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Netherlands state practice for the parliamentary year 1975 – 1976

Published online by Cambridge University Press:  07 July 2009

Ko Swan Sik  and
S.A.M. Oostvogels
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Netherlands Yearbook of International Law , Volume 8 , December 1977 , pp. 155 - 225
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Copyright © T.M.C. Asser Press 1977

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References

1. Verslag over de Dertigste Zitting van de Algemene Vergadering der Verenigde Naties (Ministry of Foreign Affairs publication, No. 116, 1976, hereafter abbreviated: Dertigste Zitting), p. 312. Also in Stc. of 7 November 1975, No. 216, pp. 1,7.

1a. As adopted at its twenty-third session, A/CONF.67/4, included in United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, vol. II, p. 5 et seq. Also in the Report of the ILC on the work of its twenty-third session (1971), A/8410/Rev. 1, included in ILC Yearbook 1971 vol. 2 Part One, p. 278 et seq.

2. Statement at the 8th plenary meeting, 11 March 1975, Official Records (cited in n. 1a) vol. I, p. 32 (A/CONF.67/SR.8).

3. Reply to written questions, 19 July 1976, Aanh.Hand. II 1975/76 No. 1451, p. 2885.

4. Dated 2 September 1975, U.N. Doc. A/10198 pp. 17–19; 7 N.Y.I.L. (1976) pp. 235–239.

5. The text of this draft article and the explanatory note reads:

“Multilateral treaties of universal character

“1. Any multilateral treaty of universal character which at the date of a succession of States is in force in respect of the territory to which the succession of States relates shall remain in force between the newly independent State and the other States parties to the treaty until such time as the newly independent State gives notice of termination of the said treaty for that State.

“ “2. Reservations to a treaty and objections to reservations made by the predecessor State with, regard to any treaty referred to in paragraph 1 shall be in force for the newly independent State under the same conditions as for the predecessor State.

“3. The consent of the predecessor State, under a treaty referred to in paragraph 1, to be bound by only a part of the treaty; or the choice by the predecessor State, under a treaty referred to in paragraph 1, of different provisions thereof,

“Shall be in force for the newly independent State under the same conditions as for the predecessor State.

“4. Notice of termination of a treaty referred to in paragraph 1 shall be given by the newly independent State in accordance with article 17 (article 21 of the final draft).

“5. A treaty referred to in paragraph 1 shall cease to be in force for the newly independent State three months after it has transmitted the notice referred to in paragraph 4.”

The foregoing text was accompanied by a proposed “new paragraph for inclusion in article 2” reading as follows:

“(x) ‘multilateral treaty of universal character’ means an international agreement which is by object and purpose of world-wide scale, open to participation by all States, concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

The explanatory note on the proposal concerning article 12bis reads as follows:

“It is, of course, clear to the members of the Commission by this time that no multilateral treaty can be considered to be in force from the date of succession unless, between the date of succession and the date of notification of succession to it, it has been applied by the newly independent State. In other words, a treaty cannot be given retroactive force. It is possible and permissible to provide that a multilateral treaty shall be deemed to be in force from the date of succession for the newly independent State and for any other party to the treaty if, by their conduct towards each other, they should be deemed to have expressed the necessary consent. However, such cases will obviously be the rare exception.

“It is nevertheless of the utmost importance to the newly independent State and to the international community as a whole that such multilateral universal conventions as the humanitarian conventions, the ILO conventions, the Covenants on Human Rights, the Universal Postal Convention and the like, the Treaty banning nuclear weapon tests, the Treaty on the Non-Proliferation of Nuclear Weapons, the Treaty on the peaceful uses of outer space and so on and so forth, if they have already been applied in respect of the territory to which the succession relates, should not cease to be in force for the newly independent State.

“It is taken as axiomatic that this is clearly in the interests both of the newly independent State and in those of the community of States as a whole.

“However, it is also important not to impair the clean-slate principle. This last condition will be met if the newly independent State reserves the right to declare any such multilateral universal convention, at any time (within a reasonable time-limit), terminated for that State.”

6. Verbatim text in Dertigste Zitting, p. 633; Summary in A/C.6/SR.1535.

7. Statement of 14 October 1975, Dertigste Zitting, pp. 514–515; also in Stc. 22 October 1975 No. 204, p. 3. Summary Records in GAOR, Thirtieth Session, Third Committee, pp. 88–89 (A/C.3/SR.2129and Corr. 1).

8. Operative paragraph 1: “Reaffirms the legitimacy of the peoples' struggle for independence, territorial integrity and liberation from colonial and foreign domination and alien subjection by all available means, including armed struggle.”

9. Explanation of vote, 16 October 1975, Dertigste Zitting, p. 516; also in Stc. 27 October 1975 No. 207, p. 1. Summary Records in GAOR, Thirtieth Session, Third Committee, pp. 99–100 (A/C.3/SR.2132).

10. Cf., 4 N.Y.I.L. (1973) pp. 315–316; 7 N.Y.I.L. (1976) pp. 245–246.

11. Statement of 17 November 1975, Dertigste Zitting, pp. 620–621.

12. The proposal dated from 6 July 1975. The first such Conference took place in Rambouillet, France, in November 1975, with the additional participation of Italy.

13. Statement in the Second Chamber, 11 November 1975, Hand. II 1975/76, p. 1025.

14. Third United Nations Conference on the Law of the Sea, Official Records, vol. 6, p. 119Google Scholar (Doc.A/CONF.62/48,pp. 2–3).

15. A/CONF.67/L.2 and Add. 1, included in: United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, vol. II, pp. 195–196.Google Scholar

16. Statement at the 13th plenary meeting, 13 March 1975, id. vol. I, p. 62 (A/CONF.67/SR.13). The draft resolution was adopted by 53 votes in favour, 5 against, with 15 abstentions (incl the Netherlands).

17. Operative paragraph 2 of section I of Resolution 3295 (XXIX) of 13 December 1974 on the Question of Namibia reads: “(2) Reiterates that the national liberation movement of Namibia, the South West Africa People's Organization, is the authentic representative of the Namibian people…” The Netherlands abstention on the resolution was caused, inter alia, by the fact that the above paragraph refuses to consider other organizations. See Verslag over de Negenentwintigste Zitting van de Algemene Vergadering der Verenigde Naties, (Ministry of Foreign Affairs publication No. 109, 1975) p. 164.Google Scholar

18. Statement by the Netherlands representative in the Fourth Committee of the UN General Assembly, 21 October 1975, Dertigste Zitting, pp. 548–549.

19. This Article reads: “Any person who recruits another person for foreign military service without Royal permission will be punished…”

20. Statement in the Second Chamber, 5 February 1976, Hand. II 1975/76, pp. 2661–2662.

20a. Note from the State Secretary to the Second Chamber, 26 February 1976, Bijl. Hand. II 1975/76 – 13760 No. 6. The text of a model letter of warning is reproduced in id. No. 7.

21. Trb. 1975 No. 133.

22. Cf., Bos, M., “Surinam's road from self-government to sovereignty”, 7 N.Y.I.L. (1976) pp. 131–155.Google Scholar

23. Explanatory note by the Minister of Justice ad interim and the Minister for Foreign Affairs ad interim, 10 September 1976, Bijl.Hand. II 1975/76 – 14048 No. 1, pp. 2–3.

24. Stc. 1952 No. 132. Cf., 5 N.Y.I.L. (1974), p. 306, n. 29.

25. Art. 7 of the Nationality Act reads: “Netherlands nationality is lost:…(3) by the acquisition of another nationality according to the wishes of the person concerned; a Dutch woman will not lose Netherlands nationality under this rule for the sole reason that she has not availed herself of the right to renounce another nationality which she has acquired by the fact of her marriage.”

Art. 8a reads: “A Dutch woman who is married to an alien and who posseses a nationality in common with her husband, will lose Netherlands nationality by giving notice of a wish to do so to the authority mentioned in Art. 22.”

26. Art. 20 paragraph 2 reads. “Subject to Art. 22 no passport will be issued to any person who is already a holder of a passport or any other travel document, regardless of its validity, or who is included in the passport of another person.”

Art. 22 reads: “(1) If the applicant possesses Netherlands nationality and another nationality, and holds a passport or other kind of travel-document issued by the State of that other nationality, a Netherlands passport may be issued proyided the person cannot reach his travel-destination with the foreign document and provided there are compelling reasons which prevent him from surrendering that document. (2)…”

27. Reply to written questions, 9 May 1975, Aanh. Hand. II 1974/75 No. 1100, p. 860.

28. See, 7 N.Y.I.L. (1976), p. 260.

29. Statement of 15 October 1975, Derrigste Zitting, pp. 514–515; also in Stc. of 22 October 1975, No. 204, p. 3.

30. Statement of 11 November 1975, Dertigste Zitting, p. 505. Summary Records in GAOR, Thirtieth Session, Third Committee, pp. 232–233 (A/C.3/SR.2154).

31. Statement of 13 October 1975, Dertigste Zitting, p. 370. See also, Doc. A/SPC/SR 955, pp. 27–28.

32. Id.

33. The draft had been prepared in the Third Committee and was referred to as resolution III. See, A/10320. The draft later became Resolution 3379 (XXX).

34. Statement of 10 November 1975, Dertigste Zitting, p. 489.

35. The draft later became Resolution 3411 (XXX)D.

36. The preambular paragraph reads:

“Reaffirming the legitimacy of the struggle of the South African people, under the leadership of their national liberation movements, by all means possible, for the total eradication of apartheid and for the exercise of their right to selfdetermination.”

The two operative paragraphs read:

“2. Reaffirms that the establishment of bantustans is a measure essentially designed to destroy the territorial integrity of the country in violation of the principles enshrined in the Charter of the United Nations;

3. Calls upon all Governments and organizations not to deal with any institutions or authorities of the bantustans or to accord any form of recognition to them.”

37. Statement of 30 October 1975, Dertigste Zitting, p. 382; also in Stc. of 5 November 1975, No. 214, p. 3.

38. Statement of 10 November 1975, Dertigste Zitting, p. 506.

39. E/AC.7/SR 778, p. 8. See also the statement of the Netherlands representative to the UN Commission on Human Rights, of 28 February 1975, in E/CN.4/SR.1325.

40. Explanatory Memorandum submitted on 2 April 1976, Bijl. Hand. II 1975/76–13872 No. 3, p. 12.

41. These rights are: (1) the right to legal aid; (2) the right to employment and to a reasonable standard of living and the right to safe working conditions, as well as the right to participate in the management of enterprises; (3) the right to a fair distribution of wealth and to social security; (4) the right to a proper living environment; (5) the right to a proper system of public health care, to adequate housing and the right of access to proper opportunities for social and cultural development and recreation; the right to education and training in accordance with the individual's personal and social needs. See, Bijl. Hand. II 1975/76–13873 No. 2.

42. Explanatory Memorandum submitted on 2 April 1976, Bijl. Hand. II 1975/76–13873 No. 3, p. 4.

43. The proposed reservations together with explanatory notes were submitted to Parliament in Bijl. Hand. II 1975/76–13932 (R 1037) No. 4. They concern:

Civil and Political Rights Covenant: Article 10 (with regard to paragraph 2 and the second sentence of paragraph 3); Article 12 paragraphs 1, 2 and 4 (separate application to the Netherlands and the Netherlands Antilles); Article 14 paragraph 3 sub-paragraph d, paragraph 5, and paragraph 7; Article 19 paragraph 2; Article 20 paragraph 1, so far as the European part of the Kingdom is concerned; Article 25(c) so far as the Netherlands Antilles is concerned.

Economic, Social, Cultural Rights Covenant: Article 8 paragraph 1 sub-paragraph d, and paragraph 2, so far as the Netherlands Antilles is concerned.

44. Bijl. Hand. II 1975/76–13932 (R.1037) No. 3, pp. 10–11.

45. On this point the explanatory memorandum refers to a footnote listing the following judgments: Supreme Court 28 November 1961, NJ 1962 No. 90; Supreme Court 25 April 1967, NJ 1968 No. 63; Royal Decree (administrative proceedings) of 25 October 1965, No. 8, A.B. 1966, p. 10; Royal Decree 14 November 1968 No. 50, A.B. 1969, p. 123; Royal Decree 14 August 1970 No. 173, A.B. 1971, p. 73. The footnote also mentions the following judgments of the European Court of Justice: 26/62, of 5 February 1963, Jur. IX, pp. 5–59, and 13/68 of 19 December 1968, Jur. XIV, pp. 32–56, with regard to the requirements to be fulfilled in order that provisions of the EEC-Treaty may be considered to be self-executing.

46. Bijl. Hand. II 1975/76–13932 (R. 1037) No. 3, pp. 12–13.

47. A/CONF.67/4, in United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, vol. II, p. 5 et seq. Also in I.L.C. Yearbook 1971, vol. 2 Part One, p. 284 et seq.

48. A/CONF.67/C.1/L.39, in United Nations Conference etc. (cited in previous note), Official Records, vol. II, p. 96.

49. Statement at the 13th meeting of the Committee of the Whole, 13 February 1975, id. vol. I, p. 143 (A/CONF.67/C.1/SR.13). The amendment was adopted by 60 votes to none, with 2 abstentions. Id. at p. 145.

50. See, n. 47.

51. With regard to missions to international organizations the matter was dealt with in Art. 30 of the draft. See the Official Records (See, n. 47) p. 24.

52. A/CONF.67/C.1/L.95, id. pp. 127–128. A comparison of the ILC text and the Dutch amendment reveals the following differences:

ILC text:

“1. The head of delegation and other delegates and members of the diplomatic staff of the delegation shall also enjoy immunity from the criminal jurisdiction of the host State. They shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the host State, unless the person in question holds it on behalf of the sending State for the purposes of the delgegation;

(b) an action relating to succession in which the person in question is involved as executor, administrator, heir or legatee as a private persons and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the person in question in the host State outside his official functions;

(d) an action for damages arising out of an accident caused by a vehicle used by the person in question outside the performance of the tasks of the delegation where those damages are not recoverable from insurance.

2. The head of delegation and other delegates and members of the diplomatic staff of the delegation are not obliged to give evidence as witnesses.

3. No measures of execution may be taken in respect of the head of delegation or any other delegates or member of the diplomatic staff of the delegation except in cases coming under sub-paragraph (a), (b), (c) and (d) of paragraph 1, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his accommodation.

4. The immunity of the head of delegation and of other delegates and members of the diplomatic staff of the delegation from the jurisdiction of the host States does not exempt them from jurisdiction of the sending State.”

Netherlands amendment, as orally revised:

“1. The head of delegation and other delegates and members of the diplomatic staff of the delegation shall enjoy immunity from the criminal jurisdiction of the host State, and immunity from the civil and administrative jurisdiction of the host State in respect of all acts performed in the exercise of their official functions.

2. No measures of execution may be taken in respect of such persons unless they can be taken without infringing their rights under articles 59 and 60.

3. Such persons are not obliged to give evidence as witnesses.

4. Any immunity of such persons from the jurisdiction of the host State does not exempt them from the jurisdiction of the sending state.

5. Nothing in this article shall exempt such persons from the jurisdiction of the host State in relation to an action for damages arising from an accident caused by a vehicle, vessel or aircraft used by such persons where these damages are not recoverable from insurance.”

53. Statement of 27 February 1975 at the 32nd meeting of the Committee, Official Records (cited in n. 47) vol. I, p. 259 (A/CONF.67/C.1/SR.32). The amendment, as orally revised, was later adopted by the Committee.

54. United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, vol. II, p. 183.Google Scholar

55. Statement at the 10th plenary meeting, 12 March 1975, id. vol. I, p. 42 (A/CONF.67/SR.10).

56. See, Third United Nations Conference on the Law of the Sea, Official Records, vol. 4, p. 137Google Scholar (Doc. A/CONF.62/WP.8), and vol. 5, p. 111 (Doc. A/CONF.62/WP.9).

57. Also speaking on behalf of the delegations of Belgium and Luxembourg.

57a. This refers to Doc.A/CONF.62/WP9.

58. Article 18 reads:

“1. Nothing contained in the present Convention shall require any Contracting Party to submit to the dispute settlement procedures provided for in the present Convention any dispute arising out of the exercise by a coastal State of its exclusive jurisdiction under the present Convention, except when it is claimed that a coastal State has violated its obligations under the present Convention: (i) by interfering with the freedoms of navigation or overflight, or the freedom to lay submarine cables and pipelines, or related rights and duties of other Contracting Parties; (ii) by refusing to apply international standards or criteria established by the present Convention or in accordance therewith, provided that the international standards or criteria in question shall be specified.

2. When ratifying the present Convention, or otherwise expressing its consent to be bound by it, a Contracting Party may declare that it does not accept some or all of the procedures for the settlement of disputes specified in the present Convention with respect to one or more of the following categories of disputes:

(a) Disputes arising out of the exercise of discretionary rights by a coastal State pursuant to its regulatory and enforcement jurisdiction under the present Convention;

(b) Disputes concerning sea boundary delimitations between adjacent States, or those involving historic bays or titles, provided that the State making such a declaration shall indicate therein a regional or other third-party procedure, entailing a binding decision, which it accepts for the settlement of these disputes;

(c) Disputes concerning military activities, including those by Government vessels and aircraft engaged in non-commercial service, it being understood that law enforcement activities pursuant to the present Convention shall not be considered military activities;

(d) Disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council has determined that specified proceedings under the present Convention would not interfere with the exercise of such functions in a particular case.

3. If the parties to a dispute are not in agreement as to the applicability of paragraphs 1 or 2 to a particular dispute, this preliminary question may be submitted for decision to the tribunal having jurisdiction under articles 9 and 10 of this chapter by application of a party to the dispute.

4. A Contracting Party, which has made a declaration under paragraph 2 of this article, may at any time withdraw it in whole or in part.

5. Any Contracting Party which has made a declaration under paragraph 2 shall be entitled to invoke any procedure under such declaration in relation to any excepted category of dispute against any other Contracting Party.

6. If one of the Contracting Parties has made a declaration under paragraph 2(b) of this article, any other Contracting Party may compel the declarant to refer the dispute to the regional or other procedure specified in such declaration.”

59. Text in Jaarboek van het Departement van Buitenlandse Zaken 1975-1976, pp. 151Google Scholar B-156 B (Annex 33). The statement is recorded in the summary records, Third United Nations Conference on the Law of the Sea, Official Records, vol. 5, pp. 21–22 (A/CONF.62/SR.60).

60. In the Revised Single Negotiating Text of 6 May 1976 (Doc.A/CONF.62/WP.8/Rev.1) the unfortunate use of the word “Parts” in each Part of the Single Negotiating Text has been changed into “Chapters”, while the original Part (Chapter) X has been deleted.

61. Third United Nations Conference on the Law of the Sea, Official Records, vol. 4, p. 171Google Scholar (Doc. A/CONF.62/WP.8/Part II).

62. Statement, 29 April 1976, text in: Verslag van de koninkrijksdelegatie naar de vierde zitting van de derde zeerechtconferentie van de Verenigde Naties [Report of the Kingdom Delegation to the fourth session], vol. 1, Annex 12.

62a. A/CONF.62/WP.8/Rev.1/Part III.

62b. See, Report of the Chairman on the work of the Committee at the fifth session of the Conference, A/CONF.62/L.18.

62c. Statement of 14 September 1976, text in: Verslag van de Koninkrijksdelegatie naar de vijfde zitting van de Derde Zeerechtconferentie van de Verenigde Naties [Report of the Kingdom Delegation to the fifth session], vol. 1, Annex 22. Summary records in Third United Nations Conference on the Law of the Sea, Official Records, vol. 6, p. 97Google Scholar (A/CONF.62/C.3/SR.30).

63. Statement of 12 April 1976 in Committee I, during the 4th session of the Conference. Text in, op.cit., at n. 62, vol. 1, Annex 6.

63a. Statement of 14 September 1976 in the First Committee, Third United Nations Conference on the Law of the Sea, Official Records, vol. 6, p. 76Google Scholar (A/CONF.62/C.1/SR.36). Similar statements were made on 23 August 1976 in the General Committee, id., p. 38 (A/CONF.62/BUR/SR.24), and on 19 August 1976 in the ‘Workshop’ of the First Committee, Verslag etc. cited in n. 62c, vol. 1, Annex 3.

64. The Article reads:

“1. In an area beyond and adjacent to its territorial sea, described as the exclusive economic zone, the coastal State has:

(a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether renewable or non-renewable, of the sea-bed and subsoil and the superjacent waters;

(b) Exclusive rights and jurisdiction with regard to the establishment and use of artificial islands, installations and structures;

(c) Exclusive jurisdiction with regard to:

(i) Other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; and

(ii) Scientific research;

(d) Jurisdiction with regard to the preservation of the marine environment, including pollution control and abatement;

(e) Other rights and duties provided for in the present Convention.

2. In exercising its rights and performing its duties under the present Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States.

3. The rights set out in this article shall be without prejudice to the provisions of part IV.” Doc.A/CONF.62/WP.8/Part II, in Third United Nations Conference on the Law of the Sea, Official Records, vol. 4, p. 159.Google Scholar

65. Text in: Verslag van de koninkrijksdelegatie naar de vierde zitting van de derde zeerechtconferentie van de Verenigde Naties [Report of the Kingdom Delegation to the fourth session], vol. 1, Annex 9.

66. Ibid. In the Revised Single Negotiating Text of 6 May 1976 (Doc.A/CONF.62/WP.8/Rev.1) the draft Article, which had then become Article 44, had, however, remained virtually unchanged.

67. Replies of 21 April 1976, Doc.A/CN.4/294/Add.1, pp. 3–8. Also in: Jaarboek van het Departement van Buitenlandse Zaken 1975–1976, Annex 31, pp. 140 B-144 B.Google Scholar

68. The text of the articles reads as follows:

“Article 10. Attribution to the State of conduct of organs acting outside their competence or contrary to instructions concerning their activity

The conduct of an organ of a State, of a territorial governmental entity or of an entity empowered to exercise elements of the governmental authority, such organ having acted in that capacity, shall be considered as an act of the State under international law even if, in the particular case, the organ exceeded its competence according to international law or contravened instructions concerning its activity.

Article 11. Conduct of persons not acting on behalf of the State

1. The conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law.

2. Paragraph 1 is without prejudice to the attribution to the State of any other conduct which is related to that of the persons or groups of persons referred to in that paragraph and which is to be considered as an act of the State by virtue of articles 5 to 10.

Article 12. Conduct of organs of another State

1. The conduct of an organ of a State acting in that capacity, which takes place in the territory of another State or in any other territory under its jurisdiction, shall not be considered as an act of the latter State under international law.

2. Paragraph 1 is without prejudice to the attribution to a State of any other conduct which is related to that referred to in that paragraph and which is to be considered as an act of that State by virtue of articles 5 to 10.

Article 13. Conduct of organs of an international organization

The conduct of an organ of an international organization acting in that capactiy shall not be considered as an act of a State under international law by reason only of the fact that such conduct has taken place in the territory of that State or in any other territory under its jurisdiction.

Article 14. Conduct of organs of an insurrectional movement

1. The conduct of an organ of an insurrectional movement, which is established in the territory of a State or in any other territory under its administration, shall not be considered as an act of that State under international law.

2. Paragraph 1 is without prejudice to the attribution to a State of any other conduct which is related to that of the organ of the insurrectional movement and which is to be considered as an act of that State by virtue of articles 5 to 10.

3. Similarly, paragraph 1 is without prejudice to the attribution of the conduct of the organ of the insurrectional movement to that movement in any case in which such attribution may be made under international law.

Article 15. Attribution to the State of the act of an insurrectional movement which becomes the new Government of a State or which results in the formation of a new State.

1. The act of an insurrectional movement which becomes the new government of a State shall be considered as an act of that State. However, such attribution shall be without prejudice to the attribution to that State of conduct which would have been previously considered as an act of the State by virtue of articles 5 to 10.

2. The act of an insurrectional movement whose action results in the formation of a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered as an act of the new State.

69. Report of the International Law Commission on the work of its twenty-seventh session (1975), ILC Yearbook 1975 vol. II, p. 47 et seq.

70. Statement of 20 October 1975, text in Dertigste Zitting, pp. 627–628 (also in: Stc. of 29 October 1975, No. 209, pp. 1, 3).

71. A/CONF.67/4, in United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, vol. II, p. 5 et seqGoogle Scholar. Also in ILC Yearbook 1971, vol. 2, Part One, p. 284 et seq.

72. Official Records cited in n. 71, vol. II, p. 54.

73. A/CONF.67/C.1/L.147, id., vol. II, p. 163.

74. Statement of 6 march 1975 in the Committee of the Whole, id., vol. I, pp. 324–325 (A/CONF.67/C.1/SR.44). The proposal was later rejected.

75. Cf., 3 N.Y.I.L. (1972), pp. 231–232; 5 N.Y.I.L. (1974), p. 358; 6 N.Y.I.L. (1975), p. 373; 7 N.Y.I.L. (1976), p. 348; and this volume, infra, pp. 331–3.

76. Bijl. Hand. II 1975/76–14006 No. 2.

77. Security Council Resolution 253 (1968) reads, inter alia.

“…

Acting under Chapter VII of the Charter of the United Nations,

1–2…

3. Decides that, in furtherance of the objective of ending the rebellion, all States Members of the United Nations shall prevent:

(a) The import into their territories of all commodities and products originating in Southern Rhodesia and exported therefrom after the date of this resolution (whether or not the commodities or products are for consumption or processing in their territories, whether or not they are imported in bond and whether or not any special legal status with respect to the import of goods is enjoyed by the port or other place where they are imported or stored);

(b) Any activities by their nationals or in their territories which would promote or are calculated to promote the export of any commodities or products from Southern Rhodesia; and any dealings by their nationals or in their territories in any commodities or products originating in Southern Rhodesia and exported therefrom after the date of this resolution, including in particular any transfer of funds to Southern Rhodesia for the purposes of such activities or dealings;

(c) The shipment in vessels or aircraft of their registration or under charter to their nationals, or the carriage (whether or not in bond) by land transport facilities across their territories of any commodities or products originating in Southern Rhodesia and exported therefrom after the date of this resolution;

(d) The sale or supply by their nationals or from their territories ot any commodies or products (whether or not originating in their territories, but not including supplies intended strictly for medical purposes, educational equipment and material for use in schools and other educational institutions, publications, news material and, in special humanitarian circumstances, food-stuffs) to any person or body in Southern Rhodesia or to any other person or body for the purposes of any business carried on in or operated from Southern Rhodesia, and any activities by their nationals or in their territories which promote or are calculated to promote such sale or supply;

(e) The shipment in vessels or aircraft of their registration, or under charter to their nationals, or the carriage (whether or not in bond) by land transport facilities across their territories of any such commodities or products which are consigned to any person or body in Southern Rhodesia, or to any other person or body for the purposes of any business carried on in or operated from Southern Rhodesia;

”

78. Explanatory Memorandum, submitted on 14 August 1976, Bijl.Hand. II 1975/76–14006 No. 3, pp. 5–7.

79. See, 5 N.Y.I.L. (1974), pp. 252–254.

80. A/AC.181/Add.1 (18 May 1976), pp. 18–19.

81. Dertigste Hiring, p. 309.

82. The grant of an export guarantee was repeatedly delayed and finally the prospective order was lost, and a French firm won the order.

83. This paragraph reads: “Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.”

84. Statement of 12 November 1975 in the Second Chamber, Hand. II 1975/76, pp. 1036–1037. Cf., the further letter to Parliament from the Ministers of Finance, of Economic Affairs, and for Foreign Affairs, 2 June 1976, Bijl. Hand. II 1975/76–13935 No. 2.

85. Dertigste Zitting, p. 310.

86. Id., pp. 310–311.

87. The draft convention was submitted on 21 August 1975, Docs. CCD/471, CCD/472 of 21 August 1975.

88. Draft additional protocols to the Geneva Conventions of 1949 (“Red Cross Conventions”): see, 6 N.Y.I.L. (1975), pp. 307–308, and infra, p. 219.

89. Article I: “1. Each State Porty to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to another State Party.

2. Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provision of paragraph 1 of this article.”

90. Article II: “As used in Article I, the term “environmental modification techniques” refers to any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space, so as to cause such effects as earthquakes and tsunamis, an upset in the ecological balance of a region, or changes in weather patterns (clouds, precipitation, cyclones of various types and tornadic storms), in the state of the ozone layer or ionosphere, in climate patterns, or in ocean currents.”

91. Article I: “Each of the Parties to this Convention undertakes not to use meteorological, geophysical or any other scientific or technological means of influencing the environment, including the weather and climate, for military and other purposes incompatible with the maintenance of international security, human well-being and health, and, furthermore, never under any circumstances to resort to such means of influencing the environment and climate or to carry out preparations for their use.”

92. Article III: “The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes by States Party, or international economic and scientific co-operation in the utilization, preservation and improvement of the environment for peaceful purposes.”

93. Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction, Annex to General Assembly Res. 2826 (XXVI) of 16 December 1971. Article X of this Convention reads:

“1. The States Parties to this Convention undertake to facilitate and have the right to participate in the fullest possible exchange of equipment, materials and scientific and technological informamation for the use of bacteriological (biological) agents and toxins for peaceful purposes. Parties to this Convention in a position to do so shall also co-operate in contributing individually or together with other States or international organizations to the further development and application of scientific discoveries in the field of bacteriology (biology) for prevention of disease, or for peaceful purposes.

2. This Convention shall be implemented in a manner designed to avoid hampering the economic or technological development of States Parties to the Convention or international co-operation in the field of peaceful bacteriological (biological) activities, including the international exchange of bacteriological (biological) agents and toxins and equipment for the processing, use or production of bacteriological (biological) agents and toxins for peaceful purposes in accordance with the provisions of this Convention.”

94. Article IV: “Each State Party to this Convention undertakes, in accordance with its constitutional processes, to take any necessary measures to prohibit and prevent any activity in violation of the provisions of the Convention anywhere under its jurisdiction or control.”

95. Article V: “1. The States Party to this Convention undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objectives of, or in the application of the provisions of this Convention. Consultation and co-operation pursuant to this article may also be undertaken through appropriate international procedures within the framework of the United Nations and, in accordance with its Charter.

2. Any State Party to this Convention which finds that any other State Party is acting in breach of obligation deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council.

3. Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Party to the Convention of the results of the investigation.

4. Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of violation of the Convention.”

96. See, 5 N.Y.I.L. (1974), pp. 252–254.

97. Article VII: “This Convention shall be of unlimited duration.”

98. Statement in the CCD, 9 March 1976, CCD/PV.692, pp. 29–36. See also, the Government Note on Disarmament and Security, submitted to Parliament on 6 August 1976, Bijl.Hand. II 1975/76–13461 No. 4, p. 1.

99. Text of the Draft Protocol in Projets de protocols additionneh aux Conventions de Genève du 12 août 1949, published by the International Committee of the Red Cross, Geneva, June 1973.Google Scholar

100. See, 6 N.Y.I.L. (1975), pp. 307–308.

101. The article reads:

“Article premier. – Champ d'application matériel

1. Le présent Protocole s'appliquera à tous les conflits armés qui ne sont pas couverts par l'article 2 commun aux Conventions de Genève du 12 août 1949 et se déroulent entre des forces armées ou groupes armés organisés, dirigés par un commandement responsable.

2. Le présent Protocole ne s'applique pas aux situations de troubles intérieurs et de tensions internes, notamment aux émeutes, aux actes isolés et sporadiques de violence et autres actes analogues.

3. Les dispositions qui précèdent ne modifient pas les conditions d'application de l'article 3 commun aux Conventions de Genève du 12 août 1949.”

102. This clause was inserted into the preamble of the Hague Convention IV of 1907 respecting the laws and customs of war on land. It reads:

“Until a more complete code of the law of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.”

103. These Articles read as follows:

“Article 20 – Interdiction des maux superflus

1. Les parties, au conflit et les membres de leurs forces armées n'ont pas un droit illimité quant au choix des methodes et des moyens de combat.

2. Il est interdit d'employer des armes, des projectiles, des matières, des méthodes et des moyens propres à aggraver inutilement les souffrances des adversaires mis hors de combat ou à rendre leur mort inévitable en toutes circonstances.”

“Article 24 – Règies fondamentales

1. Afin d'assurer le respect de la population civile, les parties au conflit limiteront leurs opérations à la destruction ou à l'affaiblissement du potentiel militaire de l'adversaire et feront la distinction entre population civile et combattants et entre biens de caractere civil et objectifs militaires.

2. Les opérations militaires seront conduites avec le souci constant d'épargner la population civile, les personnes civiles et les biens de caractère civil. Cette règie s'applique en particulier à la préparation, la décision ou l'exécution d'une attaque.”

“Article 26 – Protection de la population civile

1. La population civile comme telle et les personnes civiles prises isolément ne seront pas l'objet d'attaques. Sont notamment interdites les methodes destinées à répandre la terreur parmi la population civile.

2. Les personnes civiles jouiront de la protection accordée par cet article, sauf pour le temps où elles participeraient directement aux hostilités.

3. Sont interdits l'utilisation des moyens de combat et les méthodes qui frappent ou qui affectent sans discrimination population civile et combattants, biens de caractère civil et objectifs militaires. Il est notamment interdit:

a) d'attaquer indistinctement comme un seul objectif, par des bombardements ou par toute autre méthode, une zone comprenant plusieurs objectifs militaires situés dans des régions habitées et à une certaine distance les uns des autres;

b) de procéder à des attaques qui pourraient incidemment oauser dans la population civile et aux biens de caractère civil des pertes et des destructions hors de proportion avec l'avantage militaire direct et substantiel attendu.

4. Sont interdites les attaques dirigées à titre de représailles contre la population civile ou contre des personnes civiles.

5. Les parties au conflit n'utiliseront pas la population civile ni les personnes civiles pour tenter de mettre des objectifs militaires à l'abri des attaques.”

104. Intervention of 18 February 1975. Text by courtesy of the Ministry of Foreign Affairs.

105. See, Report of the International Law Commission on the work of its twenty-seventh session (1975), in ILC Yearbook 1975, vol. II, p. 47 et seq. at pp. 115–117, 120 et seq.

106. “The beneficiary State is entitled to treatment extended by the granting State to a third-State whether or not such treatment is extended under a bilateral or a multilateral agreement.”

107. Statement of 20 October 1975, Dertigste Zitting, p. 628. Also in Stc. of 29 October 1975 No. 209, p. 3.

108. Trb. 1975 No. 134.

109. See, 3 N.Y.I.L. (1972), pp. 236–237.

110. Explanatory Note, submitted by the Minister for Foreign Affairs, 9 April 1976, Bijl. Hand. II 1975/76–13892 No. 1, p. 2.

111. Bijl. Hand. II 1975/76 – 13865 No. 1.