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Netherlands state practice for the parliamentary year 1980–1981
Published online by Cambridge University Press: 07 July 2009
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References
1. Trb. 1978 No. 70.
2. Art. 9: “… 2. The residence permit shall in accordance with the provisions of national legislation be issued and, if necessary, renewed for a period as a general rule at least as long as that of the work permit. When the work permit is valid indefinitely, the residence permit shall as a general rule be issued and, if necessary, renewed for a period of at least one year. It shall be issued and renewed free of charge or for a sum covering administrative costs only.
…
4. If a migrant worker is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident or because he is involuntarily unemployed, this being duly confirmed by the competent authorities, he shall be allowed for the purpose of the application of Art. 25 of this Convention to remain on the territory of the receiving State for a period which should not be less than five months.
Nevertheless, no Contracting Party shall be bound, in the case provided for in the above sub-paragraph, to allow a migrant worker to remain for a period exceeding the period of payment of the unemployment allowance.
5. The residence permit, issued in accordance with the provisions of paragraphs 1 to 3 of this Article, may be withdrawn:
(a) for reasons of national security, public policy or morals;
(b) if the holder refuses, after having been duly informed of the consequences of such refusal, to comply with the measures prescribed for him by an official medical authority with a view to the protection of public health;
(c) if a condition essential to its issue or validity is not fulfilled.
Each Contracting Party nevertheless undertakes to grant to migrant workers whose residence permits have been withdrawn, an effective right to appeal, in accordance with the procedure for which provision is made in its legislation, to a judicial or administrative authority.”
Art. 12: “1. The spouse of a migrant worker who is lawfully employed in the terrritory of a Contracting Party and the unmarried children thereof, as long as they are considered to be minors by the relevant law of the receiving State, who are dependent on the migrant worker, are authorised on conditions analogous to those which this Convention applies to the admission of migrant workers and according to the admission procedure prescribed by such law or by international agreements to join the migrant worker in the territory of a Contracting Party, provided that the latter has available for the family housing considered as normal for national workers in the region where the migrant worker is employed. Each Contracting Party may make the giving of authorisation conditional upon a waiting period which shall not exceed twelve months …”
Art. 14: “1. Migrant workers and members of their families officialy admitted to the territory of a Contracting Party shall be entitled, on the same basis and under the same conditions as national workers, to general education and vocational training and retraining and shall be granted access to higher education according to the general regulations governing admission to respective institutions in the receiving State …”
3. Memorandum of 8 December 1980, Bijl.Hand. II 1980/81 – 16075 No. 5 pp. 3–4.
4. Cf., 4 NYIL (1973) p. 308.
5. Joint Communiqué of 16 May 1972, Jaarboek van het Departement van Buitenlandse Zaken 1971–1972 [Yearbook of the Ministry of Foreign Affairs 1971–1972], The Hague 1972, Annex 17 p. 86.Google Scholar
6. Statement of 16 December 1980, Hand.II 1980/81 p. 2158.
7. Statement of 29 January 1981, Hand. II 1980/81 p. 2747.
8. Vijfendertigste Zitting van de Algemene Vergadering der Verenigde Naties [Thirty-fifth Session of the UN General Assembly], Publication of the Ministry of Foreign Affairs vol. 126 (1981, hereafter: Vijfendertigste Zitting) p. 454; summary in Doc. A/C.3/35/SR.34 p. 4.
9. Art. 290: “In cases where, in the opinion of the Ministers of the Interior and of Finance, the rules of international law and custom so demand, exemption is granted from local taxes.”
10. Stb. 1909 No. 229 and 1910 No. 73.
11. Stc. No. 166 of 1 September 1981 p. 6.
12. Cf., 1 NYIL (1970) p. 115; 12 NYIL (1981) p. 181.
13. Report of the consultations of 6 November 1980, Bijl.Hand. II – 16400 XVI No. 40 p. 3.
14. Treaty of 19 June 1951, Trb. 1951 No. 114; Art. II reads in full: “It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving State, and to abstain from any activity inconsistent with the spirit of the present Agreement, and, in particular, from any political activity in the receiving State. It is also the duty of the sending State to take necessary measures to that end.”
15. Bijl. Hand. II 1973/74 – 12994 No. 2 p. 77.
16. Statement of 21 May 1981, Bijl. Hand. II 1980/81 – 16813 (R 1165) No. 5 p. 23.
17. Memorandum of 2 April 1981, Bijl.Hand. I 1980/81 – 16400 V No. 88d.
18. Cf., 10 NYIL (1979) p. 332; 12 NYIL (1981) p. 188.
19. Reply of 5 June 1981, Aanh.Hand. II 1980/81 pp. 2217–2218.
20. Cf., 9 NYIL (1978) p. 203; 10 NYIL (1979) p. 323; 11 NYIL (1980) p. 205.
21. The motion was unanimously adopted by the Second Chamber on 20 November 1979, Hand. II 1979/80 p. 1326.
22. Reply of 13 November 1980, Aanh.Hand. II 1980/81 p. 493.
23. Cf., 8 NYIL (1977) p. 166; 10 NYIL (1979) p. 336; 11 NYIL (1980) p. 205.
24. Statement of 22 October 1980, Bijl.Hand. II 1980/81 – 16445 No. 2 p. 6.
25. Note of 17 October 1980, Bijl.Hand. II 1980/81 – 16445 No. 1 p. 2.
26. Memorandum on aliens policy, Bijl.Hand. II 1978/79 – 15649 No. 2 p. 17.
27. Reply of 11 November 1980, Aanh.Hand. II 1980/81 p. 451.
28. Reply of 11 November 1980, Aanh.Hand. II 1980/81 p. 457.
29. Reply of 27 July 1981, Aanh.Hand. II 1981 p. 329.
29a. Trb. 1952 No. 105; 309 UNTS p. 123.
29b. Memorandum of 29 April 1981, Bijl.Hand. II 1980/81 – 16759 No. 3 p. 3.
30. UN Doc. E/CN.4/Sub.2/L. 734 of 2 July 1980.
31. In 1977, Mr. Francesco Capotorti, a member of the Subcommission on Prevention of Discrimination and Protection of Minorities, completed a study on this subject as a special rapporteur to the Sub-Commission.
32. Art. 2: “Any propaganda or other activity which is threatening or which may threaten the existence of minorities or discriminating against them or impeding their right to express and develop freely, on an equitable basis, their own characteristics is incompatible with the fundamental principles of the Charter of the United Nations and other relevant international instruments and should be prevented, condemned and proclaimed illegal by the Member States of the United Nations.”
33. Letter of 29 January 1981, Bijl.Hand. II 1980/81 – 15571 No. 29 pp. 4–6.
33a. Draft by the Committee of Experts established in 1977 on the initiatives of the Netherlands in the Council of Europe.
34. Reply of 6 August 1981, Aanh.Hand. II 1981 pp. 427, 428.
35. Cf., 9 NYIL (1978) p. 209; 12 NYIL (1981) p. 194.
36. Trb. 1964 No. 15 and 1969 No. 241.
37. Bijl.Hand. II 1978/79 – 14252 No. 17; Cf., 11 NYIL (1980) p. 211.
38. Act of 9 March 1967, Stb. 1967 No. 139.
39. Art. 4 para. 2 reads: “The admittance and expulsion of aliens and the general conditions on which extradition treaties can be concluded with foreign Powers, will be determined by law.” Art. 1.2 para 3 leads: “Extradition shall take place only by virtue of a treaty. Further rules on extradition shall be provided by Act.”
40. Memorandum of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 6 p. p. 13.
41. Trb. 1962 No. 97; 616 UNTS p. 79.
42. Reply of 9 October 1980, Aanh.Hand. II 1980/81 p. 199.
43. See the advice of the Advisory Committee on Questions of International Law, of 29 August 1968, on the draft of a new Constitution, in: Naar een nieuwe Grondwet? [Towards a new Constitution?], Part 3, No. 47.
44. Trb. 1965 No. 9.
45. Bijl.Hand. II 1964/65 – 8054 No. 3 p. 12 sub D.
46.-47. Art. 28: “1. This Convention shall, in respect of those countries to which it applies, supersede the provisions of any bilateral treaties, conventions or agreements governing extradition between any two Contracting Parties.
2. The Contracting Parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein …”
48. Reply of 9 October 1980, Aanh.Hand. II 1980/81 pp. 201–202.
49. Reply of 9 October 1980, Aanh.Hand. II 1980/81 p. 196.
50. Trb. 1964 No. 15 and 1969 No. 241.
51. Memorandum of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 6 p. 12.
52. Cf., 9 NYIL (1978) p. 214.
53. Note on refugee policy, Bijl.Hand. II 1978/79 – 15649 Nos. 1–2 p. 8; Note on aliens policy, Bijl.Hand. II 1979/80 – 15990 Nos. 1–2 p. 24.
54. See loc.cit. in n. 53 supra on p. 13.
55. Reply of 12 May 1981, Aanh.Hand. II 1980/81 p. 2010.
56. Cf., 7 NYIL (1976) p. 261; 12 NYIL (1981) p. 208.
57. Cf., Bijl.Hand. II 1978/79 – 14986 No. 7 p. 4.
58. Bill on the registration of foreign boycott measures, Bijl.Hand. II 1980/81 – 16432 Nos. 1–3; see p. 237 infra.
59. Cf., p. 195 infra: The proposed draft. Art 429 quater reads: “1. Any person who, in the exercise of a profession or business, discriminates against a person on account of his race, shall be liable to a term of detention (hechtenis) not exceeding one month or a fine not exceeding ten thousand guilders.
2. This provision is not applicable to acts securing a privileged position for persons belonging to an ethnic or cultural minority group in order to offset factual inequalities.”
60. Bijl.Hand. II 1980/81 – 14986 No. 19 pp. 6–8, 8–9.
61. Cf., 12 NYIL (1981) p. 201.
61a. See, n. 194 supra.
62. Memorandum of 11 February 1981, Bijl.Hand. II 1980/81 – 16115 No. 7 p. 1.
63. Cf., 7 NYIL (1976) p. 257; 8 NYIL (1979) p. 177.
64. Cf., 2 NYIL (1971) p. 165; 3 NYIL (1972) p. 202; 5 NYIL (1974) p. 223; 6 NYIL (1975) p. 378; 10 NYIL (1979) p. 342.
65. Vijfendertigste Zitting, pp. 470–473; summary in Doc.A/C.3/35/SR.56 pp. 14–16.
66. Doc. A/35/18.
67. Vijfendertigste Zitting, pp. 455–456; summary in Doc. A/C.3/35/SR.13 pp. 4–5.
68. Report of 3 July 1981, Doc. CERD/C/75/Add.6. The first report is dated 12 March 1973, Doc. CERD/C/R.50/Add.4; cf., 5 NYIL (1974) p. 217. The second report, of 18 March 1975, in Doc. CERD/C/4; cf., 7 NYIL (1976) p. 261. The third report, of 3 March 1977, in Doc. CERD/C/9; cf., 9 NYIL (1978) p. 217. The fourth report, of 4 May 1979, in Doc. CERD/C/48/Add.5, cf., 11 NYIL (1980) p. 218.
69. Cf., 6 NYIL (1975) p. 282.
70. I.e., draft Arts. 29–35.
71. Memorandum of 21 May 1981, Bijl.Hand. II 1980/81 – 16813 (R 1165) No. 5 pp. 16–17.
72. Reference is here made to the Supreme Court judgment of 10 January 1978, NJ (1978) No. 595, also in 10 NYIL (1979) p. 489. See also, A.L. Melai, Het Wetboek van Strafvordering [The Code of Criminal Procedure], n. 1 to Arts. 263–264, and van Dijk, P. and van Hoof, G.J.H., De Europese Conventie in theorie en praktijk [The European Convention in theory and practice], Utrecht 1979, pp. 240–241.Google Scholar
73. Memorandum of 26 February 1981, Bijl.Hand. II 1980/81 – 16652 No. 3 p. 6.
74. Trb. 1964 No. 15 and 1969 No. 241.
75. Lately Trb. 1974 No. 215.
76. Trb. 1979 No. 150.
77. Government note of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 7
78. See Bijl.Hand. II 3043; Hand. II 1953/54 pp. 806–833; Hand. I 1953/54 pp. 611–625.
79. See Bijl.Hand. II 5229–5359, I 1957/58 No. 202a and b; Hand. II 1959/60 pp. 286–294; Hand. I 1959/60 pp. 442–452.
80. Trb. 1961 No. 8; 1964 No. 163; 1969 No. 223; 1974 No. 215.
81. Memorandum of Reply of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 6 pp. 14–15.
82. 9 NYIL (1978) p. 217.
23. Trb. 1964 No. 15 and 1969 No. 241.
84. Art. 2 reads in full: “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. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance wih law and justified by the public interest in a democratic society.”
85. Bijl.Hand. II 1977 – 13932 (R 1037) No. 8 pp. 15–16.
86. Decision of 18 April 1961, NJ (1961) No. 273.
87. Memorandum of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 6 pp. 13–14.
88. Trb. 1964 No. 15 and 1969 No. 241.
89. Art. 3 para. 1: “No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national”.
90. Doc. H(65) 16, of 18 October 1965.
91. Art. 5 para. 1: “Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.
92. Memorandum of 14 August 1981, Bijl.Hand. II 1981 – 15396 No. 9 pp. 2–3.
93. Trb. 1964 No. 15 and 1969 No. 241.
94. Paspoortinstructie Nederland 1952, of 26 May 1952, Stc. 1952 No. 132.
95. Stc. 1814 No. 4.
96. Memorandum of Reply of 26 January 1981, Bijl.Hand. II 1980/81 – 15396 (R 1110) No. 6 pp. 10–11.
97. Statement of 3 November 1980, Vijfendertigste Zitting pp. 474–476; summary in Doc.A/C.3/35/SR.40 pp. 2–4.
98. Report of 11 February 1981 and 4 September 1981, Doc. CCPR/C/10/Add.3 and 5.
99. Reply of 19 December 1980, Doc. E/1981/6/Add.1 pp. 2–3.
100. Trb. 1962 Nos. 101 and 159.
101. Statement of 24 February 1981, Bijl.Hand. II 1980/81 – 16644 (R 1158) No. 3 p. 11.
102. Vijfendertigste Zitting p. 524; summary in Doc. A/C.6/35/SR.61 pp. 13–14.
103. Report of the International Law Commission on the Work of its Thirty-second Session, 5 May – 25 July 1980, GAOR, 35th Session, Suppl. No. 10 (A/35/10), especially p. 369 et seq.
104. Doc. A/CN.4/334 and Add. 1 and 2.
105. Statement of 11 November 1980, Vijfendertigste Zitting p. 508; summary in Doc. A/C.6/35/SR.44 pp. 14–15.
106. Cf., 6 NYIL (1975) p. 284.
107. Trb. 1972 No. 142.
108. Bijl.Hand. II 1979/80 – 15049 No. 10 p. 10.
109. Memorandum of 28 October 1980, (Nota naar aanleiding van het verslag), Bijl.Hand. II 1980/81 – 16009 (R 1135)/16024 No. 6 p. 5.
110. Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction, of 10 April 1972, Trb. 1972 No. 142.
111. Arts. I-IV read in full: Art. I: “Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain:
(1) microbial or other biological agents, or toxins whatever theii origin of method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
(2) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
Art. II: Each State Party to this Convention undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention all agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this Article all necessary safety precautions shall be observed to protect populations and the environment.
Art. III: Each State Party to this Convention undertakes not to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organisations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in Article I of the Convention.
Art. IV: Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.”
112. Statement of 5 February 1981, Hand. II 1980/81 p. 2975.
113. Cf., 12 NYIL (1981) p. 216.
114. Statement of 25 November 1980, Vijfendertigste Zitting pp. 494–496, summary in Doc. A/C.6/SR.62 pp. 4–6.
115. Cf., 10 NYIL (1979) p. 360; 11 NYIL (1980) p. 221; 12 NYIL (1981) p. 222.
116. Report of the International Law Commission on the Work of its Thirty-second Session, 5 May – 25 July 1980, GAOR, 35th Session, Suppl. No. 10 (A/35/10), especially p. 136 et seq.
117. Art. 36 bis reads: “[Third States which are members of an international organization shall observe the obligations, and may exercise the rights, which arise for them from the provisions of a treaty to which that organization is a party if:
(a) the relevant rules of the organization applicable at the moment of the conclusion of the treaty provide that the States members of the organization are bound by the treaties concluded by it; or
(b) the States and organizations participating in the negotiation of the treaty as well as the States members of the Organization acknowledge that the application of the treaty necessarily entails such effects.]”
Art. 37 paras. 5 and 6 reads: “[5. When an obligation or a right has arisen for third States which are members of an international organization under the conditions provided for in subpara. (a) Art. 36 bis, the obligation or the right may be revoked or modified only with the consent of the parties to the treaty, unless the relevant rules of the organization applicable at the moment of the conclusion of the treaty otherwise provide or unless it is established that the parties to the treaty had otherwise agreed.]
[6. When an obligation or a right has arisen for third States which are members of an international organization under the conditions provided for in subpara. (b) of Art. 36bis, the obligation or the right may be revoked or modified only with the consent of the parties to the treaty and of the States members of the organization, unless it is established that they had otherwise agreed.]”
118. Art. 27 para. 2 reads: “An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty, unless performance of the treaty, according to the intention of the parties, is subject to the exercise of the functions and powers of the organization.”
119. Art. 46 paras. 2 and 3 reads: “2. In the case referred to in para. 1, a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
3. An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest.”
120. Art. 73 reads: “1. The provisions of the present articles shall not prejudge any question that may arise in regard to a treaty between one or more States and one or more international organizations from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States parties to that treaty.
2. The provisions of the present articles shall not prejudge any question that may arise in regard to a treaty from the international responsibility of an international organization, from the termination of the existence of the organization or from the termination of participation by a State in the membership of the organization.”
121. Art. 42 reads: “1. The validity of a treaty between two or more international organizations or of the consent of an international organization to be bound by such a treaty may be impeached only through the application of the present articles.
2. The validity of a treaty between one or more States and one or more international organizations or of the consent of a State or an international organization to be bound by such a treaty may be impeached only through the application of the present articles.
3. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present articles The same rule applies to suspension of the operation of a treaty.”
122. Art. 65 reads: “1. A party which, under the provisions of the present articles, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in Art. 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Art. 33 of the Charter of the United Nations.
4. The notification or objection made by an international organization shall be governed by the relevant rules of that organization.
5. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.
6. Without prejudice to Art. 45, the fact that a State or an international organization has not previously made the notification prescribed in para. 1 shall not prevent if from making such notification in answer to another party claiming performance of the treaty or alleging its violation.”
123. Art. 66 reads: “1. If, under para. 3 of Art. 65, no solution has been reached within a period of 12 months following the date on which the objection was raised by a State with respect to another State, the following procedures shall be followed:
(a) anyone of the parties to a dispute concerning the application or the interpretation of Arts. 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;
(b) anyone of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present articles may set in motion the procedure specified in the Annex to the present articles by submitting a request to that effect to the Secretary-General of the United Nations.
2. If, under para. 3 of Art. 65, no solution has been reached within a period of 12 months following the date on which the objection was raised by an international organization with respect to another organization, any one of the parties to a dispute concerning the application or the interpretation of any of the articles in Part V of the present articles may, in the absence of any other agreed procedure, set in motion the procedure specified in the Annex to the present articles by submitting a request to that effect to the Secretary-General of the United Nations.
3. If, under para. 3 of Art. 65, no solution has been reached within a period of 12 months following the date on which the objection was raised by a State with respect to an international organization or by an organization with respect to a State, any one of the parties to a dispute concerning the application or the interpretation of any of the articles in Part V of the present articles may, in the absence of any other agreed procedure, set in motion the procedure specified in the Annex to the present articles by submitting a request to that effect to the Secretary-General of the United Nations.”
The Annex is not reproduced here.
124. Statement of 11 November 1980, Vijfendertigste Zitting pp. 500–503; summary in Doc. A/C.6/35/SR.44 pp. 6–9.
125. Trb. 1981 No. 86.
126. Memorandum of 7 August 1981, Bijl. Hand. II 1981 – 17012 (R 1187) No. 1 p. 2.
127. Report of the ILC on the Work of its Thirty-second Session, 5 May – 25 July 1980, GAOR, 35th Session, Suppl. 10 (A/35/10), especially p. 237 et seq.
128. Art. 3 para. 3 reads: “Insofar as the uses of an international watercourse system may require system States shall negotiate in good faith for the purpose of concluding one or more system agreements.”
129. Art. 3 para. 2 reads: “A system agreement shall define the waters to which it applies. It may be entered into with respect to an entire international watercourse system, or with respect to any part thereof or particular project, programme or use provided that the use by one or more other system States of the waters of an international watercourse system is not, to an appreciable extent, affected adversely.”
130. Art. 5 reads: “1. To the extent that the use of waters of an international watercourse system in the territory of one system State affects the use of waters of that system in the territory of another system State, the waters are, for the purposes of the present articles, a shared natural resource.
2. Waters of an international watercourse system which constitute a shared natural resource shall be used by a system State in accordance with the present articles.”
131. Statement of 11 November 1980, Vijfendertigste Zitting p. 507; summary in Doc. A/C.6/35/SR.44 pp. 11–13.
132. Cf., 8 NYIL (1977) p. 201; 9 NYIL (1978) p. 229; 10 NYIL (1979) p. 379; 11 NYIL (1980) p. 227; 12 NYIL (1981) p. 230.
133. Report of the ILC on the Work of its Thirty-second Session, 5 May – 25 July 1980, GAOR, 35th Session, Suppl. 10 (A/35/10), especially p. 49 et seq.
134. Art. 33 reads: “1. A State of necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act of that State not in conformity with an international obligation of the State unless:
(a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the State towards which the obligation existed.
2. In any case, a state of necessity may not be invoked by a State as a ground for precluding wrongfulness:
(a) if the international obligation with which the act of the State is not in conformity arises out of a peremptory norm of general international law; or
(b) if the international obligation with which the act of the State is not in conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state of necessity with respect to that obligation; or
(c) if the State in question has contributed to the occurrence of the state of necessity.”
Art. 34 reads: “The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”
Art. 35 reads: “Preclusion of the wrongfulness of an act of a State by virtue of the provisions of Arts. 29, 31, 32 or 33 does not prejudge any question that may arise in regard to compensation for damage caused by that act.”
135. See p. 232 infra.
136. Statement of 11 November 1980, Vijfendertigste Zitting pp. 503–505; summary in Doc. A/C.6/35/SR.44 pp. 9–11.
137. See loc.cit. at n. 133 supra, p. 361 et seq.
138. Art. 29 reads: “1. The consent validly given by a State to the commission by another State of a specified act not in conformity with an obligation of the latter State towards the former State precludes the wrongfulness of the act in relation to that State to the extent that the act remains within the limits of that consent.
2. Para. 1 does not apply if the obligation arises out of a peremptory norm of general international law. For the purposes of the present draft articles, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
Art. 32 reads: “1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the conduct which constitutes the act of that State had no other means, in a situation of extreme distress, of saving his life or that of persons entrusted to his care.
2. Para. 1 shall not apply if the State in question has contributed to the occurrence of the situation of extreme distress or if the conduct in question was likely to create a comparable or greater peril.”
139. See p. 221 supra.
140. Statement of 11 November 1980, Vijfendertigste Zitting pp. 505–506; summary in Doc. A/C.6/35/SR.44 pp. 11–12.
141. See for the Netherlands commentary, Doc. A/35/210 p. 13.
142. Verslag over de Negende Algemene Vergadering van de Verenigde Naties [Report on the Ninth General Assembly of the United Nations], Publication of the Ministry of Foreign Affairs vol. 39 (1955) p. 269.Google Scholar
143. Vijfendertigste Zitting pp. 489–491; summary in Doc. A/C.6/3S/SR.11 pp. 10–11.
144. In Art. 1: “Foreign boycott: the effort to exclude one or more states wholly or partially from international economic relations, unless such a decision has been made (a) by the Netherlands or, in the form of a decision binding on the Kingdom, by a group of states including the Kingdom; (b) solely on grounds of economic policy”.
145. “Foreign boycott measure: (a) a measure implementing a foreign boycott by laying down discriminatory or otherwise restrictive conditions in respect of trade relations between states against which the foreign boycott is not directed, and enterprises established in these states, and
– the state or states against which the foreign boycott is directed, nationals of such states, or natural and legal persons established in them, or
– natural and legal persons deemed to maintain connections with the State or States against which the foreign boycott is directed;
(b) a measure taken in connection with a foreign boycott and aimed at laying down discriminatory or otherwise restrictive conditions in respect of the persons who are involved, directly or indirectly, in the implementation of contracts;
(c) a measure aimed at encouraging the application of such measures as are referred to in (a) or (b), by requesting information.”
146. Memorandum of 9 October 1980, Bijl.Hand. II 1980/81 – 16432 No. 3 pp. 5, 6, 8,
147. Cf., 11 NYIL (1980) p. 239.
148. Stb. 1948 No. I 284.
149. Stb. 1945 No. F 321.
150. Art. 43: “1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaing international peace and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory States in accordance with their respective constitutional processes.”
151. Draft Art. 33 para. 1: “Conscripts may be assigned for service outside the Netherlands.”
152. Draft Art. 33, para. 2: “(a) Assignment within the meaning of para. 1 for the maintenance or restoration of international peace and security within the framework of the UN shall be subject to the consent of the conscript concerned, or to Our authorization. The Decree in which such authorization is laid down shall be submitted to both Chambers of the States-General, and shall not take effect until the day following the day on which ten days have elapsed since its submission.
(b) In exceptional circumstances, the Decree may take immediate effect. In that case, the Decree shall forthwith be brought to the notice of both Chambers of the States-General.”
153. Memorandum of 8 December 1980, Bijl.Hand. II 1980/81 – 16521 No. 3 pp. 5, 6–7.
154. Cf., 11 NYIL (1980) p. 238; 12 NYIL (1981) p. 245.
155. Memorandum of 23 January 1981, Bijl.Hand. II 1980/81 – 16400 V/X No. 49 p. 5.
156. Cf., 7 NYIL (1976) p. 275; 8 NYIL (1977) p. 211.
157. Verslag over de Tiende Bijzondere Zitting van de Algemene Vergadering der Verenigde Naties [Report on the Tenth Special Session of the UN General Assembly on Disarmament], Publication of the Ministry of Foreign Affairs vol. 122 (1979) p. 41.Google Scholar
158. Vijfendertigste Zitting pp. 399–400; summary in Doc. A/C.1/35/PV.34 pp. 10–13.
159. Cf., 11 NYIL (1980) p. 242.
160. Doc. CD/PV.124 pp. 17–21.
161. Doc. CD/PV.142 pp. 12–15.
162. 16 ILM (1977) pp. 1413, 1415.
163. 16 ILM (1977) pp. 1413, 1415.
164. Cf., 12 NYIL (1981) p. 247.
165. See Doc. CD/31 and CD/32 of 9 July 1979.
166. Doc. CD/PV.137 pp. 15–17.
167. Cf., 4 NYIL (1973) p. 348; 5 NYIL (1974) p. 251; 6 NYIL (1975) p. 306; 11 NYIL (1980) p. 244; 12 NYIL (1981) p. 251.
168. Doc. CD/203.
169. Bijl.Hand. II 1970/71 – 10900 V No. 9.
170. Reply of 20 August 1981, Aanh.Hand. II 1981 p. 495.
171. Doc. A/35/366/Add.1 p. 10 et seq.
172. Art. 47 para. 2 reads: “A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict, and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.” Text in 16 ILM (1977) p. 1412.
173. Art. 2, para. 1 reads: “The crime of mercenarism is committed when an individual, group or association, or body corporate registered in that State or representative of a State or the State itself with the aim of opposing by threat or armed violence the territorial integrity of another State or the legitimate aspirations of national liberation movements jeopardizes the process of self-determination or manifests by overt acts any of the following:…”
174. Art. 7 reads: “When a State Party is accused by virtue of the provisions of Art. 2 and Art. 8 for acts or omissions declared to be the offence under the present Convention, any State Party having jurisdiction may invoke the provisions of this Convention against the offending State before any competent international organization or tribunal.”
175. Para. 2 of the Article.
176. Vijfendertigste Zitting pp. 488–489; summary in Doc. A/C.6/35/SR.23 pp. 16–17.
177. Instructions established in May 1937 by the Council of Ministers relating to the attitude to be adopted by administrative bodies of the State, the provinces, municipalities, polder areas and fen areas, as well as their employees, and by railway and tram personnel in the event of enemy invasion.
178. Stb. 1910 No. 73(4e).
179. Trb. 1951 No. 75.
180. Stb. 1952 No. 408.
181. Stc. No. 168 of 1 September 1980 p. 4.
182. Letter of 3 November 1980, Bijl.Hand. II 1980/81 – 16400 V No. 26 pp. 1, 2.
183. cf., 12 NYIL (1981) p. 254.
184. Bijl.Hand. II 1978/79 – 15571 No. 2.
185. Vijfendertigste Zitting pp. 518–522; summary in Doc. A/C.6/35/SR.70 pp. 8–11.
186. Cf., 12 NYIL (1981) p. 255.
187. Doc. E/CN.4/SR.1614 pp. 4–6.
188. Cf., 11 NYIL (1980) p. 252.
189. Bijl. Hand. II 1980/81 – 16400 V No. 2 p. 135.
190. cf., 12 NYIL (1981) p. 257.
191. Bijl.Hand. II 1979/80 – 16017 No. 1.
192. Reply of 4 December 1980, Hand. II 1980/81 p. 1880.
193. Cf., 4 NYIL (1973) p. 360.
194. Trb. 1951 No. 76, 188 UNTS p. 289.
195. Statement of 31 March 1981, Bijl.Hand. II 1980/81 – 15084 No. 7 pp. 2–3.
196. Cf., 1 NYIL (1980) p. 189; 2 NYIL (1971) p. 201; 9 NYIL (1978) p. 247; 11 NYIL (1980) p. 257; 12 NYIL (1981) p. 261.
197. Stb. 1962 No. 295.
198. Stb. 1963 No. 128.
199. Lastly Stc. No. 167 of 29 August 1980.
200. Bijl.Hand. II 1974/75 – 13461 No. 2.
201. Bijl.Hand. II 1978/79 – 15571 No. 2.
203. Art. 2 provides that various kinds of restrictive measures with regard to the import and export of goods may be taken by Royal Decree if, in the opinion of the Government, such measures “are considered necessary in the interest of the national economy, the internal or external security of the country, or of the international legal order or if an international accord relating to that order so demands”. Under this enabling provision, inter alia, the Export Decree for Strategic Goods has been promulgated.
204. Art. 10: “(1) The appropriate Minister may withdraw grants and exemptions falling within a designated category, where he deems this justified for substantial reasons.”
205. Stb. 1980 No. 93.
206. Stc. No. 228 of 24 November 1980.
207. Bijl.Hand. II 1980/81 – 16204 No. 3 pp. 1–4.