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The Netherlands Constitution and International Law*

Published online by Cambridge University Press:  20 April 2017

Jonkheer H. F. van Panhuys
Jonkheer H. F. van Panhuys*
Affiliation:
Netherlands Ministry of Foreign Affairs
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Extract

On June 22 of this year important amendments to the Netherlands Constitution concerning the administration of foreign affairs came into force. As those amendments will not only be of interest to students of Netherlands constitutional law but also to those who are interested in the problem of the relationship between international and municipal law and modern tendencies in national constitutions in this respect, it might be useful to give a brief survey of these amendments and their background.

Type
Research Article
Information
American Journal of International Law , Volume 47 , Issue 4 , October 1953 , pp. 537 - 558
Copyright
Copyright © American Society of International Law 1953

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Footnotes

*

This paper has been written by the author in his private capacity.

References

1 Cf., inter alios, Preuss, Lawrence, “The Relation of International Law to Internal Law in the French Constitution,” this Journal, Vol. 44 (1950), p. 641 Google Scholar et seq.; B. Mirkine-Guetzévitch, cited by Preuss, loc. cit., note 1; Rice, William G., “The Position of International Treaties in Swiss Law,” this Journal, Vol. 46 (1952), p. 641 Google Scholar et. seq.; Scelle, Georges, “ De la prétendue inconstitutionnalié interne des Traités (à propos du Traité sur la Communauté européenne de défense),” Revue du Droit Public et de la Science Politique, No. 4 (Oct.-Dec. 1952), p. 1012 Google Scholar et seq.; de Visscher, Paul, “ Les tendances internationales des constitutions modernes,” Recueil des Cours, Académie de Droit International, 1952, Vol. 80 (I), p. 511 Google Scholar et seq., who frequently referred to the new Dutch constitutional provisions; Münch, P., “ Staatsverfassungen und Friedenspolitile,” Die Friedens-warte, Vol. 50 (1951), No. 4 Google Scholar; Constantopoulos, “The Relation of the Law of Nations to Constitutional Law and the New Constitutions of Germany,” Revue Hellénique de Droit International, Vol. 5, Nos. 1–2 (January–June, 1952)Google Scholar.

2 The English text of the Netherlands Constitution as it was before the revision is to be found in Amos J. Peaslee, Constitutions of Nations, Vol. II, p. 513 et seq.

3 I.e., the Netherlands Parliament.

4 The Dutch text of the Amendment is to be found in Staatsblad (Bulletin of Acts, Orders and Decrees), 1953, No. 261. The text of the Constitution as amended will be found in No. 295, ibid.

5 Cf. on the outlawry of aggressive war and its historical background, the recent publication of Wehberg, , Krieg and Eroberung in Wandel des Völkerrechts (Frankfurt-am-Main and Berlin, Metzner Verlag, 1953)Google Scholar.

6 The Van Eysinga committee did not make a distinction between cases in which participation in collective security actions is obligatory and other cases. If participation is not obligatory, one might doubt whether a mere “consultation” with Parliament before giving military assistance is sufficient. For in that event the Government has also to decide whether and not merely how it will participate in the action.

6a The Netherlands was not the first country to recognize in its Constitution the outlawry of aggressive war. Such recognition, even in more explicit terms, will be found, for example, in the French, Italian and German constitutions. Cf. Münch, loc. cit.

7 The Dutch text of the declarations mentioned in the text will be found in François, , Handboek van het Volkenrecht (1950), Vol. II, pp. 314 and 317 Google Scholar.

8 Cf., Hans Kelsen, Principles of International Law (1952), pp. 68–69; and this Journal, Supp., Vol. 16 (1922), pp. 10–13.

9 See, on tendencies in various countries to “evade” parliamentary approval by concluding agreements less formal than treaties, de Visscher, loc. cit., p. 537 et seq.

10 Cf. the formula inserted in some multilateral treaties, mentioned by Liang, Yuen-li in this Journal, Vol. 44 (1950), pp. 344–346 Google Scholar.

11 Act of Dec. 24, 1947 (Staatsblad, No. H. 452).

12 As a rule public opinion in The Netherlands is strongly opposed to secret diplomacy, but it cannot be denied that sometimes secret agreements are unavoidable.

13 Cf. the annexes to the proceedings of the “Staten-Generaal,” session 1951–1952, Second Chamber, Bill No. 2374, No. 3, p. 14.

14 Cf. on the legal authorization of the Crown to enter into agreements of a specified kind, p. 545, above.

15 Staatsblad, 1924, No. 279.

16 Whereas in the period between 1815 and 1850 the average number of treaties concluded per annum was less than five, this figure increased to nearly 12 in the period 1850–1900, to approximately 31 in the period 1900–1940, and to 90 in the postwar period.

17 In Great Britain the delay is 21 days. Cf. McNair, The Law of Treaties (Oxford, 1938), pp. 32–33.

18 In our opinion this argument is not very conclusive: the supremacy of international law over the constitution is one thing (see Section V below) and the question whether a certain constitution limits the subject-matters on which the treaty-making organs may make agreements, is another. International law does not, in our opinion, forbid sovereign states to limit the powers of their treaty-making organs. The only question which is of importance here is whether a certain constitution does or does not contain such limitations.

Quite another question still is the validity under international law of international agreements made in excess of the constitutional limits, but that, of course, is not the point here.

19 The Netherlands Constitution may be amended in the following way:

1. First of all, a Bill recommending the Amendments and containing their texts has to be approved by both Chambers of the “Staten-Generaal,” the Second Chamber having the right to propose modifications.

2. After the enactment of the Bill, both Chambers are dissolved.

3. After the re-election of Parliament, a Bill containing the Amendments must be approved by the Chambers with a two-thirds majority of the votes cast in each of the Chambers, none of them having the right to propose modifications. Finally, the Amendments are promulgated by the Crown.

Article 60 of the new Constitution, in simplifying this procedure for the approval of treaty provisions deviating from the Constitution, maintains the most substantial safeguard against inconsiderate constitutional reforms, to wit, the qualified majority referred to under 3.

20 Session 1951–1952, Bill No. 2374, First Chamber, No. 113a, p. 6.

21 See below, p. 557; for the distinction between intrinsic and extrinsic unconstitutionality, see Preuss, loc. cit., p. 648.

22 Cf. the amending Bill proposed by the Government on Jan. 23, 1952 (Annexes to the Proceedings of the “Staten-Generaal,” session 1951–1952, Second Chamber, Bill No. 2374, Nos. 7 and 8).

23 Cf. Art. 24 (par. 1) of the German Constitution, where it has been laid down that by virtue of a law sovereign rights (Hoheitsrechte) can be conferred on international organizations. Whereas that paragraph refers to the conferment of sovereign rights (übertragen), the second paragraph provides for the limitation of the sovereign rights of the Federal Republic (Beschränkungen seiner Hoheitsrechte) within the framework of collective security systems. The last paragraph resembles the clause contained in the preamble of the French Constitution:—”On condition of reciprocity, France accepts the limitations of sovereignty necessary to the organization and defense of peace” (translation by Peaslee, loc. cit., p. 9). See also Scelle, loc. cit. p. 1019.

Though the new Dutch provisions do not, like the German Constitution (Art. 24) and the French Constitution (Art. 27), prescribe that the conferment has to take place by virtue of an Act, this will nearly always be the case because such international agreements will as a rule not fall under the scope of the exceptions enumerated in Art. 62 of the Netherlands Constitution.

In par. 20 of the Danish Constitution, as amended on June 5, 1953, it is said that the constitutional powers of Danish authorities can be conferred on international organizations which have been established by mutual agreements with other states in the interest of international legal order and collaboration. Such conferment has to take place by an Act to be approved by a five-sixths majority of the members of the “Rigsdag” (the Danish Parliament). If the Bill is approved by a number of votes less than that majority but sufficient for the approval of normal bills, and if the Government maintains the Bill, it will be submitted for approval or rejection to the electorate (the majority of the votes cast by the electors, including 30% of the persons entitled to vote, is decisive). The Act must prescribe the limits within which the constitutional powers may thus be conferred. This whole procedure seems to be very rigid.

24 On the legal implications of this expression in general, see de Visscher, loc. cit., pp. 559–561.

25 Cf. Preuss, loc. cit., p. 646.

26 Nederlandse Jurisprudentie, 1949, No. 87, and 1950, No. 504.

27 For case law and doctrine in The Netherlands relative to the matters discussed in the text, see the very helpful survey given by Van der, Zanden, Verdrag gaat voor wet, ook in nationale rechtsbetrekhingen (Treaty prevails over Statute in International and in Municipal Legal Relations) (Zwolle, Holland, 1952)Google Scholar, with a summary in English and French; reviewed in this Journal, below, p. 729.

28 The question might also arise in cases in which the legislator in enacting the statute did not realize at all that a previous treaty obligation existed which the statute might violate. Those who are generally opposed to the principle of judicial review of statutes as to their conformity with international law would perhaps have less objection to this kind of judicial control in such cases, for in that event the courts, in correcting the legislator, would virtually lay down what the legislator would have done, had he known of the existence of the treaty. Cf. a statement of the Solicitor General in Boon and Société Anonyme Chantiers Navals du Rupel v. Staat der Nederlanden (Supreme Court, Jan. 25, 1952, N. J. 1952, No. 125), where the question was raised whether recent Netherlands legal provisions were or were not in conflict with previous treaties concerning navigation on the Rhine. The Solicitor General held that there should be judicial review only if the conviction by which the legislator was led in enacting the more recent statute could not be deemed well considered. During the parliamentary debate in the first reading, the statement of the Solicitor General was cited with approval both by the members of Parliament advocating the supremacy of international agreements and the Government (each in the defense of its own case!) (Proceedings, Second Chamber, 1951–1952, pp. 1883, 1911).

29 See Van der Zanden, referred to in note 27 above.

30 Thus the French Constitution, in which it has been laid down that diplomatic treaties duly ratified and published shall have the force of law even if they are contrary to internal French legislation, and that they shall require for their application no legislative acts other than those necessary to ensure their ratification (Art. 26). In Art. 28 of that constitution it is stated that treaties duly ratified and published have authority superior to that of French internal legislation. There are two differences between these French constitutional provisions and the new Netherlands provisions (Arts. 65 and 66) :

1. Under the French Constitution the superiority is only accorded to treaties which have been duly ratified, while in Art. 27 it has been laid down that, inter alia, treaties amending internal legislation shall not become final until they have been ratified by virtue of an Act. Art. 26 therefore gives only superiority over contrary legislation to such treaties as have received the approval of the National Assembly (cf. Preuss, loc. cit., p. 654). The new Dutch provisions, however, refer to international agreements irrespective of whether they have or have not been approved by Parliament.

2. However clear the text of the French Constitution may be, it seems that there has still been left room for some doubt, at least in cases in which the later statute would be in overt conflict with the previous treaty, as to how far the norm laying down the superiority of treaties addresses itself only to the executive or to the judiciary as well (cf. Preuss, loc. cit., p. 644 et seq., and de Visscher, loc cit., pp. 565–566). This doubt cannot exist under the new Dutch provisions.

In Art. 25 of the German Constitution, Bundesgesetzblatt, May 23, 1949, p. 1, it has been laid down that the general principles of international law are a part of federal law, taking precedence of statutes and creating rights and duties for the inhabitants of the Federal Republic. It is not clear, however, whether this supremacy of international law is also recognized as far as the provisions of the Federal Constitution itself are concerned. This might be a difference from the new Netherlands provisions. On the other hand, the German text seems to have a wider scope than the Dutch provisions, as it does not confine itself to treaties, but refers to the general principles of international law, this term evidently including customary law. Though there might be some doubt as to whether the article refers to treaties at all, this question must apparently be answered in the affirmative (cf. Van der Zanden, op. cit., pp. 55–56).

31 Thus in England statutory law, if overtly in conflict with international law, is absolutely binding upon the courts, cf. Oppenheim, International Law (7th. ed.), Vol. I, p. 39. In the United States there is a well-settled jurisprudence to the effect that a treaty is supplanted as law in that country by a subsequent Act of Congress intended to have that effect (Head Money Cases, 112 U. S. 580; Chae Chang Ping v. United States, 130 U. S. 581; Cook v. United States, 288 U. S. 102, and this Journal, Vol. 27 (1033), p. 599). The U. S. Supreme Court even seems to regard treaties as subordinate to the Constitution and subject to judicial review; cf. the statement by the U. S. Attorney General before the Senate Committee on the Judiciary on S.J. Res. 1 and S.J. Res. 43 (83rd Cong.), pp. 13, 14, and the leading cases there mentioned. On the other hand, of course, the supremacy of treaties over the large field of State law has been laid down in the U. S. Constitution. According to Swiss case law, the position of treaties in that country seems to be rather the same as in the United States, cf. Rice, loc. cit., p. 665.

32 Cf. in this connection a decision of the Civil Tribunal of the Seine, October 27, 1926, in the case of Chenouard v. Demoiselle Denis, cited by Preuss, loc. cit., p. 657. That court apparently concluded from the fact that the judge has to be considered as an internal organ, that he could not control the international validity of the law.

33 Of quite a different tenor is the draft amendment to the U. S. Constitution as agreed upon by the Judiciary Committee of the Senate on June 4, 1953. It is proposed in this amendment to provide that a treaty provision which conflicts with the Constitution shall not be of any effect (sec. 1) and that a treaty shall become effective as internal law only through legislation which would be valid in the absence of treaty (sec. 2)..

Under the third section Congress would be empowered to regulate all executive and other agreements with any foreign Power or international organization. Cf., on the other hand, the arguments put forward by John Foster Dulles, Secretary of State, before the Judiciary Committee when advising not to accept the amendment as it was formulated in the draft resolutions before the Committee (S.J. Res. 1 and S.J. Res. 43). Cf. also S.J. Res. 130 (82nd Cong.) and S.J. Res. 2 (83d Cong.) Cf. on the arguments of Mr.Dulles, , the Department of State Bulletin, Vol. 28, No. 721 (April 20, 1953)Google Scholar. See also the statements of the Attorney General referred to in note 31 above. When assessing these draft amendments one should, of course, not lose sight of the fact that a large federal state like the United States is faced with particular problems unknown to a small unitary state like The Netherlands.

34 Proceedings, “Staten-Generaal,” session 1951–1952, Second Chamber, Bill No. 2374, p. 1958, and the Annexes referred to in note 22 above.

35 Cf. p. 551 above.

36 Cf. in this connection the clauses contained in the treaties on the European Coal and Steel Community (Art. 14), and the European Defense Community (Art. 27) conferring on the executive organ of the Community concerned the power to issue: (1) advisory opinions which are not binding; (2) recommendations binding upon the states as to their objectives, but leaving it to the states to choose the means of implementation; (3) decisions having binding force in all their elements. The last category particularly will be of interest here.

37 Cf. also Hans Kelsen, op. cit., p. 314.

38 Cf. also Van der Zanden, op. cit., p. 24.