On 2 December 2004, the UN General Assembly adopted resolution A/Res/59/38 concerning the new United Nations Convention on Jurisdictional Immunities of States and Their Property without vote. This Convention constitutes the result of 27 years of work within the ILC and the 6th Committee of the General Assembly. It covers the immunity of foreign states and their property from the jurisdiction of the courts of a forum state. Since the evolution of the relative immunity concept in the judicial practice of states, according to which states no longer enjoy absolute, but only relative immunity for acta jure imperii, national courts have set up different criteria for determining the immunity of foreign states. The present Convention now aims at harmonizing state practice in this field and thus at enhancing legal certainty for both states and private contractors in their – mostly economic – relations. In the discussions during the elaboration of this text, the five most disputed issues regarding state immunity have turned out to be the notion of the state, the definition of the term ‘commercial transaction’, state enterprises, employment contracts as well as measures of constraint. This article presents the drafting history as well as the provisions of the Convention and makes the first attempt to discuss its main provisions. It provides the reader also with the necessary background information that will not easy to be found elsewhere.

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called ‘founding treaties’. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties.

European treaty revision was a success story in what could be called its golden age (1985–2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the ‘double lock’ of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.

2004 was an eventful year for diplomatic protection. The ILC adopted at first reading a full set of draft articles. At the same time, some opportunities to clarify contentious issues concerning the relation of diplomatic protection with human rights law were missed. In the Avena decision, the ICJ made a step backwards, compared to LaGrand, with regard to the characterisation of the applicant's action as diplomatic protection: the Court referred to the ‘inter-dependence’ of the rights of the State and the rights of the individual and it did ‘not find necessary to deal with Mexico's claims of violation under a distinct heading of diplomatic protection’. The Court also failed to address thoroughly Mexico's contention that Art. 36 VCCR individual right to notification can be characterised as a human right: it only provided a clue as to its position when it stated that ‘neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in that regard.’ The present article looks at the case law of the ICJ in the field of diplomatic protection to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. The discussion is conducted in the context of the ILC project, to assess potential interactions between the ILC work and the ICJ case law. The main argument the article presents is that, whereas the Court is hesitant in leading to a jurisprudential elaboration of diplomatic protection, the remedies ordered show a willingness of the Court to make diplomatic protection instrumental to the protection of human rights.

This article attempts to demonstrate that the law of self-defence in the UN-Charter is uncertain. Nobody doubts that the Charter permits self-defence, but the precise modalities of the right are unclear. This is not an exposé of the whole spectrum of issues that can arise or have arisen. Rather, the article considers a few examples and analyses the structure of the arguments scholars and tribunals employ in order to find out where our limits of ‘legal cognition’ lie. Several topics are examined, inter alia, whether an ‘armed attack’ is a necessary condition for the exercise of self-defence under the UN-Charter; the actions qualifying as armed attack; whether an armed attack has to occur or whether the victim state merely reasonably has to expect it to occur; and whether individuals can commit an armed attack. It will become clear throughout the article that the closer one looks at the law of self-defence, the less certain the law becomes. I submit that the uncertainty of the law on self-defence is caused by a lack of legal regulation – there is only so much that Article 51 can tell us. Scholars importing their own ideas of what scope self-defence should have do not enhance our understanding of the positive law, their designs simply are not law.

Although, in principle, states decide completely autonomously which persons are given their nationality, they can limit their autonomy by concluding treaties with each other. Thereby they accept certain international obligations. This article contains critical reflections on the nationality law of the Netherlands in international perspective. The authors provide an overview of the treaties that are relevant in the field of nationality law and that have been ratified by the Netherlands. They proceed by describing the nationality law of the Netherlands. The various grounds for the acquisition – ex lege, by declaration of option and by naturalisation – and loss of Netherlands nationality are discussed. Special attention is paid to the relation of the new provisions of the Nationality Act with the international obligations deriving from the treaties that have been ratified by the Netherlands. The authors conclude that, although some modifications to the Nationality Act that were realised in 2003 were aimed specifically at bringing Netherlands nationality law better in compliance with international obligations, there are still several points which are problematic in perspective of international law.

This article explores the key provisions of the International Crimes Act 2003 (ICA 2003). The Act covers the most serious crimes under international law which regard gross human rights violations and violations of international humanitarian law. It penalizes crimes against humanity beyond those committed in the context of World War II and meticulously describes war crimes, whereas the previous Wartime Offences Act 1952 simply referred to ‘violations of the laws and customs of war’. Universal jurisdiction is established over the crimes covered by the ICA 2003 including genocide and torture, the latter as defined by the 1984 UN Convention against Torture.

The ICA 2003 carefully followed the Rome Statute as far as the definition of the crimes is concerned. The definition of genocide for example excludes social and political groups. In addition, the Act follows the distinction drawn in the Rome Statute between war crimes committed in an international armed conflict and those committed in armed conflicts not of an international character, enumerating significantly less acts as specific crimes in the latter situation. As far as immunities are concerned, the Act copies the essence of the ICJ Judgment in the Yerodia case without the legislature explaining what ‘as long as they are in office’ should mean. The ICA 2003 restricts the application of universal jurisdiction to suspects who are present in the Netherlands at the time of their arrest, limiting the possible contribution by the Netherlands' authorities to the fight against impunity of crimes under international law.

1. Part One: International Law in General

2. Part Two: Sources of International Law

3. Part Three: Subjects of International Law

4. Part Four: The Position of the Individual in International Law

5. Part Five: Organs of the State

6. Part Six: The Law of Treaties

7. Part Seven: Personal Jurisdiction of the State

8. Part Eight: State Territory and Territorial Jurisdiction

9. Part Nine: Seas, Waterways

10. Part Ten: The Air Space, Outer Space

11. Part Eleven: Responsibility

12. Part Twelve: Pacific Settlement of Disputes

13. Part Thirteen: Coercion and Use of Force Short of War

14. Part Fourteen: Armed Conflicts (War)

15. Part Fifteen: Neutrality, Non-Belligerency

16. Part Sixteen: Legal Aspects of International Relations in Various Matters

Although this sets out to be an annual survey, it may also include material which dates from a different parliamentary year from that given in the heading. This has proved to be inevitable in those cases when texts do not become available to the editor until long after their original date of drafting; written submissions to international organizations made by the Netherlands representatives frequently fall into this category.

Most of the information is derived from the Reports of Parliament which are available in Dutch on <www.overheid.nl/op/index.html>. The Yearbook surveys are also available in a consolidated way in a database on <www.asser.nl/pil/index.htm>.

This survey covers the treaties, international agreements, and other international instruments mentioned in the ‘Tractatenblad van het Koninkrijk der Nederlanden’ – Treaty Series of the Kingdom of the Netherlands (abbr.: Trb.). Its purpose is to record the legal consequences of such agreements and instruments for the Netherlands, and Netherlands State acts in respect of them, such as signature, parliamentary approval, ratification, entry into force, provisional application, extension or limitation of territorial application, termination and abrogation. Signature by the Netherlands, however, is mentioned separately only if, in the case of multilateral treaties, such signature has taken place on a date different from the official date of conclusion of the treaty.

This survey covers municipal regulations relevant to international law that could not be dealt with adequately in the State Practice section. Translations of all or part of the text are usually given, together with descriptive or analytical notes where appropriate. The survey includes one regulation of 2001 and one of 2002.

The information is derived from the Staatsblad and Staatscourant which are available in Dutch on <www.overheid.nl/op/index.html>. The Yearbook surveys are also available in a consolidated way in a database on <www.asser.nl/pil/index.htm>.

The decisions in this survey are taken from the documentation system of the Public International Law Department of the T.M.C. Asser Instituut, which now contains abstracts from approximately 5650 decisions dating from 1839 to the present day (cf., database on <www.asser.nl/pil/index.htm>)For the period covered updated by research associate M. Ketelaars.. Most of the texts are taken from various Reports and Journals, but the Institute also receives the texts of decisions involving questions of public international law directly from the Courts concerned by special agreement between the Institute, the Ministry of Justice, and the Courts. If the decision has not (yet) been published elsewhere, the source of the text is given as ‘Institute's Collection’ followed by the administrative sequence number.

This survey is intended to provide information for international lawyers and law students, both in the Netherlands and abroad, on materials concerning international law published in and outside the Netherlands by Dutch authors. A few articles not meeting these criteria are also included. Furthermore, ‘international law’ has been interpreted widely, so as to include related matters, if the work in question deals with international law considerations. Fiscal law, polemology and specific regulations under European law are generally not included. The survey lists books, articles, inaugural lectures, dissertations and reports.

The Yearbook surveys are also available in a consolidated way in a database on <www.asser.nl/pil/index.htm>.