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Netherlands judicial decisions involving questions of public international law, 1983 — 1984
Published online by Cambridge University Press: 07 July 2009
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References
1. Summarized in NIPR (1984) No. 225.
2. Art. 438a: “Property intended for public service shall not be seized”. Cf., Voskuil, C.C.A., “The international law of State immunity as reflected in the Dutch civil law of execution”, 10 NYIL (1979) pp. 251–2, 261–4 and 278–80.CrossRefGoogle Scholar
3. 22 ILM (1983) p. 752. Egypt appealed against the decision to the Paris Court of Appeal which reversed the award of the Court of Arbitration on 12 July 1984, 23 ILM (1984) p. 1048. On the same day the District Court of Amsterdam granted the request for a leave of enforcement on the award, 24 ILM (1985) p. 1040.
4. In order to ensure its claims, the defendant had previously made an application for conservatory attachment of monies which the State of the Netherlands and or, the Netherlands Investment Bank for Developing Countries owed, or would be owing, to Egypt under allocations for development aid. The District Court of The Hague refused the applicaton for attachment, considering that monies set aside for projects in Egypt were established in the State Budget by an Act of Parliament. In the Netherlands-Egypt relationship, the assets in question were, under Dutch law, intended for public service and, under Article 438a of the Code of Civil Procedure, not liable to attachment. (Judgment of 22 March 1984, Institute's Collection No. R 2298).
5. Summarized in NIPR (1985) No. 275.
6. Trb. 1961 No. 62. Art. 14: “(1) The Committee shall draw up the Agency's staff regulations; they shall include, inter alia, provisions relating to the nationality of the personnel, salary scales, disqualifications for office, professional secrecy, continuity of the service and authority to report infringements, and they shall define those posts which may not be held in plurality with any other without the special authorisation of the Director. (2) The aforesaid regulations shall be submitted to the Commission for its approval by unanimous vote.”
7. Trb. 1961 No. 62. For the text of Section 5, see under Held.
8. For the text of Article 93, see infra n. 10.
9. 9 NYIL (1978) p. 276. Discussed by Barnhoorn, L.A.N.M. in De Praktijkgids (1983) pp. 639–640.Google Scholar
10. Art. 93(1) SR: “Any dispute between the Agency and one of the persons referred to in the present Staff Regulatons involving non-observance, in substance or in form, of the provisions of the present Regulations, shall be referred to the Administrative Tribunal of the International Labour Office, in the absence of a competent national jurisdiction.”
Art. 92(1) GCE: “Any dispute between the Agency and any person to whom these Conditions of Employment apply regarding the non-observance, in substance or in form, of the provisions of the present Conditions of Employment, shall be referred to the Administrative Tribunal of the International Labour Office, in the absence of a competent national jurisdiction.”
11. The text of the judgment refers to International Labour Organisation and not to International Labour Office as appeared in both articles.
12. The original Dutch text of the District Court, combining both Articles, differs in certain aspects from the English version of both the Articles, which was provided to the T.M.C. Asser Institute by Eurocontrol, cf. supra n. 10.
13. The Court used the Dutch text.
14. Note by L.A.N.M. Barnhoorn.
15. 15 NYIL (1984) pp. 429–32.
16. These considerations are mentioned in 15 NYIL (1984), pp. 430–31, under Held, “The question of jurisdiction … in the case of international organizations such as the Tribunal”.
17. The respondent has entered an appeal in cassation.
18. Note by P. Boeles.
19. Trb. 1975 No. 132.
20. ILM (1967) p. 368; Trb. 1969 No. 99. For the text of Art. 26, see under Held.
21. Trb. 1975 No. 133. Art. 2: “Each Contracting Party grants permission to reside in its territory to any person who has means of subsistence of his own and to whom appropriate housing is available. Permission is granted for the period which may be expected to be covered by the means of subsistence. The period for which permission is granted may be extended.” Art. 3: “Each Contracting Party grants permission to reside in its territory for the purposes of paid employment to any person to whom employment and appropriate housing is available in this territory.”
22. 6 Yearbook of the European Convention on Human Rights (1963) p. 14Google Scholar; Trb. 1964 No. 15. For the text of Art. 3, see under Held.
23. The Covenant entered into force in the Netherlands on 28 March 1979, Trb. 1979 No. 65.
24. Protocol IV came into force on 23 June 1982, Trb. 1982 No. 102.
25. Cf., 8 NYIL (1977) pp. 325–328, and Ko Swan, Sik, “The Netherlands and the Law concerning Nationality”, International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, NY, 1980) p. 45 et seq.Google Scholar
26. Cf., Ko Swan Sik, op.cit. n. 25 pp. 49–50.
27. This interpretation of the relationship ‘naturalization — permission to reside’ was previously given in the Division's judgment of 15 November 1979, 12 NYIL (1981) pp. 309–11.
28. This further interpretation of the relationship ‘naturalization — permission to reside’ was given earlier in the Division's judgment of 15 July 1980, Rechtspraak Vreemdelingenrecht (1980) No. 34. See also the decision of 3 February 1983, AB (1983) No. 437, with a note by R. Fernhout.
29. A statistical survey of the decisions involving admittance of aliens of the Judicial Division of the Council of State and the ordinary courts during 1983–1984 is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1985 (Bijl.Hand. II 1984/1985 — 18600 VI pp. 69–70.
30. Mentioned in the note to Rechtspraak Vreemdelingenrecht (1983) No. 37 and by Meijers, H. in Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) p. 195.Google Scholar
31. 360 UNTS p. 130; Trb. 1955 No. 42.
32. Art. 27 reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.”
33. Cf. on these events and the subsequent applications for interlocutory injunctions to prohibit expulsion pending the decisions on their applications for residence permits, 13 NYIL (1982) pp. 354–9 especially n. 113.
34. The Division rejected first of all the State Secretary's view that the appeal should be dismissed on the grounds of Art. 34 (1)(b) of the Aliens Act in that on the day when the contested decision was made, 20 August 1981, the appellant had not yet been resident in the Netherlands for a period of one year. In so calculating this period the State Secretary referred back to the appellant's entry from Belgium on 16 January 1981. In the Division's opinion, this period should be calculated as from early 1980.
35. The Division considered this, inter alia, in M.B. v. State Secretary for Justice, 8 December 1983, Gids Vreemdelingenrecht No. D7–7 and Rechtspraak Vreemdelingenrecht (1983) No. 37, with a note by G. Caarls.
36. The plea of Art. 27 had been dismissed previously in M.D. v. State Secretary for Justice, 13 October 1983, Gids Vreemdelingenrecht No. D 13–110, where the Division considered that “even assuming that Art. 27 is a treaty provision binding on all persons within the meaning of Article 65 and 66 of the Constitution, this still does not give rise to a right for D. to be granted a residence permit in disregard of the admittance policy under Article 11(5) of the Aliens Act.”
37. The Division reached a similar conclusion in the cases mentioned in notes 35 and 36 supra.
38. In the case referred to in note 36 supra, rejection of the plea of family reunion (based on the ‘large family’ concept) was held not to be in conflict with Art. 8 of the European Convention on Human Rights, since there was no question of real family life in the sense of this Article, neither on the side of D. and his family nor on the side of D.'s parents.
39. 213 UNTS p. 221; Trb. 1951 No 154. For the text of Arts. 8 and 14, see under Held.
40. For Art. 26, see under Held.
41. Art. 17: “(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.”
42. The requirement of sufficient income was subsequently laid down in the 1982 Aliens Circular, which entered into force on 1 February 1983 (B 19.2.2.3.). As the words ‘in principle’ had been inserted in this text, B. contended that it should be possible to make exceptions. The Division established, however, that the rule had not substantially been changed by the introduction of the Aliens Circular.
43. In earlier judgments, of 1 November 1982 (Gids Vreemdelingenrecht No. G-3 and Rechtspraak Vreemdelingenrecht (1982) No. 5, with note by F.J. van der Poel), and 25 July 1983 AB (1984) No. 370), the Judicial Division of the Council of State had already reached the conclusion that the requirement of sufficient income was not in conflict with Arts. 14 and 8 of the European Convention, nor with Art. 6 of the International Covenant.
44. In principle, the requirement of sufficient income was also applied to the children of immigrants (the “second generation”) wanting to live in the Netherlands with a spouse from the homeland. The State Secretary once again stressed this point explicitly in his Notice of 1 October 1983 to the Second Chamber.
In B. v. the State of the Netherlands, the President of the District Court of Arnhem also found this not to be in conflict with Art. 26 of the International Covenant, because Art. 26 did not bar the making of a distinction of this kind with regard to aliens marrying Dutch nationals. Nor was there any inconsistency with Arts. 8 and 12 of the European Convention, or with Art. 23 of the International Covenant since B'.s husband could be required to enjoy his family life in Turkey. Having regard to the Dutch reservation there was also no question of incompatibility with Art. 12 of the 1977 European Convention on the Legal status of Migrant Workers and, finally, the requirement was not inconsistent with Art. 2 of the 1963 Association Agreement between Turkey and the EEC, since this Article contemplated only an improvement in the position of Turkish nationals in Turkey (Judgment of 26 March 1984, in Rondzending van de Werkgroep Rechtsbijstand in Vreemdelingenzaken (1984) No. D. 32 p. 4).
In Z. v. the State of the Netherlands, the President of the Arnhem District Court held that the requirement of sufficient income did not conflict with Art. 12 of the Association Agreement, combined with Arts. 36–38 of the 1970 Additional Protocol, since these provisions granted no rights to private individuals that should be ensured in court. This followed both from the spirit and ratio of the Agreement and from the wording of the provisions. Moreover, relevant decisions of the Association Council would have no legal force in the Contracting States (Judgment of 15 may 1984, KG (1984) No. 179). In both cases the plaintiffs appealed against the decision. As regards the requirement of sufficient income, cf., Groenendijk, C.A., “Trouwbeperkingen voor tweede generatie immigranten” (Marriage limitation for second generation immigrants), NJB (1983) pp. 1311–8.Google Scholar
45. Note by M.C. Burkens.
46. NILR (1983) p. 387; Stb. 1983 No. 70. Art. 1.2 (4) reads: “Everyone shall have the right to leave the country, except in the cases laid down by Act of Parliament.”
47. Art. 2(2): “Everyone shall be free to leave any country, including his own.”
48. Art. 12 reads: “(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own. (3) The above-mentioned rights shall not be subject to any restriction except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own country.”
49. 520 UNTS p. 151; Trb. 1962 No. 30.
50. Van der V. referred to judgments of the Judicial Division of the Council of State; cf., 10 NYIL (1979) p. 453.
51. The revised version of the Constitution entered into force on 17 February 1983, Stb. 1983 No. 70.
52. Cf., supra, n. 24.
53. Cf., the judgments of the Judicial Division of the Council of State mentioned in 13 NYIL (1982) pp. 329–31 and n. 27.
54. The Judicial Division reached the same conclusion in J.H.B.A.W. v. Minister for Foreign Affairs (Judgment of 10 January 1983, AB (1983) No. 306 with a note by P.J. Boon).
55. Summarized in DD (1983) No. 478.
56. 359 UNTS, p. 273; Trb. 1965 No. 9. For the text of Art. 6, see under Held.
57. Trb. 1969 No. 62 pp. 3, 12 and 13. For the text of the declaration see under Held.
58. The District Court referred to the Supreme Court's Judgment of 10 January 1978, 10 NYIL (1979) pp. 464–5.
59. Cf. on this opinion Kuyper, J.R.H., “The Netherlands Law of Extradition”, in International Law in the Netherlands, Vol. II (Alphen aan den Rijn, Dobbs Ferry, NY 1978) p. 238.Google Scholar
60. Unlike the Supreme Court, the Advocate-General, Leyten, held in this conclusion that the question could arise in the judicial decision as to the admisibility of the extradition (reproduced under NJ (1984) No. 756, with a reference to his conclusion under Supreme Court, 31 May 1983, NJ (1983) No. 691 with a note by Th.W. van Veen).
61. Summarized in NJB (1984) p. 396 No. 77 and DD (1984) No. 302.
62. 616 UNTS p. 79; Trb. 1962 No. 97. Art. 3(1): “Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.”
63. Article 11(1) reads: “Extradition shall not be granted for offences of a political nature, including offences connected with such offences'.
64. The District Court also terminated the imprisonment and ordered release. On the same day, T. was again taken into custody under the Aliens Act. His petition of 31 March, requesting termination of custody under Article 40 of the Aliens Act was granted by the Arnhem District Court on 7 April. The Court considered that the answer to T'.s request for admittance as a (de facto) refugee would be long in coming. The Court also awarded Dfl.100,— compensation for each day spent in custody as from 29 March.
65. Cf., on Art. 11 (1), J.R.H. Kuyper, op.cit. n. 59 pp. 231–3 and 244–5.
66. On 27 April 1984, the State Secretary refused the requests for admittance as a (de facto) refugee (cf., supra n. 64) on the grounds that there was no persecution in this case since no evidence had been produced to show that T's punishment for military disobedience was based on his political opinion, and a disproportionately heavy punishment. After the decision had been personally delivered to T. on 10 October 1984, he was extradited to Belgium on the same day.
67. Note by van Veen, Th.W.. Summarized in DD (1984) No. 333 and NJB (1984) p. 526 No. 79Google Scholar. Discussed and partly quoted by Sjöcrona, J.M. in “Uitlevering en de Europese Conventie” (Extradition and the European Convention), NJCM-Bulletin (1984) pp. 459–69Google Scholar and by Strijards, G.A.M. in DD (1985) pp. 103–19.Google Scholar
68. 213 UNTS p. 221; Trb. 1951 No. 154.
69. Art. 25: “(1) The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victims of a violation by one of the High Contracting Parties of the Rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”
70. 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 …”
71. Cf., Supreme Court, 9 October 1973, 5 NYIL (1974) pp. 313–4, discussed by J.R.H. Kuyper, op.cit. n. 59 p. 222.
72. The Advocate-General Remmelink rejected the point of appeal in his conclusion, on the grounds that an unduly delayed hearing of a criminal case was not mentioned as a bar to extradition in the applicable European Extradition Treaty.
73. With a note by Swart, A.H.J., to Rechtspraak Vreemdelingenrecht (1984) No. 10.Google Scholar
74. KG (1984) No. 19.
75. The hearing of the UNHCR's Representative's counsel is unusual in interim proceedings, but common practice in proceedings before the Judicial Division of the Council of State.
76. See on the criterion infra pp. 494–6.
76a. In two earlier judgments, the President of the Haarlem District Court granted similar requests of Iranians who came to the Netherlands via Turkey. Having regard to the events taking place in Turkey, the President found that it was not the case that there could be no doubt among reasonably-minded people that they were not objectively in a situation of flight. Turkey could not be regarded as the first country of asylum (Judgment of 1 November 1983, KG (1983) No. 328, NJ (1984) No 780 en Judgment of 3 November 1983, Rechtspraak Vreemdelingenrecht (1983) No. 10, with a note by A.H.J. Swart).
77. Note by Fernhout, R. and Takkenberg, L.. Summarized in NJB (1984) p. 836 No. 123.Google Scholar
77a. Note by R. Fernhout and H. Meijers. Also discussed by Meijers, H. in Mededelingen (Proceedings) of the Netherlands International Law Association No. 91 p. 87.Google Scholar
78. Note by A.H.J. Swart.
79. Note by A.H.J. Swart.
80. As laid down in one of the conclusions adopted during the 28th session of the Executive Committee, at Geneva, (4–12 October 1977), viz., Conclusion 6(e)(vii): “The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending”. (Addendum to the Report of the UNHCR, 1977, A/32/12/Add. 1, p. 15),
81. 24 European Yearbook (1981) pp. 357–60Google Scholar. The relevant text reads: “As long as the central authority referred to in paragraph 2 has not taken a decision on the asylum request, the applicant shall be allowed to remain in the territory of the state, unless the competent central authority has established that the request is manifestly based on grounds having no connection with asylum, in particular that it is fraudulent or is related neither to the criteria for the granting of refugee status laid down in Article I.A(2) of the 1951 Geneva Convention nor to other criteria justifying the granting of asylum.”
82. 189 UNTS p. 137; Trb. 1951 No. 131. Art. 31(2): “The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”
83. As laid down in the 1982 Aliens Circular under B. 7.5.1. See also under Held.
84. A similar interpretation had been given earlier by the Court of Appeal of The Hague, 3 April 1980, 13 NYIL (1982) pp. 352–4.
85. According to L. Takkenberg, the President's formulation had been prompted by the text of point (4) of Recommendation No. R (81) 16 (1981) of the Council of Europe Committee of Ministers. See supra n. 81. (Rondzending Subgroep Asielrecht (1983) No. X.17 pp. 11–12).
86. KG (1983) No. 312, Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1983) No. D 82Google Scholar, with a note by Caarls, G., Rondzending Subgroep Asielrecht (1983) No. X 17.Google Scholar
87. The State's grounds of appeal are reproduced in Rondzending Subgroep Asielrecht (1983) No. X 17, with comments by L. Takkenberg.Google Scholar
88. Similarly, the President of the District Court of Haarlem in the cases mentioned supra in n. 76a.
89. Rechtspraak Vreemdelingenrecht (1983) No. 8 with a note by A.H.J. Swart, RvdW (1984) No. 123, reproduced (in part), with comments by Takkenberg, L., in Rondzending Subgroep Asielrecht (1984) No. X, 1.Google Scholar
90. The grounds of appeal are reproduced in Rondzending Subgroep Asielrecht (1983) No. X.22 and RvdW (1984) No. 123.
91. Aanh. Hand. II 1980/81 No. 1034.
92. This argument derives from a notice made by Prof. H. Meijers at the request of M'.s counsel.
93. Meijers' notice refers, inter alia, to a passage in the Memorandum on Aliens Policy which is also quoted in the judgment of the Court of Appeal of The Hague mentioned in n. 84 supra. For a recent statement, cf., 14 NYIL (1983) p. 288.
94. Meijers‘ notice (see supra n. 92) includes the relevant statement, which was made by the Netherlands Government representative in the Third Committee of the General Assembly on 15 November 1983, reading as follows: “The Executive Committee has made a number of recommendations in this respect. At its last session the Netherlands delegation was happy to conclude that the new asylum procedure in the Netherlands is entirely in conformity with these recommendations.”
95. Art. 99: “(1) The Supreme Court will annul acts, judgments, sentences and decisions: … for violation of the law, except for the law of foreign States.”
96. Art. 31 (1)(b): “The Committee shall be consulted on any request for review which our Minister contemplates refusing, if it is a request against: … (b) a decision to refuse admittance as a refugee to an alien who would be forced by such refusal to immediately return to a country where he has well-founded grounds to fear persecution for reasons of religion, political opinion or nationality, or association with a particular race or a particular social group; ” Cf., Swart, A.H.J.: “The Dutch Law on Aliens”, International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, NY 1980) pp. 101–102.Google Scholar
96a. With note by A.L. Melai. Summarised in DD (1984) No. 524.
97. With note by J. Hoens. Reproduced and discussed (in part) by Hoens, J. in Rassen-discriminatie als constitutioneel probleem (Racial discrimination as a constitutional problem), 1984, pp. 19–27.Google Scholar
98. Art. 429 quater reads as follows: “(1) Any person who, in the exercise of his profession or business distinguishes between (onderscheid maakt tussen) persons on account of their race shall be liable to a term of detention (hechtenis) not exceeding one month, or a fine not exceeding ten thousand guilders. (2) …” Cf., 13 NYIL (1982) p. 308.
99. Art. 429 ter reads: “Any person who participates in, or renders financial or other material assistance to, activities directed towards discrimination against people on account of their race shall be liable to a term of detention (hechtenis) not exceeding two months or a fine not exceeding two thousand guilders.”
100. The Local Courts of Amsterdam and Amersfoort reached a similar conclusion in comparable actions against Ballast Nedam, respectively Fläkt B.V. The two actions differed from the case before the Hague Local Court in that Ballast Nedam and Flakt themselves completed the applications forms, unlike the Nederlands Centrum voor Handelsbevordering, which only acted as an intermediary. Moreover, both cases were not only concerned with statements of religion, but also with stating the fact that the enterprise and/or employee had no financial relationships with Israel, which the Amsterdam Local Court considered was only intended as an economic boycott (Judgment of 28 January 1983, NJ (1983) No. 381). Both cases are discussed in NJCM-Bulletin (1983) pp. 93–9; the Local Court of Amersfoort gave judgment on 3 February 1983.
101. The Public Prosecutor also appealed against the judgments mentioned supra in n. 100. The District Court of Utrecht found Fläkt guilty of a breach of Art. 429 quater since there had been a distinction on the grounds of birth or ethnic descent. Fläkt was fined twice the sum of Dfl. 750,—. (Judgment of 3 May 1983). The Amsterdam District Court acquitted Ballast Nedam on the ground that the charge only referred to a distinction “in the exercise of a profession” and not to “in the exercise of a business”, as was here the case. The Court considered ex officio that stating, in applications for a labour permit and/or, visa for employees due to be sent to Saudi Arabia, their religion as well as the fact that the enterprise and its employees had no financial relationships with Israel, did not amount to distinguishing between persons on account of their race within the meaning of Article 429 quater, for, as appeared from the parliamentary discussion of the Arab boycott, a ‘non-Israel’ declaration strictly confined within the scope of an economic boycott did not constitute a breach of Article 429 quater. Also the Chamber's documents made it clear that the actual or threatened use of the declarations was decisive for the question of whether or not a declaration as to religion amounted to distinguishing between persons on account of their race. Now that it had appeared that Saudi Arabia did not discriminate against people on account of their race and was among the signatories of the Convention on the elimination of racial discrimination, and religion was of essential importance to the admittance policy in respect of aliens, the question concerning a person's religion could probably be answered without fearing that the answer would result in discrimination on account of race. Where in this case the issue of the two declarations, considered individually, did not amount to a criminal offence under Article 429 quater of the Penal Code, then the same was the case when the two declarations were combined (Judgment of 22 July 1983, NJ (1984) No. 30. For ‘non-Israel’ declarations, see also 7 NYIL (1976) p. 261, 12 NYIL (1981) p. 208 and 13 NYIL (1982) pp. 193–5).
102. Art. 430(1) reads: “No appeal in cassation lies against the acquittal of an accused.”
103. On the same day, the Supreme Court dismissed the Public Prosecutor's appeal in cassation against the Judgment of the Amsterdam District Court in the criminal action against Ballast Nedam (cf., supra n. 101); the Court held that the District Court's interpretation of the term ‘profession’ was correct. (NJ (1985) No. 530. Summarized in DD (1984) No. 525). Also on the same day, the Supreme Court annulled the judgment of the District Court of Utrecht in the action against Fläkt on the ground of faulty procedure. The Supreme Court remitted the case to the Court of Appeal of Amsterdam for retrial and decision.
104. Notes by Heringa, A.W. and Zwart, T.. Summarized in NJB (1984) p. 284 No. 6Google Scholar. Discussed by Heringa, A.W. in “Equal remuneration as a self-executing social right”, SIM Newsletter (1984) No. 8 pp. 10–5.Google Scholar
105. Note by Levelt-Overmars, W.M. under Rechtspraak Sociale Verzekering (1984)Google Scholar No. 150. On the same day, the Central Council gave an almost similar judgment in the following cases: Z.G.D. v. Het Bestuur van de BV voor de Bouwnijverheid, Rechtspraak Sociale Verzekering (1984) No. 147, NJCM-Bulletin (1984) p. 26; E.H.Z.- v. Mayor and Aldermen of Amsterdam, Rechtspraak Sociale Verzekering, (1984) No. 148; H.S.V. v. Het Bestuur van de Nieuw Algemene BV, Rechtspraak Sociale Verzekering (1984) No. 149; H.G.K. v. Raad van Arbeid of Arnhem, Rechtspraak Sociale Verzekering (1984) No. 150.
106. ILM (1967) p. 368; Trb. 1969 No. 99. For the text of Art. 26, see under Held.
107. For the text of Art. 2(1), see under Held.
108. Art. 41: “A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration …”
109. ILM (1967) p. 383; Trb. 1969 No. 99.
110. Stb. 1964 No. 485.
111. ILM (1967) p. 360; Trb. 1969 No. 100; for the text of the Articles, see under Held.
112. Art. 131(2) reads: “The laws shall be inviolable”.
113. 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 enactment of the regulations.” Art. 67: “Subject, where necesary, to the provisions of Article 63, certain powers with respect to legislation, administration and jurisdiction may by or in virtue of an agreement be conferred on organizations based on international law. With regard to decisions made by organizations based on international law, Articles 65 and 66 shall similarly apply.”
114. 298 UNTS p. 11; Trb. 1957 No. 91. Art. 119: “Each Member State shall in the course of the first stage ensure and subsequently maintain the application of the principle of equal remuneration for equal work as between men and women workers …”
115. Art. 177: “The Court of Justice shall be competent to make a preliminary decision concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community; and (c) the interpretation of the statutes of any bodies set up by an act of the Council, where such statutes so provide. Where any such question is raised before a court or tribunal of one of the Member States, such court or tribunal may, if it considers that its judgment depends on a preliminary decision on this question, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a domestic court or tribunal from whose decisions no appeal lies under municipal law, such court or tribunal shall refer the matter to the Court of Justice.”
116. 213 UNITS p. 221.
117. 213 UNTS p. 262. Art. 1(1) reads: “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.”
118. The Central Council used the Dutch text of the above-mentioned treaty provisions.
119. Summarized in DD (1984) No. 238.
120. Discussed by Rousseau, Ch. in “Chronique des faits internationaux”, RGDIP (1983) pp. 216–7.Google Scholar
121. With a note by F.H. van der Burg.
122. For a description of the situation (with maps), cf., Bouchez, L.J., “The Netherlands and the Law of International Rivers” in International Law in the Netherlands Vol. I, (Alphen aan den Rijn, Dobbs Ferry, NY, 1978), pp. 280–6.Google Scholar
123. The plaintiffs based their primary claim, inter alia, on a conflict with the Ramsar Convention and Articles 4 and 18 of the EC Council Directive on the Conservation of Wild Birds (1979).
124. Cf., Lammers, J. G., “Municipal Aspects of Treaty-Making by the Kingdom of the Netherlands”, in International Law in the Netherlands Vol. I (Alphen aan den Rijn, Dobbs Ferry, NY, 1978) pp. 333–9, at pp. 335–6.Google Scholar
125. With a note by W.H. Vermeer, summarized in DD (1983) No. 409.
126. Stb. 1919 No. 310.
127. Thus, the Court in accordance with its judgment of 5 March 1975, 7 NYIL (1976) p. 340. For subsequent decisions, cf., 11 NYIL (1980) pp. 314–5 and 13 NYIL (1982) p. 379 n. 185.
128. 616 UNTS p. 79; Trb. 1962 No. 97. Art. 21: “(1) Transit through the territory of one of the Contracting Parties shall be granted on submission of a request by the means mentioned in Article 11, paragraph 1, provided that the offence concerned is not considered by the Party requested to grant transit to be an offence of a political character and that the person concerned is not a national of the country requested to grant transit. (2) Subject to the provisions of paragraph 3 of this article, production of the documents mentioned in article 11, paragraph 2(a), shall be required …”
129. Art. 11 reads: “1. The request for extradition shall be addressed in writing by the Minister of Justice of the requested Party. 2. The request shall be supported by (a) The original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; …”
130. For the content of the Arrangement see under Held.
131. Art. 4: “Nationals of the Netherlands shall not be extradited.”
132. K. made an appeal against this decision, dated 24 October 1983, to the Judicial Division of the Council of State on 28 October. The Division dismissed his appeal, since it was based on the Benelux Extradition Treaty and where this Treaty contained “other provisions of a penal character” as referred to in Article 5(g) of the Judicial Review of Administrative Decisions Act, the decision was not by virtue of this Article capable of review by the Division (Judgment of 17 January 1984).
133. In 1965 an Exchange of Notes took place between the Netherlands and Belgium, in which it was proposed to reach an Administrative Arrangement on the subject. This resulted in the instructions of the Dutch Minister for Justice to the Public Prosecutor in Bois Le Duc (21 July 1966) and of the Belgian Public Prosecutor at Turnhout to the Police at Turnhout (24 October 1966). The text of the Arrangement reproduced under 3.2 and 3.3 of the judgment of the District Court is based on and in accordance with the Dutch instruction.
In addition, the Dutch instruction mentions that “The Belgian Government has decided in relation to the question of whose sovereignty covers that part of the Turnhoutseweg that lies along the parcels of land, which by the Judgment of the International Court of Justice of 20 June 1959, are declared to be Belgian territory, to subscribe the Dutch view and therefore to consider parts of the road as ‘mitoyen’.”
134. On 9 May 1984, the Court of Appeal of The Hague upheld this judgment, considering that no reasons had been advanced that could justify derogation from the practical agreement with Belgium of non-notification of each individual case of transit. Moreover, the Court established that there was no breach of Article 3 of Protocol IV to the European Convention on Human Rights, since K. had gone to Baerle-Duc on his own initiative (Institute's Collection No. 2304). On 22 June 1984, K. appealed in cassation to the Supreme Court. After the European Commission of Human Rights had declared K's application against Belgium inadmissible on 12 July 1984 (Application No. 10819/84), he was extradited by Belgium to the USA.
135. Note by van Veen, Th.W.. Summarized in NJB (1984) p. 335Google Scholar No. 49, DD (1984) No.255, TVAR (1984') p. 235 with a note by Martha, R.S.J. and AA (1984) p. 261Google Scholar with a note by R.C.P. Haentjens.
136. 450 UNTS p. 82; Trb. 1959 No. 124. Art. 6: “(1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these Articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. (2) A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.”
137. On 16 August 1962, the “Lucky Star” was seized and taken into a Danish port pursuant to an order of the Criminal Court of Lyngby on 15 August. Cf., ILM (1963) p. 343.
138. 13 NYIL (1982) pp. 381–391. Discussed by Meijers, H. and Siekmann, R.C.R. in “The ‘Magda Maria’ and Customary Law at Sea. A Case-note”, 13 NYIL (1982) pp. 143–56CrossRefGoogle Scholar and by Somer, E. in “De zaak van het m.s. ‘Magda Maria’ en het geldend volkenrecht” (The ‘Magda Maria Case and pertinent international law), Rechtskundig Weekblad (1984) pp. 2442–8.Google Scholar
139. Stb. 1904 No. 7, most recently amended by the Act of 23 January 1974, Stb. 1974 No. 25. Cf., 5 NYIL (1974) pp. 356–7. Art. 3 septies: “(1). It is forbidden: a. to use a radiotransmitter for the purpose of broadcasting verbal, tonal or visual programmes, for the benefit of the public, from a ship or aircraft outside any national territory; b. to operate a radiotransmitter for the aforementioned purposes; c. to make available, or to install a radiotransmitter in the knowledge that it is to be used for the aforementioned purposes; d. to make available a ship or aircraft in the knowledge that it is to be used for the aforementioned purposes. (2). It is forbiden to co-operate wilfuly with an infringement of the aforementined prohibitions by rendering assistance or providing opportunity, means, or information. The following shall in any case be deemed to be acts of co-operation; a. making available material in behalf of the ship or aircrat or the transmitterequipment; b. the maintenance or repair of the ship or aircraft or the transmitter-equipment; c. provisioning of the ship or aircraft; d. conveying of persons and goods to or from the ship or aircraft, or making available the means for such conveyance; e. making programmes or parts thereof, for the purpose of broadcasting; f. commissioning the broadcasting of programmes or parts thereof, or mediating in obtaining such commissions. (3). Acts committed in case of emergency for the purpose of rendering assistance to the ship or aircraft or saving human lives are excepted from paragraph 2. (4). For the purposes of this Article a ship or aircraft includes any other floating or airborne object.”
140. Trb. 1965 No. 92.
141. Cf. 5 NYIL (1974) p. 357.
142. Art. 539 a: “(1) The powers conferred under any statutory provision in respect of the investigation of criminal offences outside a Court of law, may, unless otherwise provided for in this title, be exercised outside the Court's jurisdiction. (2) The provisions of the first and second sections of this Title are applicable only in respect of investigation outside the Court's jurisdiction. Where they concern arrested persons or seized property they remain applicable within the Court's jurisdiction, until such arrested persons or seized property have been handed over to the Public Prosecutor or one of his deputies. (3) The powers conferred under the provisions of this Title can be exercised only subject to international law and inter-regional law.”
143. The text of the provision reads:
“1. All States shall co-operate in the repression of unauthorized broadcasting from the high seas.
2. ‘Unauthorized broadcasting’ consists of the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls.
3. Any person engaged in unauthorized broadcasting from the high seas may be prosecuted before the Court of the flag State of the vessel, the place of registry of the installation, the State of which the person is a national, any place where the transmissions can be received or any State where authorized radio communication is suffering interference.
4. On the high seas, any of the States having jurisdiction in accordance with paragraph 3 above may, in conformity with Article 22, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus”.
144. The Court used the French text.
145. Unlike the Supreme Court, the Advocate-General Leyten considered in his conclusion (reproduced in NJ) that the District Court's considerations on the consensus provided a sufficient basis for regarding the provision of the Draft Convention as pertinent international law on 1 August 1981. Nevertheless, he held the ground of appeal to be well-founded because he considered the Lucky Star case was a precedent of no value and Art. 6 of the High Seas Convention could be modified only by subsequent treaty law.
146. Reproduced (in part) in WRvS (1984) No. V 66.
147. ILM (1972) p. 262; Trb. 1972 No. 62.
148. ILM (1972) p. 1291; Trb. 1973 No. 172.
149. ILM (1974) p. 352; Trb. 1975 No. 29.
150. OJ, 18 May 1976, L 129/23–29.
151. Act of 13 November 1969, Stb. 1969 No. 536.
152. For previous decisions relating to Zuid-Chemie, cf., L.J. Bouchez, op.cit. n. 122 pp. 272–3 and p. 255 (map of the Scheldt Estuary).
153. Cf., 6 NYIL (1975) pp. 413–4.
154. Art. 3(4): “Authorizations may be granted for a limited period only. They may be renewed, taking into account any charges in the limit values referred to in Article 6”
155. Note by J.C. Schultsz. Summarized in NIPR (1984) No. 121.
156. The same judgment also validated a conservatory attachment on all monies, stock, property or otherwise, which the State of the Netherlands owed, or could owe in the future, to the Republic of Portugal.
157. The District Court first of all rejected the plea of AOI that the objection was not made within the given time limit. The default judgment was lodged on 20 december 1977 at the office of the Public Prosecutor to the Court, as the defendant (Portugal) had a known residence outside the Netherlands. The running time for making the objection, however, only commences from the time that the defendant takes action from which it necessarily implies that he knows of the existence of the default judgment. There was no evidence that Portugal knew of the judgment for any longer than 14 days before the delivery of the objection warrant, i.e. 3 May 1978.
158. AOI produced, inter alia, a letter from the Dutch Minister for Foreign Affairs, of 21 September 1976, in which the Minister informed AOI that he had requested the attention of his Portuguese counterpart for this question during his stay in Lisbon. “On the Portuguese side my request met with a positive response and it was suggested that it will be possible to reach a decision in your favour shortly.”
159. AOI derived the link between the financial difficulties of DCI and the nationalisation of its banks from, inter alia, a number of telexes from DCI, from which AOI produced the following quotations: “our problems derived from the recent nationalisation of the Portuguese banks” and “this acceptance is still subject to approval by the Bank of Portugal and relevant Government Ministers.”
160. Note by W.H. Vermeer; discussed by Stelling, M.J.F. in Recht en Kritiek (1985) pp. 267–89.Google Scholar
161. Note by G.E. Mulder; summarized in DD (1984) No. 158.
162. 7 ILM (1968) p. 811; Trb. 1968 No. 126.
163. The duties of the SITE watch include the surveillance of locations where nuclear weapons may be stationed. Cf., for a previous similar case, Supreme Court, 4 May 1981, 13 NYIL (1982) pp. 408–10.
164. He specified the alleged conflict with the Treaty as a conflict with Article II, which reads: “Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transfer or whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”
165. In his conclusion (reproduced under the judgment of the Supreme Court in MRT and NJ), the Advocate-General Leyten also found no conflict with the Treaty. There was no question of transfer, directly or indirectly, of nuclear weapons to the Netherlands, nor of control over such weapons on the sole ground that they were stationed here. Nor, consequently, could the surveillance of such an armoury of nuclear weapons be regarded as transfer or exercise of control, whether directly or indirectly. This surveillance should be regarded rather as a duty of precaution and security to the Dutch people.
166. Note by A.C. ‘t Hart; summarized in DD (1984) No. 163.
167. 359 UNTS p. 89; Trb. 1962 No. 3. Art. 6(4): “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties recognize: … (4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligtions that might arise out of collective agreements previously entered into.”
168. The declaration is reproduced in Trb. 1980 No. 65 p. 7.
169. Art. 94 reads as follows: “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons, or of resolutions by international institutions.”
170. ILM (1967) p. 360; Trb. 1969 No. 100. For the text of Art. 8(1), see under Held.
171. For the text of Art. 2, see under Held.
172. Cf., 8 NYIL (1977) pp. 181–2. Art. 17 reads: “(1) The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned. (2) Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant.”
173. The Court referred to Bijl. Hand. II, 1975–76, 13 392 (R1031), No. 3, pp. 12–13.
174. Note by M.R. Mok.
175. Note by J.G. van der Wielen.
176. For the text, see under Held.
177. For the text, see under Held. On the system of the Act and Decree, see 8 NYIL (1977) p. 331–3 and 12 NYIL (1981) pp. 293–4. For the Netherlands policy under the provisions of the Act and the Decree, see 13 NYIL (1982) pp. 270–1.
178. For the text of Art. 90, see under Held.
179. Stb. 1945 No. F 321, Trb. 1951 No. 44. Art. 1: “The Purposes of the United Nations are: (1). To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the pace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; (2). To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; (3). To achieve international co-operation in solving international problems of an conomic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and (4). To be a centre for harmonizing the actions of nations in the attainment of these common ends“.
180. 500 UNTS p. 95; Trb. 1962 Nos. 101 and 159. The Preamble reads as follows: “The States Parties to the present Convention, Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents, Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations, Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems, …”
181. Cf., Ko Swan, Sik, “The Dutch-Taiwanese submarines deal: legal aspects”, 13 NYIL (1982 pp. 125–41Google Scholar and Siekmann, R.C.R., “Fregatten, corvetten en onderzeeboten. het Nederlands wapenexportbeleid” (Frigates, corvettes and submarines. Dutch arms export policy), 18 Intermediair (1982) No. 4, pp. 15–9.Google Scholar
182. The Minister informed the Second Chamber of his refusal on the same day, see supra p. 426. On 1 February 1984, the Netherlands and Chinese Governments announced in a Joir Communiqué that they had decided to restore their diplomatic relations to ambassador level a from that same day. See supra p. 364.
183. Stb. 1954 No. 416. Art. 5: “Appeal lies if (a) the decision is in conflict with a provision binding on anyone; (b) the powers of deciding have obviously been used for purposes other that those for which such powers are intended; (c) a balancing of the interests involved cannot reasonably lead to the decision;
(d) the decision has otherwise been made contrary to the generally recognized principles of prop government.”
On the Tribunal for Trade and Industry and its powers under the Act on the Administrati Jurisdiction of Mandatory Corporations (Wet Administratieve Rechtspraak Bedrijfsorganisation cf., “Introduction to Dutch law for foreign lawyers” (Deventer 1978) pp. 450–2 and 529.Google Scholar
184. For the history of Art. 90 and its application in the present case, cf., Alkema, E.A., “Foreign relations in the Netherlands Constitution of 1983”, NILP (1984) pp. 313–6Google Scholar. As Alkema rightly notes in footnote 13, the translation of the term “internationale rechtsorde” in art. 90 with “international rule of law”, given in NILR (1983) p. 397Google Scholar seems unfortunate. Here throughout the case the translation “international legal order”, as used in the former provision art. 58, is preferred.
185. For the text of Art. 5(c) and (d) see supra n. 183.
186. Art. 14 reads: (1) Heads of mission are divided into three classes, namely: (a) that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; (b) that of envoys, ministers and internuncios accredited to Heads of State; (c) that of chargé d'affaires accredited to Ministers for Foreign Affairs …“