The permanent expert procedure), Bestuurswetenschappen (1982) pp. 170–182.Google Scholar
116. In its judgment on the same day in the similar case of J. v. Het Bestuur van de Bedrijfsvereniging voor de Metaalindustrie en de Electiotechnische Industrie, the Central Council further considered that it could not be deduced from Art. 6 that the manner in which the permanent expert came to make his recommendation affected the public hearing of the case. Nor could it be maintained that the decision had not been made by an independent tribunal established by law, since the provision in the Convention referred to the requirement that the tribunal be independent of the parties. (AB (1983) No. 219, with a note by J.H. Smits, RSV (1983) No. 113, with a note by N.J. Haverkamp under RSV (1983) No. 114, summarized in NJB (1983) p. 549).
117. See supra n. 103.
118. With a note by C.A. Groenendijk.
119. Cf. for these certificates of identity: 1982 Aliens Circular, Sections B 3 and C 8; see 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, 1980), pp. 251–252.Google Scholar
120. According to Art. 3(2)(a), a “declaration” shall be issued by the Minister for Social Affairs to aliens who have been engaged in legitimate gainful employment in the Netherlands for an uninterrupted period of three years, provided they do not subsequently establish their main residence outside the Netherlands. Aliens possessing such a declaration do not need an employment permit within the meaning of the Act, cf. 10 NYIL (1979) pp. 431–432 and 11 NYIL (1980) p. 283. It appears from the 1982 Aliens Circular, Section B 6.8 that where this Article refers to diplomatic personnel, it contemplates the situation subsequent to the termination of their work at the diplomatic mission. Cf. also 13 NYIL (1982) pp. 369–370.
121. This interpretation had consequences for another case brought by P.Y. before the President of the Judicial Division, in which, pending appeal to the Judicial Division, he had requested a provisional order against the refusal to register him as a person seeking employment. Referring to the judgment mentioned above, the President repeated that an employment permit was required for work that was not connected with the position mentioned in the certificate of identity. An application for such a permit was deemed not to have been made if the alien had no residence permit and had not applied for one. Since this was not, of course, the case here, P.Y. would not be granted an employment permit either, and this, in turn, justified the refusal to register him as a person seeking employment (Judgment of 12 April 1983, WRvS (1983) No. R 2179).
122. Art. 138: “(1) Anyone who unlawfully enters a house, or the enclosed area or premises occupied by another person,…is liable to a term of imprisonment not exceeding six months or a fine not exceeding Df1. 600 … (3) The penalties determined in para. 1 may be increased by a third, if two or more persons commit the offence in conjunction.”
123. Art. 282: “(1) Anyone who wilfully deprives, or has deprived another of his liberty shall be liable to a term of imprisonment not exceeding seven years.”
124. Art. 350: “(1) Anyone who wilfully and unlawfully smashes, damages, looses or makes unusable any property belonging in whole or in part to another, is liable to a term of imprisonment not exceeding two years or a fine not exceeding Df1. 600.”
125. 10 NYIL (1979) pp. 495–496.
126. 199 UNTS p. 67: Trb. 1951 No. 114. Art. X(1) reads: “Where the legal incidence of any form of taxation in the receiving State depends upon residence or domicile, periods during which a member of a force or civilian component is in the territory of that State by reason solely of his being a member of such force or civilian component shall not be considered as periods of residence therein, or as creating a change of residence or domicile, for the purposes of such taxation. Members of a force or civilian component shall be exempt from taxation in the receiving State on the salary and emoluments paid to them as such members by the sending State or on any tangible movable property the presence of which in the receiving State is due solely to their temporary presence there.”
127. In his conclusion prior to the judgment, the Attorney-General concluded that Art. X(1) had direct effect (reproduced in BNB).
128. Art. X(2) reads: “Nothing in this Article shall prevent taxation of a member of a force or civilian component with respect to any profitable enterprise, other than his employment as such member, in which he may engage in the receiving State, and, except as regards his salary and emoluments and the tangible movable property referred to in paragraph 1, nothing in this Article shall prevent taxation to which, even if regarded as having his residence or domicile outside the territory of the receiving State, such a member is liable under the law of that State.”
129. For a different view on immovable property tax, cf. the Court of Appeal of Den Bosch, 2 September 1977, 10 NYIL (1979) pp. 497–498.
130. Trb. 1975 No. 133. Art. 3: “Each Contracting Party grants permission to reside in its territory for the purposes of paid employment to any person to whom a job and appropriate housing is available in this territory.”
131. This is probably a reference to the provisions of Art. 2 of the Netherlands-Surinam Protocol on acquired rights annexed to the Agreement concerning the entry and residence of mutual nationals, of 23 January 1981, Trb. 1981 No. 35. Art. 2 reads: “Those who have applied for a residence permit or for permission for temporary residence prior to 25 November 1980, and who are shown to have fulfilled prior to this date the relevant requirements laid down in the Agreement referred to in Article 1, are eligible for a residence permit and enjoy the rights arising from the Agreement.” The Agreement and Protocol became operative on 1 December 1982, Trb. 1982. No. 171, and were applied provisionally as from 23 January 1981. In the period from 25 November 1980 to 23 January 1981, applicants relied on what was known as the Telex Notice of 25 November 1980 issued by the Minister of Justice, cf. 13 NYIL (1982) p. 325, which set out an arrangement corresponding to that laid down in the Protocol and Agreement. Remarkably, the Judicial Division of the Council of State still based its reasoning on this Telex Notice in its judgment of 20 September 1982 in H.N.C. v. State Secretary for Justice (Rechtspraak Vreemdelingenrecht (1982) No. 54.).
132. This requirement is laid down in Art. 3 of the Protocol, which reads: “A Surinamese national who is in the Netherlands on 24 November 1980 and who, before 25 November 1980, has acquired a legal right to reside, shall also be permitted to effectuate this right after 24 November 1980, provided he applied for a residence permit and, where necessary, an employment permit, prior to 25 February 1981. He shall be entitled to, the rights arising from Article 1 of the Agreement.”
133. Art. 13: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom 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 the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
134. For Arts. 8–10, cf. A.H.J. Swart, op.cit. n. 30 pp. 85–89 and Ko Swan Sik, op.cit. n. 44 pp. 253–257.
135. Under Art. 8(1), applications should be assessed in the light of the general employment situation.
136. ‘The transitional regulations’ referred to here may, as stated, be found in the Protocol on acquired rights. The 1982 AliensCircular, section B10, therefore speaksin this contextof the regulations on ‘acquired rights’ (p. 9). The term ‘transitional regulations’ is reserved for the regulations laid down in Annex I to the Agreement itself, which reads: “Surinamese nationals who are in the Netherlands prior to 25 November 1980 and who possess a valid visa, may apply for a residence permit and an employment permit during the validity of the visa, provided that they do so no later than 24 February 1981 and that they are found to have adequate means of support on the basis of actual employment and adequate housing.” – These transitional regulations apply to Surinamese employees who fulfilled the relevant requirements after 24 November 1980 but before 25 February 1981, provided they had valid visas. These regulations did not therefore apply to the present case, since the visas expired at 24:00 p.m. on 24 November 1980, (i.e. one month after arrival in the Netherlands). Consequently, when the appellants secured actual employment on 2 January 1981, their visas had expired. Cf. as to the difference between the two sets of regulations, R.W.L. Loeb, op.cit. n. 43 pp. 198–202 and J.W. Rekers, Gids Vreemdelingenrecht, CIX, pp. 12–16.
137. The date in question is 25 February 1981. In T.B. & v.o.f. Oostendorp v. Minister for Social Affairs the Minister even undertook not to attach any weight to the fact that the request had been made only after 25 February 1981; cf. Judgment of the Council of State, Acting President of the Judicial Division, 23 April 1982, Rechtspraak Vreemdelingenrecht (1982) No. 92 with a note by C.A. Groenendijk.
138. Note by G.E. Mulder under NJ (1982) No. 532. Summarized in DD (1981) No. 417.
139. Art. 3: “(1) Possessing or owning, buying, selling or exporting animals which have been administered oestrogenic … substances is prohibited.”
140. Art. 2: “The Dutch criminal law shall apply to any person who commits an offence in the Netherlands.”
141. Act of 30 September 1954, Stb. 1954 No. 445. Art. 6: “Any Regulations established under Article 93(1) of the Industrial Organization Act may provide that the rules prescribed in or by virtue of such Regulations may also bind natural and legal persons other than those referred to in Article 102(1) of the Act to the extent that they do acts which are done in the ordinary course of business in enterprises for which the Commodity Board was instituted.”
142. Cf. for the demarcation of the frontier, Trb. 1974 No. 188 and, for the history of the enclave, Verzijl, J.H.W., International Law in Historical Perspective, Part III, State Territory, Leyden Sijthoff 1970, pp. 3–4.Google Scholar
143. DES is a hormone preparation which has an oestrogenic effect.
144. The judgment of the Supreme Court in Pali's appeal was published in NJ (1982) No. 532.
145. Art. 2: “The Commodity Board is instituted for enterprises concerned with stockbreeding; …”
146. Art. 4(3): “Regulations relating to the subjects listed in section (1) do not relate to supply, transit and triangular trade.”
147. The complex situation concerning the line of the frontier in the Baarle-Hertog enclave also played a part in the case against H.J.O. During a search of O.'s house by Dutch police a weapon was found in a mirror wardrobe in the part of the premises situated on Dutch territory, namely Hoogbraak 1, Baarle-Nassau. Belgian police carried out a simultaneous search in the Belgian part of the premises at Hoogbraak 6, Baarle-Hertog … The revolver was found by a Belgian detective who handed it then and there to the Dutch police. The District Court of Breda convicted O. of unlawful possession of weapons. O.'s assumption that he was keeping the revolver on Belgian territory was considered irrelevant by the Court, since the possession of such a weapon was also unlawful in Belgium. Moreover the Court held that O. could not in any event have relied on this defence since he should have ascertained the course of the local Belgo-Dutch frontier. (Judgment of 19 March 1980, Institute's Collection No. 1903). The Court of Appeal of Den Bosch reversed this judgment on 2 February 1982 on the grounds that it had not been proved that O. was in possession of the revolver. The revolver had been kept out of circulation.
148. ILM (1970) p. 45; Trb. 1970 No. 196. Art. DC: “(1) Where an incident has caused pollution damage in the territory including the territorial sea of one oi more Contracting States, or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant. (2) Each Contracting State shall ensure that its Courts possesss the necessary jurisdiction to entertain such actions for compensation. (3) After the fund has been constituted in accordance with Article V, the Courts of the State in which the fund is constituted shall be exclusively competent to determine all matters relating to the apportionment and distribution of the fund.”
149. Art. II: “This Convention shall apply exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State and to preventive measures taken to prevent or minimize such damage.
150. Art. VII (8): “Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the owner's liability for pollution damage. In such case the defendant may, irrespective of the actual fault or privity of the owner, avail himself of the limits of liability prescribed in Article V, paragraph 1.…”
151. Bijl. Hand. II 1972/1973 — 12.288 No. 3 p. 8.
152. Stb. 1975 No. 32 (Cf. 7 NYIL (1976) p. 372). Amended, in particular with regard to the relative jurisdiction of Dutch courts, by the Act of 26 February 1981, Stb. 1981 No. 64 (Cf. 13 NYIL (1982) p. 312).
153. For the provisions of Art. 2, see under “Held”.
154. Summarized in WRvS (1983) No. G 42.
155. Stb. 1975 No. 352; 7 NYIL (1976) p. 372.
156. Act of 9 March 1962. Stb. 1962 No. 88. Art. 60a: “Pending the examination, a decision may, at the request of the interested person, be suspended in whole or in part, on the ground that execution of the decision would result in harm disproportionate to the interest served by immediate execution of the decision. A provisional measure may also be made at his request in order to prevent such harm.”
157. The President also expressed this view in an earlier case when he dismissed the application of the Stichting Werkgroep Noordzee under Article 60a to execution of the order granting Orphahell B.V.'s exemption for the discharge of wastes into the North Sea (Judgment of 29 April 1982, WRvS (1982) No. G 207). Similarly, the Stichting Werkgroep Noordzee had no success with its request to execution of the order granting the exemption of Pigment Chemie of Duisburg on the grounds that the discharges caused an increase in fish disease in the German Bight and in the waters over the Dutch part of the Continental Shelf. The President found that the plaintiffs had failed to establish any such connection, but held that the increase of over 50% in the amount of titanium and iron in the discharges permitted under the exemption was in contravention of the object of Art. 1 of the EEC Council Directive of 20 February 1978 (Judgment of 20 July 1982, WRvS (1982) No. G 347). He ordered a reduction in the percentages, but later reversed this decision in his judgment of 2 September 1982 in which he accepted Pigment Chemie's argument that he had applied the test laid down in the Directive and had not ascertained whether the discharges were compatible with the national schemes referred to in Article 9 of the Directive. The President considered, however, that since no such national schemes had been introduced, the Directive could be taken as providing, the basis of the policy to be followed. Nevertheless he cancelled the reductions because the Crown was due to give a ruling on the matter in the near future (WRvS (1982) No. G 431).
158. Art. 4: “It is prohibited to discharge or take aboard a vessel or aircraft with the aim of discharging, or deliver with the aim of discharging, any waste or pollutant or noxious substance other than those covered by Art. 3(1) unless exemption is granted”.
159. ILM (1972) p. 262; Trb. 1972 No. 62.
160. Reproduced (in part) in AA (1984) p. 153, with a note by H.U. Jessurun d'Oliveira and in NIPR (1984) No. 120. Discussed by Schmeink, A.H. in “Bericht van het Rijnfront” [Message from the Rhinefront], Waterschapsbelangen (1984) No. 1, pp. 22–5Google Scholar and by Lammers, J.G. in Pollution of International Watercourses (Nijhoff, The Hague, 1984) pp. 201–5.Google Scholar
161. Tijdschrift voor Milieu en Recht (1983) pp. 270–271 with a note by Jessurun d'Oliveira, H.U.. ZaöRV (1984) pp. 342–5Google Scholar with comment by U. Beyerlin.
162. ILM (1977) p. 265; Trb. 1977 No. 33.
163. For sources, see infra under Held.
164. See 7 NYIL (1976) pp. 344–5.
165. See 9 NYIL (1978) pp. 331–2.
166. See 11 NYIL (1980) pp. 326–33.
167. For the purposes of the experts' investigation, the District Court re-defined the questions listed in the Judgment of 8 January 1979 (see 11 NYIL (1980) p. 333) as follows: “The main question put to the experts is: What has been, since 4 October 1974, the average monthly or in any case quarterly share in the chloride concentration in the boezem water used by Strik and Valstar and which would otherwise be used by Bier, that is attributable to the defendant's discharge of salt.
The Court proceeds on the assumption that this question will inevitably entail the following subsidiary questions:
A. 1. – what has been, since 4 October 1974, the average monthly chloride content of the boezem water used by Strik and Valstar, and of the boezem water that could be used by Bier on the one hand, and the chloride content of the Rhine on the other hand?
2. – what has been, since the same date, the average monthly and in any case quarterly share of the Rhine waters in the boezem water referred to?
3. – what has been, since the same date, the average montly, or in any case quarterly share of chlorides discharged by the defendant in the chloride concentration's in the Rhine waters?
4. – what has been, since the same date, the average monthly or in any case quarterly effect of zoute tong and zoute kwel, and any other salinizing factors, on the chloride content of the boezem water?
5. – Why is it necessary for there to be an intake of external waters into the boezem water of Delftland and Schieland and what is the frequency and extent of such intake?
The Court further wishes to receive information concerning:
B. 1. – the maximum chloride concentration admissible in the water used for irrigating each type of crop grown by the plaintiffs;
2. – any other substances in the boezem water used or to be used for irrigation which are injurious to crops;
3. – the extent to which chloride content of the soil (resulting from accumulation of chlorides introduced by irrigation water or otherwise) may or does affect plant growth, both generally and in particular for the types of crops grown by the plaintiffs in glass-houses as distinct from the effect of the chloride content of the local boezem water, and
4. – if there is such an effect, the kind of effect it is in the present case.”
168. By this time, MDPA had requested the Institut Batelle in Geneva to carry out an investigation. The reports produced by Batelle were then introduced in the proceedings. The Court, however, found no cause on the basis of these reports to request any further expert report.
169. Cf. 11 NYIL (1980) p. 330.
170. The conclusion of the experts with regard to Main Question A reads as follows: “The defendant's estimated share in the chloride amounts taken in by Strik and Valstai using boezem water is given on a monthly and a quarterly basis in Table VI, p. 5.4–14 and 15 of this report for the years 1975 to 1978. The defendant's overall share for this period is estimated at 17% The defendant's estimated share in the chloride amounts which would be taken in by Bier if boezem water was used is given for the same period in Table II, p.5.5–6 and 7 of this report. The defendant's overall share for this period is estimated at 8.7%.” At 5.5 the Court announced that it adopted the finding's of the experts.
171. See 11 NYIL (1980) p. 329.
172. The dependence, in their turn, of the Hoogheemraadschappen Schieland, Delfland and Rijnland District Water Control Boards on the boezem waters is described by the experts in reply to Question A5, as follows:
“Schieland derives its inlet water from the Nieuwe Maas at Rotterdam–Admiraliteitskade. In very dry years sea water reaches this point and the inlet is transferred to Snelle Sluis (near Gouda), where water from the Hollandse IJssel can be taken in. This occurred especially during the dry summer of 1976. Delfland derives its intake water from Rijnland at Leidschendam. Direct inlet into Delfland from the Nieuwe Waterweg is impossible, because this river is too salty. Rijnland, in turn, receives large amounts of water from the Hollandse IJssel at Gouda and smaller amounts from the Oude Rijn at Bodegraven; part of these waters are transported to Delfland. The inlet of water is necessary for the following reasons:
i. The boezem waters have to be maintained at a prescribed level; in dry periods (mainly in summer) this can only be achieved by inlet from outside. If the boezem waters fall considerably below this level, constructions will be damaged, agricultural lands will suffer from drought and shipping will be hampered. Such a fall in level is especially caused by inlet of water from the boezem into polders, which have to maintain their own water levels for the same reasons (except shipping). Moreover, large quantities of water are used in glasshouses, particularly in Delfland.
ii. The boezem waters have to be flushed to prevent the contamination which would occur in stagnant water. Amongst the contaminants are salts from deep polders, which pump brackish seepage water into the boezem, even in dry times. In Delfland, also water enters through sluices and shiplocks along the Nieuwe Waterweg: this water must be prevented to penetrate further into the boezem by a constant counter-current. The efficiency of flushing will decrease considerably if the inlet water is of poor quality.
The inlet is most frequent in summer (May-October)andis almost continuous during dry spells. In winter (Nov.-April) only small quantities are admitted or none at all. The monthly amounts are listed in Documents L3 (Annex 4.2.) (Rijnland), 03 (Annex 4.3.) (Delfland) and R4 (Annex 4.12) (Schieland). The policies of these Hoogheemraadschappen are aimed at maintaining the boezem level and to obtain the best quality of the boezem water, in that order of priority.”
173. ILM (1972) p. 291.
174. See 11 NYIL (1980) p. 332.
175. The Rotterdam Court used the French text.
176. See 11 NYIL (1980) p. 327.
177. MDPA has appealed against the decision to the Court of Appeal of The Hague.
178. 82 UNTS p. 279; Stb. 1946 No. G 5. Art. 6: “The Tribunal established by the Agreement referred to in Art. 1 thereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a)…; (b)…; (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated …”.
179. Cf. Supreme Court, 22 May 1979, 11 NYIL (1980) pp. 334–336.
180. T., who lived in Austria, was arrested in Heerlen while visiting the Special Pensions Board, where he had arranged to have an interview about a resistance pension granted to him.
181. For Art. 6(1) see supra n. 108.
182. Trb. 1974 No. 6; Benelux-Basisteksten, Vol. IV-II, Art. 4(1): “The Court which has imposed a penalty, may, at the request of the convicted person, order its cancellation, suspend payments for a term to be determined by the Court, or reduce the penalty if it becomes impossible permanently or temporarily, or totally or partially for the convicted person to comply with the principal sentence.”
183. Trb. 1965 No. 71; Benelux-Basisteksten, Vol. IV-I, Art. 1(2): “The task of the Court will be to promote uniformity in the application of the rules of law common to Belgium, Luxembourg and the Netherlands which are designated – either by Convention …”
The judgment is reproduced in RvdW (1979) No. 88 and in Benelux Gerechtshof, Jurisprudentie 1975–1979, Brussels, p. 213 et seq. and is discussed by Audretsch, H.A.H. in “Het Benelux Gerechtshof en het vraagstuk van de twee snelheden” (The Benelux Court and the question of the two speeds), SEW (1979) pp. 675–685Google Scholar, and by Mathy, D. in “Arrêt du 25 mai 1979 de la Cour de Justice Benelux”, RBDI (1979) pp. 539–550.Google Scholar
184. Cf. Trb. 1980 No. 40.
185. Cf., on the Benelux Court: J.W. Schneider in 4 NYIL (1973) pp. 193–235 and in “The Netherlands and Benelux” in International Law in the Netherlands, Vol. II (Alphen aan den Rijn, Dobbs Ferry, N.Y. 1979), pp. 71–115 at pp. 108–110.Google Scholar