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Netherlands state practice for the parliamentary year 1985–1986

Published online by Cambridge University Press:  07 July 2009

R.C.R. Siekmann
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Netherlands Yearbook of International Law , Volume 18 , December 1987 , pp. 249 - 316
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Copyright © T.M.C. Asser Press 1987

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References

1. Bijl.Hand. II 1985/86 – 17890 No. 25.

2. See earlier, 15 NYIL (1984) p. 273.

3. Act of 22 July 1985, Stb. 1985 No. 452; see for the full text of the modified Statute, Stb. 1985 No. 453.

4. Statement of 13 January 1986, Aanh.Hand. II 1985/86 No. 339 p. 667.

5. See earlier, 16 NYIL (1985) p. 370.

6. Trb. 1981 No. 69.

7. UNGA Resolution 3166 (XXVIII) of 14 December 1973.

8. Statement of 31 December 1985, Bijl.Hand. II 1985/86 – 18437 (R 1260) No. 6 p. 2.

9. Statement of 30 June 1986, Aanh.Hand. II 1985/86 No. 861 p. 1713.

10. Trb. 1985 No. 145.

11. Bijl.Hand. II 1985/86 – 19290 No. 13 pp. 1, 2, 2–3.

12. Trb. 1985 No. 145.

13. Art. 63: ‘If the development of the international legal order requires this, the contents of an agreement may deviate from certain provisions of the Constitution. In such cases only explicit approval can be given; the Chambers of the States-General shall not approve a Bill to that effect but with a two-thirds majority of the votes cast’.

14. Bijl.Hand. II 1951/52 – 2374 No. 7 p. 7.

15. Art. 91, para. 3: ‘Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Chambers of the States General only if at least two-thirds of the votes cast are in favour’.

16. Art. 194: ‘All Netherlanders who are able shall be bound to collaborate for the maintenance of the independence of the Kingdom and for the defence of its territory. This obligation may also be laid upon residents who are not Netherlanders’.

Art. 195: ‘For the protection of the interests of the State there are the Armed Forces, composed of volunteers and conscripts. Obligatory military service shall be regulated by law. Such law shall also regulate the obligations in respect of the defence of the Kingdom which may be laid upon those persons who do not belong to the Armed Forces’.

17. Bijl.Hand. II 1952/53 – 2911 No. 8 p. 3.

18. Bijl.Hand. II 1952/53 – 2911 No. 13 pp. 1 and 2.

19. Statement of 21 January 1986, Bijl.Hand. II 1985/86 – 19290 No. 8 pp. 11–13.

20. Note accompanying the reply to written questions asked in Parliament, Aanh.Hand. II 1985/86 No. 60 p. 121.

21. Cf., earlier, 17 NYIL (1986) p. 144.

22. Bijl.Hand. II 1985/86 – 19200 V No. 69. N.b. Neither votes on procedural matters, nor any votes on separate paragraphs of resolutions have been included in this survey.

23. Convention for the prevention of marine pollution from land-based sources, 4 June 1974, Trb. 1975 No. 29.

24. Replies of 14 May 1986, Aanh.Hand. II 1985/86 No. 694 p. 1379.

25. Stb. 1892 No. 268.

26. Statement of 23 June 1986, Bijl.Hand. I 1985/86 – 19139 No. 295a.

27. Stb. 1978 No. 737.

28. Trb. 1954 No. 88.

29. Trb. 1967 No. 76.

30. A note contained the following explanation: ‘Contrary to the rules currently in force, this definition equates lasting relationships between Dutch nationals and aliens with marital relationships. This has been done here since it would be advantageous for the immigration rules to be simplified. The feasibility of such simplification will depend on whether sufficiently clear criteria can be found to determine if there is a lasting relationship and on whether certain legal obligations under the law on aliens must be attached to such relationships’.

31. A note contained the following explanation: ‘In view of the efforts to integrate university education and higher vocational education, it will be necessary to examine whether the distinction between categories B and C should be maintained in the final proposals for revision’.

32. Bijl.Hand. II 1985/86 – 19532 No. 2 pp. 30–35.

33. Trb. 1960 No. 40.

34. Statement of 9 July 1986, Aanh.Hand. I 1985/86 No. 64 p. 129.

35. Trb. 1982 No. 20.

36. Stb. 1978 No. 737.

37. Statement of 15 January 1986, Bijl.Hand. I 1985/86 17362 No. 105 p. 1.

38. Statement of 23 July 1986, Aanh.Hand. II 1985/86 No. 923 p. 1834.

39. Bijl.Hand. II 1982/83 – 16102 No. 20.

40. Ibid., p. 10.

41. Bijl.Hand. II 1985/86 – 16102 No. 127 pp. 1–2.

42. Trb. 1973 No. 84.

43. Statement of 14 October 1985, Aanh.Hand. II 1985/86 No. 80 p. 161.

44. Statement of 20 January 1986, Aanh.Hand. II 1985/86 No. 366 pp. 721, 722.

45. Agreement of 30 August 1979, Trb. 1979 No. 142.

46. Statement of 24 June 1986, Aanh.Hand. II 1985/86 No. 846 pp. 1683–1684.

47. Bijl.Hand. II 1985/86 – 18940 No. 24 pp. 2–3.

48. Statement of 11 December 1985, Aanh.Hand. II 1985/86 No. 267 p. 527.

49. Statement of 18 July 1986, Aanh.Hand. II 1985/86 No. 916 pp. 1819–1820.

50. Statement of 25 February 1986, Bijl.Hand. II 1985/86 – 19200 V No. 66 p. 2.

51. See earlier, 11 NYIL (1980) p. 215; 12 NYIL (1981) p. 200; 16 NYIL (1985) p. 360.

52. Bijl.Hand. II 1985/86 – 19637 No. 2 pp. 17–18.

53. Bijl.Hand. II 1985/86 – 19637 No. 2 p. 29.

54. Art. 19, para. 3: ‘The right of every Dutch national to a free choice of work shall be recognized, without prejudice to the restrictions laid down by or pursuant to Act of Parliament’.

55. Trb. 1951 No. 154.

56. Trb. 1969 No. 99.

57. Decision of 16 January 1974, NJ 1974 No. 229.

58. Art. 6, para. 1: ‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right’.

59. Art. 1: ‘With a view to ensuring the effective exercise of the right to work, the Contracting Parties undertake:

1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment;

2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon;

3. to establish or maintain free employment services for all workers;

4. to provide or promote appropriate vocational guidance, training and rehabilitation’.

60. Decision of 17 October 1980, NJ 1981 No. 41.

61. Bijl.Hand. 8606 (R 533) No. 3 p. 2, No. 6 p. 1, and 13932 No. 3 pp. 12 and 13.

62. UN Doc. A/2910/Add.3 p. 14.

63. Cases, inter alia, 2/74, 33/74 and 41/74, Jurispr. (1974) pp. 652, 1313 and 1350.

64. The provisions, however, may be relevant for public service in connection with the prohibition of discrimination, Case 152/73, Jurispr. (1974) p. 153.

65. Cf., Supreme Court, 17 October 1980, NJ 1981 No. 141.

66. Bijl.Hand. II 1985/86 – 19376 No. 2 pp. 14–18.

67. Trb. 1968 No. 92 and 1971 No. 170.

68. Memorandum of 26 September 1985, Bijl.Hand. II 1985/86 – 19232 No. 1 p. 2.

69. Art. 2 reads in full: ‘1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection’.

70. Bijl.Hand. II 1983/84 – 18331 A pp. 1–2.

71. Art. 3: ‘No one shall be subjected to torture or inhuman or degrading treatment or punishment’.

72. Art. 293 of the Penal Code makes the deprivation of life on the express and serious request of the person in question a criminal offence.

73. The statement is contained in a letter by the Minister of Justice to Parliament, of 15 July 1986, Bijl.Hand. II 1985/86 – 18331 No. 43 C and D pp. 12–13.

74. Art. 6 reads in full: ‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the 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.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court’.

75. van Dijk, P., ‘Vereenvoudiging van de afdoening van lichte verkeersovertredingen en artikel 6 van het Europees Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden’Google Scholar (‘Simplification of the handling of minor traffic offences and Article 6 of the European Convention for the protection of human rights and fundamental freedoms’), Bijl.Hand. II 1981/82 – 17478 No. 1 pp. 12–35.

76. Statement of 14 May 1986, Bijl.Hand. II 1985/86 – 16813 (R. 1165) No. 8 pp. 10–11.

77. Art. 4, para. 1, reads in full: ‘With a view to ensuring the effective exercise of the right to a fair remuneration, the Contracting Parties undertake: to recognise the right of workers to remuneration such as will give them and their families a decent standard of living … The exercise of [this right] shall be achieved by freely concluded, collective agreements, by statutory wage-fixing machinery, or by other means appropriate to national conditions’.

78. Act of 27 November 1968, Stb. 1968 No. 657.

79. Statement of 28 February 1986, Bijl.Hand. II 1985/86 – 19052 No. 19 p. 2.

80. Trb. 1962 Nos. 101 and 159.

81. Trb. 1965 No. 40 and 1981 No. 143.

82. See infra.

83. Statement of 25 February 1986, Bijl.Hand. II 1985/86 – 19427 No. 3 pp. 22–25.

84. Statement of 8 March 1983, Bijl.Hand. II 1982/83 – 16644 (R 1158) No. 7 p. 22.

85. Trb. 1984 No. 98.

86. Art. 18 reads in full: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b), it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed’.

87. Trb. 1983 No. 126.

88. Trb. 1985 No. 136.

89. Statement of 5 September 1986, Bijl.Hand. II 1985/86 – 18885 No. 8 p. 6.

90. Trb. 1951 No. 114.

91. Statement of 14 May 1986, Bijl.Hand. II 1985/86 – 17804 (R 1228) No. 10 p. 7.

92. Statement of 18 November 1985, Aanh.Hand. II 1985/86 No. 204 pp. 405–406.

93. Trb. 1951 No. 154.

94. Trb. 1965 No. 170.

95. Statement of 14 February 1986, Aanh.Hand. II 1985/86 No. 448 pp. 885, 886.

96. Art. 54, para. 2(b), provides that anyone who has been deemed legally incompetent by an irrevocable judgment of a court because of mental disorder, shall not be entitled to vote.

97. Statement of 26 November 1985, Bijl.Hand. II 1985/86 – 18973 No. 10 pp. 1–2.

98. See earlier, 17 NYIL (1986) p. 185.

99. Trb. 1984 No. 98.

100. Art. 1 reads in full: ‘(1) No Party shall issue an authorization in respect of an application, or seek registration, for an area included:

(a) within an area which is covered in another application filed in conformity with the agreements for voluntary conflict resolution reached on 18 May 1983 and 15 December 1983 and being still under consideration by another Party;

(b) within an area claimed in any other application which has been filed in conformity with national law and this Agreement,

(i) prior to signature of this Agreement, or

(ii) earlier than the application or request for registration in question, and which is still under consideration by another Party; or

(c) within an authorization granted by another Party in conformity with this Agreement.

(2) No Party shall itself engage in deep seabed operations in an area for which, in accordance with this paragraph, it shall not issue an authorization or seek registration’.

101. Trb. 1983 No. 83, Art. 137, para. 3, reads: ‘No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized’.

102. Reference is here made to Bijl.Hand. II 1982/83 – 17798 (R 1227) No. 3 p. 11.

103. Statement of 5 September 1986, Bijl.Hand. II 1985/86 – 18885 No. 8 pp. 4–5.

104. Trb. 1977 No. 34.

105. Trb. 1977 No. 33.

106. Bijl.Hand. II 1985/86 – 12827 No. 23 pp. 2–3.

107. Stb. 1948 I 284. N.b. the proposed draft Article concerns the dispatch of conscripts for the maintenance of international peace and security within the framework of the United Nations.

108. Art. 43 reads in full:

‘(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 maintaining 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’.

109. van Dijk, P., ‘Deelneming door Nederland aan UNIFIL; een volkenrechtelijke verplichting?’Google Scholar [‘Dutch participation in UNIFIL; an obligation under international law?’] NJB (1979) pp. 337–340.

110. Statement of 17 June 1986, Bijl.Hand. II 1985/86 – 16521 No. 5 p. 12.

111. See earlier, 15 NYIL (1984) p. 366; 17 NYIL (1986) p. 195.

112. Bijl.Hand. II 1983/84 – 18100 V No. 16 pp. 10–11.

113. Bijl.Hand. II 1984/85 – 18600 V/X No. 114 p. 2.

114. Bijl.Hand. II 1985/86 – 15441 No. 36.

115. Stb. 1948 I 284. The proposed draft Article concerns the assignment of conscripts for service outside the Netherlands.

116. Art. 97: ‘1. All Dutch nationals who are capable of doing so shall have a duty to cooperate in maintaining the independence of the State and defending its territory.

2. This duty may also be imposed on residents of the Netherlands who are not Dutch nationals.’ Art. 98: ‘1. To protect its interests, the State shall maintain armed forces consisting of volunteers and conscripts.

2. …

3. Compulsory service in the armed forces shall be regulated by Act of Parliament. The obligations which may be imposed on persons not belonging to the armed forces in relation to the defence of the country shall also be regulated by Act of Parliament’.

117. De Grondwet [The Constitution], vol. 2 (1886) pp. 633–635.Google Scholar

118. Heemskerk, J., De praktijk onzer grondwet [Constitutional practice], vol. 2 (1881) p. 108.Google Scholar

119. Thorbecke, J.R., Aantekening op de grondwet [A note on the Constitution], vol. 2 (1841) p. 234.Google Scholar

120. Op.cit. n. 117, vol. 3, p. 660.

121. Op.cit. n. 117, vol. 2, p. 36.

122. Oud, P.J., Het Constititioneel recht van het Koninkrijk der Nederlanden [The Constitutional law of the Kingdom of the Netherlands], vol. II, 2nd. edn. (1947) p. 362.Google Scholar

123. Bijl.Hand. II 1979/80 – 15467 (R 114) No. 7 p. 3.

124. Statement of 17 June 1986, Bijl.Hand. II 1985/86 – 16521 No. 5 pp. 2–4, 4.

125. By exchange of letters of 4 November 1985, Trb. 1985 No. 145.

126. Bijl.Hand. II 1983/84 – 18277 No. 3.

127. Bijl Hand. II 1985/86 – 19290 No. 4 pp. 4–5.

128. See earlier, 16 NYIL (1985) p. 415. The declaration to be made at the time of ratifying Protocol I reads in full: ‘It is the understanding of the Government of the Kingdom of the Netherlands that the rules of Protocol I relating to the use of weapons were intended to apply and consequently do apply solely to conventional weapons, without prejudice to any other rules of international law applicable to other types of weapons’.

129. Trb. 1978 Nos. 41 and 42.

130. Statement of 16 December 1985, Bijl.Hand. II 1985/86 – 18277 (R 1247) No. 6 pp. 3–4.

131. Bijl.Hand. II 1985/86 – 19200 V No. 38.

132. Trb. 1985 No. 104.

133. Act of 23 April 1969, Stb. 1969 No. 268.

134. Memorandum of 18 August 1986, Bijl.Hand. II 1985/86 – 19624 No. 1 pp. 3–6.

135. Statement of 18 February 1986, Bijl.Hand. II 1985/86 p. 3464.

136. Trb. 1986 No. 65.

137. Convention of 2 April 1957, Trb. 1957 No. 61, as modified by the Supplementary Conventions of 28 October 1959, Trb. 1959 No. 173, and of 3 February 1965, Trb. 1965 No. 33.

138. Statement of 26 August 1986, Bijl.Hand. II 1985/86 – 19614 No. 1 pp. 2–3.

139. See earlier, 16 NYIL (1985) p. 351.

140. Trb. 1980 No. 166.

141. Art. 7 para. 1(e)(ii): ‘The intentional commission of a threat to commit a theft or robbery of nuclear material in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act, shall be made a punishable offence by each State Party under its national law’.

142. The proposed reservation reads in full: ‘Since the offences contemplated in Article 7 paragraph 1 sub e point (ii) fail to fulfil the conditions under which they may, by themselves, lead to extradition, the Government of the Kingdom of the Netherlands reserves the right to exclude the offences contemplated in Article 7, paragraph 1 sub e point (ii) from the application of the first and second sections of Article 11’.

(Art. 11, paras. 1 and 2, read in full: ‘1. The offences in article 7 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include those offences as extraditable offences in every future extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may as its option consider this Convention as the legal basis for extradition in respect of those offences. Extradition shall be subject to the other conditions provided by the law of the requested State’.)

143. Reference here is made to Norton, A.R. and Greenberg, M.H., eds., Studies on Nuclear Terrorism (1979) pp. 429–441.Google Scholar

144. Statement of 31 December 1985, Bijl.Hand. II 1985/86 – 18435 (R 1259) No. 6 pp. 2–3.

145. Stb. 1978 No. 581. Article 4(d) states that no information is given if and when that is detrimental to the good relations of the Netherlands with other countries.

146. Reference here is made to the Memorandum of Reply, Bijl.Hand. II 1967/77 – 13418 No. 5 p. 26.

147. Statement of 9 December 1983, Aanh.Hand. II 1983/84 No. 236 pp. 489–490.

148. Trb. 1985 No. 127.

149. Art. 6(h): ‘The Zimbabwean Government shall with regard to exemption from legal process in respect of words spoken or written and acts performed by them in their official capacity in the course of operations covered by the provisions of this Agreement treat the Netherlands volunteers no less favourably than those of the most favoured nation’.

150. Art. 9: ‘The Zimbabwean Government shall indemnify and hold harmless the Netherlands Government, the Organisation [of Netherlands Volunteers] and the members of the Organisation against liability suits, actions, demands, damages, costs or fees on account of death or injury to persons or property or any other losses resulting from or connected with any act or omission performed in the course of operations covered by the Agreement except in cases of wilful misconduct or gross negligence’.

151. Statement of 30 September 1985, Bijl.Hand. 1985/86 – 19244 No. 1 p. 3.

152. Agreement by exchange of letters, of 19/27 August 1985, Trb. 1985 No. 139.

153. Stb. No. K511.

154. Memorandum of 8 January 1986, Bijl.Hand. II 1985/86 – 19378 No. 1 p. 2.

155. See earlier, 15 NYIL (1984) p. 289; 16 NYIL (1985) p. 343.

156. Statement of 31 January 1986, Aanh.Hand. II 1985/86 No. 405 p. 799.

157. Trb. 1964 No. 149.

158. Bijl.Hand. II 1985/86 – 19435 No. 1 p. 7.