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Netherlands judicial decisions involving questions of public international law, 1997–19981
Published online by Cambridge University Press: 07 July 2009
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References
4. OJ 1992, L 209/1.
5. Trb. 1994 No. 235, p. 406.Google Scholar
6. Trb. 1966 No. 1.
7. Art. XIII, para. 2(c) and para. 4, reads: ‘Each entity shall, on request from a supplier of a Party, promptly provide: […] (c) to an unsuccessful tenderer, pertinent information concerning the reasons why its tender was not selected and on the characteristics and relative advantages of the tender selected as well as the name of the winning tenderer.
[…]
4. However, entities may decide that certain information on the contract award, contained in paragraphs 1 and 2 (c), be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular enterprises, public or private, or might prejudice fair competition between suppliers.’
8. Note by C.A. Groenendijk.
9. 14 ILM (1975) p. 855Google Scholar; Trb. 1975 No. 123. For the text of Art. XII (3)(c) ESA Convention see under Held.
10. For the text of Art. 2(5)(a) see under Held.
11. See 28 NYIL (1997) p. 308.Google Scholar
12. With note by P.E. Minderhoud.
13. 189 UNTS p. 137; Trb. 1951 No. 131. Art. 24 of the Refugee Convention reads: ‘Labour Legislation and Social Security 1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: […] (b) social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations: (i) there may be appropriate arrangements for the maintenance of acquired rights and rights in the course of acquisition; (ii) national laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension…’
14. 179 UNTS p. 89; Trb. 1967 No. 73. Art. 1 of the Convention of The Hague reads: ‘It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’
15. Art. 2 reads: ‘A resident within the meaning of this Act is a person who lives in the Kingdom’. Art. 3 reads: ‘1. Where a person lives is assessed according to the circumstances, in so far as not provided otherwise in the following paragraph. 2. If a period of less than a year lies between the date on which a person leaves the Kingdom to take up residence elsewhere and the date on which he returns to take up residence in the Kingdom, he shall be deemed not to have left the Kingdom to take up residence elsewhere. This does not apply if the person concerned lived during his absence in the territory of another Power or in one of the other parts of the Kingdom. 3. Ships and aircraft which have their home port within the Kingdom shall be treated as part of the Kingdom with regard to the crew.’
16. RV (1997) No. 81 with note by P.E. Minderhoud.
17. See 16 NYIL (1985) p. 451.Google Scholar
18. Note by T.P. Spijkerboer, summarised and discussed by Lankers, F. in NAV (1996) p. 995.Google Scholar
19. 213 UNTS p. 221. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
20. In a letter of 13 June 1996 the Representative in the Netherlands referred in respect of this position to the UNHCR position on coerced family planning as put forward during the Symposium on Gender-Based Persecution held in Geneva on 22–23 February 1996. This document has been published in NAV (1996) p. 1057.Google Scholar
21. By judgment of 22 September 1997 the Administrative Law Division of the Council of State quashed the decision to refuse Y.'s application for admission as a refugee. Following the birth of her two children Y. had been forcibly sterilised, without anaesthetic, when her partner refused to be sterilised. The Division repeated its objections to the general findings as reproduced in the case against X. The Division also considered that the respondent had taken insufficient account of the specific situation of the children. It had been submitted that the oldest child had not been registered because Y. was not then married and that the youngest child had not been registered because it should not have been born. (NAV (1997) p. 2019Google Scholar, discussed by F. Lankers in ‘Illegale Broertjes en Zusjes; over de vluchtelingrechtelijke relevantie van het overtreden van de regelgeving op grond van de Chinese bevolkingspolitiek’ (Illegal brothers and sisters; on the relevance under refugee law of the infringement of the legislation based on the Chinese population policy of refugee law), NAV (1997) pp. 968–975).Google Scholar
22. Discussed by Wouters, K. in NAV (1997) p. 749Google Scholar. The matters also covered are the residence of S.'s wife in the Netherlands and the possible residence of S.'s son (family life).
23. Note by P. Boeles.
24. Note by B. Vermeulen.
25. For this judgment see 27 NYIL (1996) pp. 334–339.Google Scholar
26. Art. 1(F) reads: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations’.
27. Art. 1(A) reads: ‘… the term refugee shall apply to any person who […] (2) as a result of events occurring before 1 January 1951 and owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.’
28. Art. 15 of the Aliens Act reads: ‘(1) Aliens coming from a country where they have a well-founded fear of persecution because of their religious or political opinion or their nationality, or because they belong to a certain race or particular social group, may be admitted as refugees by Our Minister. (2) Admission may be refused only for important reasons in the public interest if such refusal would force the alien to proceed forthwith to a country as defined in paragraph 1.’
29. For the text of Art. 3, see supra n. 19.
30. 25 NYIL (1994) p. 523.Google Scholar
31. GV No. 18a-22.
32. Summarised and discussed by Vrij, M.J. in ‘De zaak Watson’ (The Watson Case), 47 AA (1998) pp. 69–78.Google Scholar
33. W. appealed in cassation against the District Court's judgment to the Supreme Court. The Supreme Court held by judgment of 29 August 1997 that the case of the Public Prosecutor was not admissible since the Norwegian Ministry of Justice had retracted the request for extradition on 19 June 1997.
34. Summarised in DD (1998) No. 124.
35. Art. 6(1) reads: ‘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.’
36. Article 1 of the European Convention reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’
37. Art. VI of the Agreement of Wittem reads: ‘Without prejudice to the option of using the diplomatic channel there shall be correspondence: (a) concerning extradition between the Federal Minister of Justice or the Ministries of the Federal States (‘Landesjustizverwaltungen’) of the Federal Republic of Germany and the Dutch Minister of Justice.’
38. Art. 65 of the Agreement applying the Schengen Agreement reads: ‘Without prejudice to the option to use the diplomatic channel, requests for extradition and transit shall be sent to the relevant Ministry of the requesting Contracting Party to the relevant Ministry of the requested Contracting Party. 2. The relevant Ministries shall be: […] as regards the Federal Republic of Germany: the Federal Ministry of Justice and the Justice Ministers or Senators of the Federal States; […] as regards the Kingdom of the Netherlands: the Ministry of Justice.’
39. With note by A.C. 't Hart.
40. Trb. 1972 No. 97.
41. Art. 93 of the Constitution reads: ‘Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents, shall become binding after they have been published.’
42. Art. 3 of the Kingdom Act reads: ‘In so far as necessary and possible, the following shall also be placed in the Tractatenblad (Dutch Treaty Series): (a) a Dutch translation of the agreement or resolution; (b) information concerning the approval by the States-General; (c) information concerning the date of entry into force in respect of other Powers and for international organisations; (d) information concerning the date on which it ceases to apply to other Powers and to international organisations; (e) other information.’
43. Art. 16 of the Constitution and Article 1 of the Criminal Code read: ‘No offence shall be punishable unless it was an offence at the time it was committed’.
44. Trb. 1992 No. 145.
45. Judgment of 1 April 1996. For an identical judgment of the Court of Appeal in Arnhem of 27 November 1996, see 28 NYIL (1997) p. 366.Google Scholar
46. Article 16 of the Constitution and Article 1 of the Criminal Code read: ‘No offence shall be punishable unless it was an offence at the time it was committed’.
47. Note by P. Vlas.
48. Note by de Boer, T.M.. Summarised in NJB-katern (1997) p. 1042Google Scholar (No. 126C), NILR (1998) pp. 129–137Google Scholar, with commentary by M.E. Koppenol-Laforce. Idem by Pellis, L.T.L.G. in Advocatenblad (1998) pp. 149–151Google Scholar and by Steffens, L.F.A. in NTBR (1997) pp. 212–217Google Scholar. Discussed by Rijpma, D. in WPNR (1998) pp. 21–27Google Scholar and by Bertrams, R.I.V.F. in WPNR (1998) pp. 291–292.Google Scholar
49. OJ (1980) No. L. 266; 19 ILM (1980) p. 1492Google Scholar; Trb. 1980 No. 156. This Convention entered into force for the Netherlands on 1 September 1991. Art. 12 reads: ‘1. The mutual obligations of assignor and assignee under a voluntary assignment of a right against another person (‘the debtor’) shall be governed by the law which under this Convention applies to the contract between the assignor and assignee. 2. The law governing the right to which the assignment relates shall determine its assignability, the relationship between the assignee and the debtor, the conditions under which the assignment can be invoked against the debtor and any question whether the debtor's obligations have been discharged.’
50. Art. 18 of the 1980 Rome Convention reads: ‘In the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application.’
51. 1155 UNTS p. 331; 8 ILM (1969) p. 679Google Scholar; Trb. 1972 No. 51. This Convention entered into force for the Netherlands on 9 May 1985. Art. 31(1) reads: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Art. 32 reads: ‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’
52. Note by Verschuuren. Discussed by Douma, W.Th. in ‘Beginselen van intemationaal milieurecht; een case study naar het gebruik van net voorzorgsbeginsel in het Nederlandse milieurecht’Google Scholar [Principles of international environmental law; a case study of the use of the precautionary principle in Dutch environmental law], Internationaal Milieurecht in Nederland (1998) pp. 117–133 at pp. 124–125.Google Scholar
53. With note by Dr H. van der Wilt. This judgment has also been discussed by Coolen, G.L. in ‘Nogmaals: oorlogsmisdrijven, gepleegd in voormalig Joegoslaviä’Google Scholar (Yet again: war crimes committed in the former Yugoslavia), MRT (1995) pp. 104–106Google Scholar, Coolen, G.L., ‘De Wet Oorlogsstrafrecht: een wet met gebreken’ (The Wartime Criminal Law Act: a defective Act), DD (1996) pp. 43–53Google Scholar and van Elst, R., ‘De zaak Knezevic; rechtsmacht over Joegoslavische en andere buitenlandse oorlogsmisdadigers’ (The Knezevic case: jurisdiction over Yugoslav and other foreign war criminals), NJB (1998) pp. 1587–1593.Google Scholar
54. For the text of Art. 9 of the Statute, see under Held.
55. For the text of Art. 3 of the Act, see under Held.
56. For the text of Art. 1 of the Act, see under Held.
57. For the text of Arts. 8, 9 and 109 see under Held.
58. For the text of Art. 12, see under Held.
59. See MRT (1996) pp. 201–206Google Scholar, with note by G.L. Coolen.
60. 31 ILM (1992) p. 1476.Google Scholar
61. 75 UNTS p. 287; Trb. 1951 No. 75. Art. 3 reads: ‘In case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.
2.The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties.
62. 32 ILM (1993) p. 1203Google Scholar (Resolution).
63. 31 ILM (1992) p. 1447Google Scholar; Wellens, K.C., Resolutions and Statements of the United Nations Security Council (1946–1992) – A Thematic Guide (The Hague, Asser Instituut 1993 p. 55).Google Scholar
64. 31 ILM (1992) p. 1431Google Scholar; K.C. Wellens, op.cit. n. 63, p. 48.
65. The following English text is taken, with permission, from the translation of the decisions of the Court of Appeal and the Supreme Court as published in the above-mentioned Yearbook of International Humanitarian Law (with the exception of some minor editorial amendments).
66. Note by E. van der Linden.
67. Note by Drupsteen, T., summarised in NJB-Katern (1998) p.321, No. 7.Google Scholar
68. Art. 6(1) reads: ‘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 interests of morals, public order or national security in a democratic society, where the interests of juveniles 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.’
69. Art. 74 reads: ‘1. If a judgment is, in Our view, contrary to the public interest, We may order on the recommendation of Our Ministers concerned, that it will not have any consequences or not have full consequences. 2. Pending the making of an order as referred to in the previous paragraph, We may decide, on the recommendation of Our Ministers concerned, to suspend the judgment wholly or partly during such period as is specified in our decision. The suspension may not last longer than a year, even after renewal. 3. An order as referred to in paragraph 2 may be taken only within two months of the date on which the judgment is given. 4. Our orders shall be placed in the Bulletin of Acts and Orders (Staatsblad). 5. The provisions of the first two paragraphs shall not apply in so far as compensation or a contribution towards the damage has been awarded or an order to bear the costs has been made. 6. In so far as an order has been made by Us as regards a judgment pursuant to paragraph 1 or 2, no penalty shall be owed for failure to comply with this judgment. A penalty that has been paid shall be reimbursed.’
Art. 75 reads: ‘1. If we order that the judgment should not have any consequences or not have full consequences, the Appeals Tribunal may give judgment anew at the request of the party concerned, taking account of Our order, or may order the body to pay compensation for or a contribution towards the damage which the petitioner has suffered as a result of the judgment not having any consequences or full consequences. 2. The request shall be made within two months of the day of issue of the Staatsblad in which Our order is placed. 3. The provisions of Title 4 shall apply by analogy. 4. We may decide that the payment of compensation for or a contribution towards the damage which the Appeals Tribunal has ordered on the basis of paragraph 1 of this Article shall be borne wholly or partly by the State.’
70. Art. 53 of the European Convention reads: ‘The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.’
71. On 18 May 1997 the District Court of the Hague dismissed in identical fashion the submission made by the State in the case which cattle farmer Van der Hurk had instituted against the State after the judgment of the European Court dated 19 April 1994, in which the European Court had upheld his submission that the procedure before the Appeals Tribunal was contrary to Article 6 of the European Convention, JB (1997) No. 303, with note by A.W. Heringa.
72. Summarised in NJB-Katern (1997) p. 1893 (No. 41).Google Scholar
73. 330 UNTS p. 3; Trb. 1958 No. 145, Art. V 2(b) reads: ‘Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) the subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) the recognition and enforcement of the award would be contrary to the public policy of that country.’
74. For the text of Arts. 10 and 23, paragraph 2, of the Act, see under Held.
75. 2 UNTS p. 39; Stb. 1946 No. G 278. Art. VIII, section 2 (b), of the IMF Agreement reads: ‘Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member. In addition, members may, by mutual accord, cooperate in measures for the purpose of making the exchange control regulations of either member more effective, provided that such measures and regulations are consistent with this Agreement.’
76. For the text of Art. 10, para. 1(b), of the Act see under Held.
77. 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.’ Art. 13 reads: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’
78. See 28 NYIL (1997) p. 326.Google Scholar
79. In its decision of 28 May 1999 the Administrative Law Division of the Council of State confirmed the decision of the District Court, NJB (1999) No. 29, p. 1327.Google Scholar