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Netherlands judicial decisions involving questions of public international law, 1981 – 1982
Published online by Cambridge University Press: 07 July 2009
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References
1. Summarized in WRvS (1982) No. R. 191.
2. 815 UNTS p. 159; Trb. 1969 No. 115. Art. 16: “(1) Each Contracting Party shall take steps to enforce claims based on judgement rendered by a court of the other Contracting Party in civil actions concerning: (a) The use of a ship belonging to, operated by or fully chartered by the first-mentioned Contracting Party; or (b) The carriage of passengers or cargoes on such a ship.”
3. See 8 NYIL (1977) pp. 251–2.
4. Summarized in NJB (1982) p. 143.
5. Art. 254: “The course of proceedings is suspended (1) by the death of either party; (2) by a change in the personal status of either party; …”
6. See 12 NYIL (1981) pp. 305–7.
7. See 12 NYIL (1981) pp. 306–7.
8. The Supreme Court further held Art. 254, Code of Civil Procedure, to be inapplicable where, as in this case, the cause for suspension had not been notified to its opponent by the party on whose side the cause had arisen.
9. With a note by A.H.J. Swart.
10. With a note by the Editors. Summarized in Nederlands Juristenblad (1981) p. 1059.Google Scholar
11. Trb. 1975 No.(132) Art. 6: “(1) Subject to paragraph 2, minors shall have the nationality of their fathers or, in the event of the latter being deceased or unknown in law, that of their mothers; (2) minors shall have the nationality which their mothers acquire or retain under this Agreement, if an for such time as they live with their mothers in a country other than that of their fathers' residence.”
12. I.e., the day on which Surinam acquired independence and the Agreement entered into force.
13. Art. 3: “All Dutch nationals of full age who were born in Surinam and are domiciled or factually resident in the Republic of Surinam at the time this Agreement enters into force shall acquire Surinamese nationality.”
14. Art. 43: “(1) Any person who is refused admission to the Netherlands, or is subjected to a measure that can be applied only to aliens, may, if claiming Dutch nationality, appeal to the Supreme Court of the Netherlands by means of a petition signed by a lawyer, unless the law provides for a different procedure for obtaining a judicial decision.” For Art. 43, cf., Swart, A.H.J., “The Dutch Law on Aliens”, in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) p. 104.Google Scholar
15. Rechtspraak Vreemdelingenrecht (1980) No. 31, with a note by the Editors.
16. Following the Decision of the Supreme Court, R.B. was not expelled by the State Secretary, who was probably allowing R.B. to stay pending the result of R.B.'s appeal, lodged on 27 January 1981, to the Judicial Division of the Council of State against the refusal of a residence permit, and his application for naturalisation of 22 December 1980 (in the event that the Supreme Court should decide he did not have Dutch nationality).
17. The basic idea here defined by R.B. was also held to be conclusive by Solicitor-General Mok, who, unlike the Supreme Court, on that basis found the petition to be well-founded (see NJ (1982) No. 137).
18. Unlike the Supreme Court, the President of the Rotterdam District Court found, in the summary proceedings referred to above, that the fact that R.B. was not in the Netherlands with his mother at the time when his mother opted for Dutch nationality, since she was resident in the Netherlands at the time Surinam became independent, was irrelevant: “Neither the text of Article 6 of the Agreement on nationality nor the accompanying explanatory memorandum provide any basis for the view that the Article 6(2) of the Agreement should be taken to apply only to the situation on 25 November 1975”. In this connection the President referred to the judgment of the Judicial Division of the Council of State, of 28 February 1980 in J.S.D. v. the Minister for Foreign Affairs, in which the Division reached a similar conclusion. In that case, two minors staying with their Dutch mother in the Netherlands challenged the change of their Dutch nationality into Surinamese nationality as a result of their father's arrival in the Netherlands in 1978. On the basis of the consideration referred to supra, the Division dismissed the minors' appeal (Rechtspraak Vreemdelingenrecht (1980) No. 26 with a note by the Editors). In his conclusion in the R.B. Case, Solicitor-General Mok pointed out that the Cases of R.B. and J.S.D. were not concerned with the same issue. “[The latter case] was not concerned with the significance of the mother's retention of Dutch nationality, but the relationship between the first two paragraphs of Article 6 of the Agreement. The decision of the Judicial Division is to the effect that the second paragraph applies only for such time as minors live with their mother in a country other than that of their father's residence. The moment when the father also comes to live in that country, the second paragraph (in accordance with its literal text) ceases to apply, and makes way for the rule of descent laid down in the first paragraph.”
19. Art. 6: “(1) A legitimate or legitimized child of a father naturalized as a Nederlander, when born before its father's naturalization, as well as a natural child that has been recognized by a father naturalized as a Nederlander, when born before its father's naturalization, shall also be regarded as naturalized, subject to any reservations in the Naturalization Act or Naturalization Decree … (2) The same shall apply with respect to a legitimate, legitimized or recognized natural child, if the mother is naturalised after the death of the child's father, as well as to a non-recognized illegitimate child, born before the naturalisation of the mother.”
20. This Act was intended to repeal the Act of 10 February 1910 on the Status of Netherlands Subjects other than Nederlander, which, in pursuance of the Act of 21 December 1951, was applicable only to Dutch New Guinea, and to make provision for persons of Dutch nationality, who derived the status of Netherlands subject (not being a Nederlander) from that Act of 1910. Cf., Ko Swan, Sik, “The Netherlands and the law concerning nationality”, in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) pp. 6, 34, 40.Google Scholar
21. Cf. supra n. 14.
22. A statistical survey of the decisions involving aliens law of the Judicial Division of the Council of State and the ordinary courts during 1981–1982 is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1983 (Bijl.Hand. II 1982/1983 - 17600 VI No. 2 pp. 61–2).
23. Note by P.A. Stein.
24. Note by the Editors. Summarized in ELD (1982) pp. 463 and 477. Discussed in SMA (1982) p. 41 and by Loeb, R.W.L. in Inleiding Vreemdelingenrecht (Introduction to aliens law), Nijmegen, Ars Aequi, 1983, pp. 318–9.Google Scholar
25. Cf., 10 NYIL (1979) p. 432 and Swart, A.H.J.: “The Dutch Law on Aliens” in International Law in the Netherlands, Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y. 1980) p. 106.Google Scholar
26. Note by the Editors.
27. 360 UNTS p. 130; Trb. 1955 No. 42.
28. Art. 1(1) reads: “For the purpose of this Convention, the term ‘stateless person’ means a person who is not considered as a national by any State, under the operation of its law.”
29. Note by the Editors.
30. Note by H.P. Vonhögen. Discussed by Hoeksma, J.A., in Tussen vrees en vervolging. Een inleiding in het vluchtelingewecht [Between fear and persecution. An introduction to the law of refugees], Assen: Van Gorcum, 1982, p. 242Google Scholar and by R.W.L. Loeb, op.cit. n. 24 pp. 155 and 182.
31. Res. No. 33/165. The relevant text reads: “… (2) Calls upon Member States to grant asylum or safe transit to another State in the spirit of the Declaration on Territorial Asylum to persons compelled to leave their country of nationality solely because of a conscientious objection to assisting in the enforcement of apartheid through service in military or police forces; (3) Urges Member States to consider favourably the granting to such persons of all the rights and benefits accorded to refugees under existing legal instruments.” Cf., Ministry of Foreign Affairs publication No. 123 Vol. II pp. 302–3.
32. Cf., the Case mentioned in 12 NYIL (1981) p. 320 n. 50.
33. 189 UNTS p. 137; Trb. 1951 No. 131 amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 75. Art. 1 (A): “For the purposes of the present Convention the term ‘refugee’ shall apply to any person who … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”
34. In N.G.A.L. v. State-Secretary of Justice, the Judicial Division of the Council of State did not share the appellant's view that in South Africa almost any steps taken by the authorities against conscientious objection should be regarded as persecution. What matters, in the Division's opinion, is the substance of such steps. (Judgment of 4 July 1982, Gids Vreemdelingenrecht No. D 12–48) Cf. also, the cases mentioned in 12 NYIL (1981) pp. 329 and 330 n. 86.
35. With a note by the Editors.
36. With a note by H.P. Vonhögen. Discussed by Hoeksma, op.cit. n. 30 p. 169 and R.W.L. Loeb, op.cit. n. 24 pp. 154–5.
37. Since W.R. had been in the Netherlands for less than a year, the first barrier to be overcome was Article 34(1)(b) of the Aliens Act. The Judicial Division tested this provision against Article 16(2) of the Refugees Convention in the same way as in A.J. v. State-Secretary of Justice (Judgment of 13 July 1979, see 12 NYIL (1981) pp. 322–324.
38. Summarized in WRvS (1981) No. 2. 337.
39. For the text of Art. 1 A(2), see supra n. 33.
40. Cf., Council of State, Judicial Division, 21 June 1979, 12 NYIL (1981) p. 321.
41. Reference is made to Art. 15(1) of the Aliens Act, reading: “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons or religion, political opinion or nationality … or membership of a particular group, may be admitted as refugees by Our Minister.”
42. Cf., for the aspect of “very special status”: Fernhout, R. in “Het binnenlands vluchtalternatief en de vluchtelingendefinitie” [The alternative of internal refuge and the definition of refugee] NJB (1981) pp. 1076–1077.Google Scholar
43. Which concerns the grant of a residence permit, see infra.
44. Cf., the cases mentioned in 10 NYIL (1979) p. 463, 12 NYIL (1981) pp. 320–2, 13 NYIL (1982) pp. 342–4. In V.B.S. v. State-Secretary of Justice, the Division applied the alternative of internal refuge to a Lebanese national who, as an Armenian Christian, feared persecution. The Division found no evidence of individual persecution in Beirut and also considered settlement elsewhere in Lebanon possible (Judgment of 17 September 1981, Gids Vreemdelingenrecht No. D 12–53, Rechtspraak Vreemdelingenrecht (1981) No. 6, with a note by the Editors). In this case the Representative in the Netherlands of the UN High Commisioner for Refugees also thought that there was no refugee status, since the definition in Article 1(A) did not concern situations of civil war; this notwithstanding the fact that the High Commissioner had concerned himself with civil war victims in a number of African countries.
45. For the subjective fear of persecution, cf. Fernhout op.cit. n. 42 pp. 1078–80. This argument was first dismissed by the Judicial Division in I.C. v. State-Secretary of Justice, 4 December 1980, reported with comments in the note to Rechtspraak Vreemdelingenrecht (1980) No. 3, and by J.A. Hoeksma, op.cit. n. 30 pp. 246–7. In this case, the Representative in the Netherlands of the UN High Commissioner for Refugees did not share the Division's view on this aspect, and this has occurred on a number of other occasions, e.g., in D.K. v. State-Secretary of Justice. In this case, however, the Division reversed the State-Secretary's refusal to grant the status of de facto refugee, upholding the positive advice of the Advisory Committee on Aliens (Judgment of 4 January 1982, Gids Vreemdelingenrecht No D 12–56, AB (1982) No. 162 with a note by R. Fernhout. Discussed by R.W.L. Loeb, op.cit. n. 24 pp. 232–3 and 276).
46. With comment by A.H.J. Swart. Discussed by J.A. Hoeksma, op.cit n. 30 p. 259, by Wesseldijk, J.W. in “Positieve rechtspraak van de Raad van State, Asielverlening aan Eritreers” [Positive case-law of the Council of State, Grant of Asylum to Eritreans], 3 Vluchtelingenwerk (1982) No. 5 pp. 5–6Google Scholar and by R.W.L. Loeb, op.cit n. 24 pp. 152, 156, 162–3, 176.
47. For Art. 1 A(2), see supra n. 33.
48. Art. 26: “Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.”
49. Cf., the case reported in 12 NYIL (1981) pp. 317–320.
50. For Art. 15(1), see supra n. 41.
51. “Republikflucht” did persuade the Judicial Division to grant refugee status in B.T. v. State-Secretary of Justice (Judgment of 18 January 1982, Gids Vreemdelingenrecht No. D 12–58, AB (1982) No. 273 with note by F.H. van der Burg, AROB TB/S jur III, No. 321, with note by H.P. Vonhögen, discussed by Hoeksma, op.cit., n. 30 p. 259 and by Wesseldijk, op.cit. n. 46 pp. 5–6). In a decision of 12 November 1981, the Division had still refused to attach any significance to Ethiopia's newly-introduced punishment for “Republikflucht” (D.N. v. State-Secretary of Justice, Gids Vreemdelingenrecht No. D 12–59, discussed by Hoeksma op.cit. n. 30 p. 213).
52. Another method adopted by the State-Secretary to show that repressive treatment has failed to occur in respect of an Eritrean refugee is to contest the refugee's identity, thus making it more difficult for the person concerned to prove that he had to fear persecution as an Eritrean. This occurred, inter alia, in B.T. v. State-Secretary of Justice (see supra n. 51). Unlike the State-Secretary, the Division founds T.'s identity had been adequately established. Idem, in T.M.A.A. v. State-Secretary of Justice. In this case, concerned with the grant of B-status, the deposition of T.M.A.A.'s brother, who had already been admitted to the Netherlands as a refugee, was found to be conclusive (Judgment of 4 March 1982, Gids Vreemdelingenrecht No. D. 12–63, Rechtspraak Vreemdelingenrecht (1982) No. 6 with comment by A.H.J. Swart, discussed by Wesseldijk, op.cit n. 46, p. 5 and by R.W.L. Loeb, op.cit., n. 24 pp. 150, 152, 263).
53. In B.T. v. State-Secretary of Justice (see supra n. 51), the Division also found that the fact that B.T. had stayed in Sudan for a month, did not exclude recognition as a refugee, but might play a part with respect to admittance. Unlike in the case of N.N., the Division understood the relevant finding in the State-Secretary's decision to mean that the State-Secretary had never considered this aspect of admittance. Therefore, the decision was reversed.
54. “Transit” was accepted in J.A.S.R.A., v. the State of the Netherlands and others. In this case the President of the Amsterdam District Court prohibited the expulsion of a Chilean national who had come to the Netherlands by car from Paris via Belgium, and had applied for admittance as a refugee, Belgium could not be regarded as the first country of asylum, since the Chilean was merely in “transit”, and not “staying” there. (Judgment of 26 March 1981, KG (1981) No. 39, Gids Vreemdelingenrecht No. F-71, Rechtspraak Vreemde-lingenrecht (1981) No. 9).
55. Most of the criteria that were here applied with respect to the soundness of the country of first asylum were also applied to Kenya in T.M.G. v. State-Secretary of Justice (Judgment of 22 April 1982, WRvS (1982) No. 2.249). In that case, the Division also considered it impossible to test the refusal of admittance as a refugee against Article 6(1) of the European Human Rights Convention and Article 14 of the International Covenant on Civil and Political Rights, since no “civil rights and obligations” were at stake. In addition, the Division considered there was no question of exceeding the “reasonable time-limit” referred to in these articles, since, in this case, the time-limits under the Aliens Act had been observed. The criterion of danger of refoulement was applied in E.M.B.M. and others v: the State of the Netherlands and others. The President of the District Court of Rotterdam held that E.M.B.M. was unlikely to be in danger of refoulement to Morocco from Algeria (Judgment of 6 May 1981, Rechtspraak Vreemdelingenrecht (1981) No. 10, with a note by the Editors). Cf., also with regard to this criterion, the case reported in 12 NYIL (1981) at p. 328.
56. Art. 15(1), see supra n. 41.
57. Art. 1 A(2), see supra n. 33.
58. Summaries of Supreme Court decisions in 1982 on extradition can be found in Delikt en Delinkwent, with a table of the Articles of the Extradition Act and the extradition treaties applied. The most important are also published in the Nederlandse Jurisprudence, with an annual subject index (the relevant entry here being: Uitlevering [Extradition]).
59. Summarized in DD (1981) No. 338.
60. The text reads: “Da die auslieferung nicht in frage kommt und da eine uebernahme der strafverfolgung komplizicrt ist und viclleicht kein positieves ergebnis bringen wird, wurde beschlosscn kcine weiteren masznahmen gegen P. zu beantragen.” [Since extradition is out of the question and a transfer of criminal proceedings is complicated and may not lead to a positive result, it was decided not to institute any further proceedings against E.P.].
61. 359 UNTS p. 273; Trb. 1965 No. 9.
62. Trb. 1977 No. 20.
63. Summarized in DD (1982) No. 10.
64. 520 UNTS p. 151. Trb. 1962 No. 30. Art. 36(2): “Subject to the constitutional limitations of a Party, its legal system and domestic law, (a) … (iv) Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgment given. …”
65. According to the Supreme Court decision in W.H.P.B. v. Public Prosecutor, in such a case the courts can examine the question whether the Convention has been correctly implemented. Unlike the appellant, the Supreme Court found no conflict in this case between the Convention and Art. 1(5) of the Opium Act, in which the concept “export” has been given a wider scope than in Art. 1(m) of the Convention. It followed from Art. 36(1) and (4) that the Convention did not prohibit Parties from giving the term “export” a wider definition in their domestic laws than the definition in Art. 1 (m) of the Convention (Judgment of 15 December 1981, NJ (1982) No. 270, DD (1982) No. 123).
66. In his conclusion, Solicitor-General Mok contended that if the offence were assumed to have been committed outside Danish territory, the Netherlands could refuse extradition under Article 7(2) of the European Convention on Extradition (since in Dutch law the offence would not be punishable in the reverse situation). However, it did not follow from this that extradition would be inadmissible. This view was shared by the Supreme Court in its judgment in M.L.V. v. Public Prosecutor, which involved an extradition request by West Germany in respect of an Italian who had committed criminal offences in Spain (Judgment of 31 August 1981, NJ (1982) No. 154, with note by Th.W. van Veen, DD (1981) No. 405). Cf. also, Remmelink, J., Uitlevering (Arnhem, Gouda Quint, 1982) 2nd ed. p. 75.Google Scholar
67. Comments on p. 74. Discussed by Heringa, A.W. and Knoop Pathuis, T. in “Huisvesting en discriminatie” (Housing and discrimination), NJCM-Bulletin (1981) pp. 277–301 at p. 293Google Scholar, by Loth, M.A. in “Woonruimteverdeling en onderbedeling; ethnische minderheden op de woningmarkt” (Housing allocation and under-allocation; ethnic minorities on the housing market), AA (1982) pp. 573–9 at pp. 576–7.Google Scholar
68. Article 429 quater: “Any person who, in the exercise of his profession or business, discriminates against a person on account of his race when proferring goods or services or when fulfilling an offer, shall be liable to a term of detention (hechtenis) not exceeding one month or a fine not exceeding one thousand guilders.”
69. For the text of these Articles, see 4 NYIL (1973) pp. 431–2.
70. Trb. 1969 No. 99, p. 105. Art. 25: “(1). Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. …”
71. ILM (1967) p. 368; Trb. 1969 No. 99. Art. 26 reads: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
72. ILM (1967) p. 360; Trb. 1969 No. 100. Art. 11: “(1). The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. …”
73. 660 UNTS p. 195; Trb. 1966 No. 237.
74. 213 UNTS p. 221; Trb. 1951 No. 154.
75. See Bestuurswetenschappen (1980) pp. 330–41.
76. Art. 66 reads: “Legal regulations in force within the Kingdom shall not apply if this application should be incompatible with provisions, binding on anyone, of agreements entered into either before or after the enactment of the regulations.”
77. Cf. 8 NYIL (1977) pp. 272–3.
78. The obstacle of third-party effect was absent in Stichting Landelijke Federatie van Welzijn Stichtingen voor Surinamers and 7 others v. Municipality of Rotterdam and the Federatie van Rotterdamse Woningbouwcorporaties. This case involved the policy of a government body, viz., the Municipality of Rotterdam, which policy had, until then, been laid down only in a Memorandum. It was aimed at setting up a dispersal policy for groups of immigrants. The plaintiffs instituted summary proceedings before the District Court of Rotterdam, requesting an injunction prohibiting implementation of the policy. The President dismissed the request. He found the policy as explained in the Memorandum not, in itself, of a discriminatory character. There were no allegations of concrete decisions or acts showing dis-crimination on account of race within the meaning of Art. 1 of the Racial Discrimination Convention and Art. 90 quater of the Penal Code. Also, there was no question of insult within the meaning of Art. 137c, d and e of the Penal Code, or of violation of the freedom of establishment (Judgment of 10 April 1981, KC(1981) No. 50, NJ (1981) No. 359, Rechtspraak Vreemdelingenrecht (1981) No. 113 with a note by the Editors. Discussed by A.W. Heringa and T. Knoop Pathuis, op.cit., n. 67 p. 288, by Soumete, L. in “Grondrechten-bescherming en allochtonen” (Protection of basic rights and aliens), AA (1982) pp. 561–569 at pp. 564–5Google Scholar, by Stolker, C.J.J.M. in “De vestigingsverordening en het verdragenrecht” (The establishment regulation and treaty law), NJB (1981) pp. 765–772 at p. 770Google Scholar and by P. Nicolaf in AA (1982) Katern 3, p. 106).
79. The Court of Appeal of 's-Hertogenbosch also gave judgment against the Stichting but, unlike the District Court, it found that the Woningbouwvereniging Binderen had been guilty of discrimination against S.K. In particular, the Woningbouwvereniging had failed to explain sufficiently why it had considered S.K.'s need for accommodation less urgent than that of 157 other applicants who had been given preference in the period 1977–1980 (Judgment of 10 November 1981, NJCM-Bulletin (1982) p. 42, with a note by Knoop Pathuis, T., Rechtspraak Vreemdelingenrecht (1981) No. 114Google Scholar, with a note by the Editors). In cassation, the Supreme Court upheld the decision of the Court of Appeal (Judgment of 10 December 1982, RvdW (1983) No. 2, Rechtspraak Vreemdelingenrecht (1982) No. 106 with comment by Hoens, J., discussed by the Werkgroep Knelpunten in het Nederlandse Recht voor Ethnische Minderheden in Rechtsmiddelen tegen Rassendiscriminatie [Legal measures against racial discrimination] (Utrecht, NCB, 1983) pp. 15, 20, 38–41.Google Scholar
80. Cf., Aanh.Hand. II 1982–1983 No. 392. In appeal, the Court of Appeal of The Hague upheld the judgment on 22 September 1982.
81. Art. 137e: “1. Any person who for reasons other than the provision of factual information (1) … (2) distributes, or has in his possession with the intention of effecting distribution or publication, any object which he knows or which he has reasonable cause to suspect contains such an utterance, shall be liable to a term of imprisonment not exceeding six months or a fine not exceeding live thousand guilders.” Cf., 4 NYIL (1973) pp. 431–432.
82. The Breda District Court sentenced C.J.H.I. de B., likewise under Art. 137e, to a month' imprisonment suspended for two years and a fine of Dfl. 1000 or alternatively, twenty days' detention for offering anti-semitic books for sale in his bookshop (Judgment of 17 March 1982). In another case, the Court of Appeal of Arnhem based the conviction of P.E. v.d.M., for writing and distributing an anti-semitic book, on Article 137c of the Penal Code (For the text of Art. 137c, see 4 NY1L (1973) pp. 431–2); he was sentenced to two weeks' imprisonment suspended for two years and a fine of Dfl. 500 or, alternatively, ten days' detention (Judgment of 4 June 1982. Confirmed by the Supreme Court on 11 January 1983). Art. 137c is also applied in cases involving anti-semitic utterances. Cf., Court of Appeal of Leeuwarden, 17 November 1981: A.D. was sentenced to a fine of Dfl. 500 (alternatively: ten days' detention) for insulting the Minister of Education. Cf., also 9 NYIL (1978) p. 302 and 11 NYIL (1980) pp. 299–300.
83. Discussed by M.B.W. Biesheuvel.
84. With a note by the Editors.
85. With a note by A.L. Melai. Summarized in DD (1982) No. 88 and ELD (1983) pp. 10 and 41. Discussed in AA (1982) p. 516 and by de Werkgroep Knelpuntcn in het Neder-landse Recht voor Ethnische Minderheden, op.cit., n. 79, pp. 15, 17 and 26.
86. Art. 429 quater: “Any person who in the exercise of his profession or business, discriminates against a person on account of his race when proffering goods or services or when fulfilling an offer, shall be liable to a term of detention [hechtenis] not exceeding one month or a fine not exceeding one thousand guilders.” Cf., 4 NYIL (1973) p. 432.
87. Reproduced in part and discussed by Myjer, E. in NJCM-Bulletin (1980) p. 389Google Scholar. Discussed by Hoens, J. in “Rassendiscriminatie en het wetsontwerp tot wijziging van Article 429 quater, Wetboek van Strafrecht” [Racial discrimination and the Bill for the amendment of Article 429 quater of the Penal Code] NJB (1981) pp. 261–262.Google Scholar
88. C.P.'s reference to the maintenance of good order was derived from the judgment of the Amsterdam District Court, of 4 December 1975, 7 NYIL (1976) p. 330.
89. For the text of Art. 429 quater as amended, see 13 NYIL (1982) p. 308. Cf., also, J. Hoens, op.cit. n. 87, pp. 259–265 and Geelhoed, L.A. in “Wijziging van artikel 429 quater van het Wetboek van Strafrecht” [Amendment of Article 429 quater of the Penal Code], AA (1982) pp. 75–80Google Scholar, with a comment by J.L. van der Neut at pp. 302–303 and a reply by Geelhoed on pp. 303–304.
90. A plea relying on the maintenance of good order was also dismissed in Public Prosecutor v. W.C.J.S., in which the Amsterdam District Court delivered judgment on 11 March 1981 (NJ (1981) No. 525, mentioned in a note in RV (1981) No. 115, summarized in ELD (1982) pp. 464 and 494). The District Court of Almelo accepted a similar plea in Public Prosecutor v. K.L.B.G.B. (Judgment of 9 December 1980, NJCM-Bulletin (1981) p. 55, with a note by M.B.W. Biesheuvel, discussed by J. Hoens, op.cit. n. 87 pp. 262–263). In cassation, the Supreme Court upheld this judgment because the District Court had come to the conclusion that B. had been refused admission to the bar not because of his race, but because of his long hair (Judgment of 1 July 1981, NJCM-Bulletin (1981) p. 328 with a note by M.B.W. Biesheuvel. NJ (1982) No. 176 with a note by A.L. Melai. Summarized in DD (1981) No. 393/394 and ELD (1983) pp. 10 and 41. Discussed in AA (1982) pp. 302–304 and p. 552 n. 31, as well as in a note to Rechtspraak Vreemdelingenrecht (1981) No. 115).
91. As it had earlier become apparent that it was difficult to prove deliberate racial discrimination in criminal proceedings, at about the same time K. and B. brought a civil action (summary proceedings) against C.P., the owner of the bar/dancehall “Cartouche” requesting the Court for an injunction prohibiting him from refusing them admission to the bar. The President of the District Court of Utrecht gave judgment for the plaintiffs, and prohibited C.P. from refusing K. and B. admission because of their race. Such a refusal was incompatible with Article 429 quater of the Penal Code, and C.P. would thus be acting in breach of his legal duty (Judgment of 21 November 1980, NCJM-Bulletin (1981) pp. 325–328, with a note by M.B.W. Biesheuvel. Discussed by J. Hoens, op.cit. n. 87, pp. 264–265). On appeal, the Court of Appeal of Amsterdam reversed this decision, on the grounds that there was insufficient urgency to justify summary proceedings (Judgment of 5 June 1981, discussed by M.B.W. Biesheuvel in NCJM-Bulletin (1981) p. 325). In cassation, the Supreme Court upheld the judgment of the Court of Appeal (Judgment of 23 April 1982, RvdW (1982) No. 92, NJ (1982) No. 523, Rechtspraak Vreemdelingenrecht (1982) No. 107 with comment by J. Hoens. Summarized in NJB (1982) p. 638). The civil approach via summary proceedings first resulted in success for the plaintiff in P.M. v. Blokker's Horeca, see 11 NYIL (1980) p. 300. The District Court of Zutphen followed suit in 1980 (Judgment of 26 June 1980, NJCM-Bulletm (1980) p. 212, NJ (1981) No. 29); and in 1981 the Amsterdam District Court (Judgment of 22 January 1981, mentioned in a note to Rechtspraak Vreemdelingenrecht (1981) No. 114) and the District Court of Alkmaar (Judgment of 23 March 1981, Rechtspraak Vreemdelingenrecht (1981) No. 112, with a note by the Editors).
Summary proceedings may lead to the imposition of a penalty sum in order to prevent damage. Once damage has actually occurred, summary proceedings are not the proper procedure. It is then possible, under Article 332 of the Code of Criminal Procedure, to bring small civil claims before the criminal courts. In Public Prosecutor v. M.G., this procedure was first followed in a case where coloured people were refused admission to a bar. In addition to a charge under Article 429 quater of the Penal Code, the Public Prosecutor brought a civil claim under Article 1408 of the Civil Code (insult). The Local Court of Amsterdam sentenced M.G. to a fine of Dfl. 500 under Art. 429 quater, and awarded damages of Dfl. 1 against him under Article 1408, since the refusal was found to be an insult to the coloured person (Judgment of 4 January 1982, mentioned in a note to Rechtspraak Vreemdelingenrecht (1981) No. 112 and discussed by the Werkgroep Knelpunten in het Neacrlandse Recht voor Ethnische Minderheden, op.cit., n. 79 pp. 28–9).
92. With a note by J.A.O. Eskes. Discussed by Elzinga, D.J. in “Rassendiscriminatie en kiesrecht uitsluitingen” (Racial discrimination and electoral exclusion), Tijdschrift voor Openbaar Bestuur (1982) pp. 434–8Google Scholar and by Nelissen, C. and van Donselaar, J. in “Verkiczings deelname van de Nederlandse Volks-Unie en de Centrumpartij” (Participation in elections by the Nederlandse Volks-Unie and the Centrumpartij), Intermediair (1982) No. 20, pp. 1–9.Google Scholar
92a. With comment by J.A.O. Eskes.
93. For the text of Art. G 3(3)(a). see Held.
94. Applications Nos. 8348 and 8406/78, Decisions and Reports(1980) p. 187, NJ (1980) No. 525, with a note by A.E. Alkema.
95. 213 UNTS p. 221, Trb. 1951 No. 154. Art. 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
96. Art. 17: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”.
97. Cfl., 11 NYIL (1980) p. 299, note 30.
98. One of the appellants was M.B.A.O., a Tunisian national resident in The Hague. The Division found his appeal against registration of the group's name admissible, since his rights had been directly affected, within the meaning of Art. 7(1) of the AROB Act. In the case referred to in note 103 infra, M.B.A.O. was also one of the appellants. In that case his appeal was declared inadmissible. Under Art. H 7(1) of the Elections Act, an objection to nominations is open to any member of the electorate, which could not be taken to include O.
99. See the judgment of the Supreme Court of 14 March 1978, cf., 10 NYIL (1979) p. 483, n. 138. With respect to the same offences committed by Hagenbeek, the Court passed judgment only on 17 June 1980, see 12 NYIL (1982) pp. 359–360.
100. Cf., 10 NYIL (1979) p. 483 n. 139.
101. On 19 April the Division reversed on the same grounds the decision of the Central Polling Office of The Hague to grant a request for registration by the “Committee for the election of J.G. Glimmerveen as a member of the municipal council of The Hague.” (De Gemeentestem (1982) pp. 194–5, with a note by J.A. Peters at p. 192). The appeal against this Polling Office's compliance with a registration request by the Centrumpartij was dismissed. In this case, the Division found insufficient evidence to show the existence of such weighty reasons that registration could be refused under Article G3(3)(a) (AROB TB/S jur. III No. 341 with comment by J.A.O. Eskes). Ibid., in respect of decisions of the Central Polling Office in Rotterdam with regard to the Volks-Unie and the Centrumpartij (NJCM-Bulletin (1982) p. 187 with a note by de Winter, R., De Gemeentestem (1982) pp. 193–4 with a note by J.A. Peters on p. 192); in Amsterdam, with regard to the Volks-Unie (AB (1982) No. 381 with a note by J.A.O. Eskes) and the Centrumpartij, and in Utrecht with regard to the Centrumpartij (De Gemeentestem (1982) pp. 192–3 with a note by J.A. Peters at p. 192).Google Scholar
102. Art. 8: “(1) Appeal to the Judicial Division of the Council of State … lies if: … (a) the decision is in contlict with a provision binding on any one;”
103. In tKese considerations the Division anticipated its judgment of 3 May 1982 on the appeal, entered by the same appellants, against acceptence of the list of candidates of M.A. Keizer by the Head Polling Office for the elections to the municipal council of The Hague. In the appellants' view, the list included supporters of the Volks-Unie. This appeal was rejected on the same grounds that were mentioned supra. In addition, the Division held that “the application of the nomination rules laid down in chapter 21 of the Elections Act in no way affects the treaty articles referred to by the appellants”, so these rules should not fail to be applied (AB (1982) No. 382, with a note by J.A.O. Eskes, AROB TB/S jur. III No. 344 with a note by J.A.O. Eskes).
104. Cf., District Court of Amsterdam, 8 March 1978, 10 NYIL (1979) pp. 482–3 and Supreme Court, 9 March 1979, 11 NYIL (1980) pp. 298–9.
105. Thus, the Centrumpartij was allowed to participate in the elections under its own name. The leaflets used for its campaign caused private individuals and foundations to institute summary proceedings before the Amsterdam District Court in order to obtain an injunction prohibiting their distribution. The President prohibited the Centrumpartij only from making the following statements in public for purposes of political propaganda: (1) that nearly a hundred thousand persons annually arrive in this country for economic and financial reasons (2) that persons belonging to ethnic minorities enjoy preference in matters of housing, employment, education and the provision of clothing and food, and (3) that 52 per cent of crimes are committed by persons belonging to ethnic minorities. Everyone should be free to participate in public discussion of the aliens policy, but the opinions expressed should be based on sufficiently serious foundations. The remarks in question had no such basis and were, therefore, in conflict with the duty of proper care (Judgment of 25 May 1982, NJCM-Bulletin (1982) p. 256 with a note by Peters, J.A., Rechtspraak Vreemdelingenrecht (1982) No. 108Google Scholar with a note by J. Hoens).
106. Considering tne greatly increased number of cases brought before Dutch courts in which the provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights are at issue, and the limited space available in the Yearbook, the Yearbook has, since Volume XII, not included complete documentation of all decisions. Only cases which are interesting from the viewpoint of general international law will henceforth be mentioned. For a complete overview, reference should be made to the annual surveys in the Yearbook of the European Covention on Human Rights, and the Cahiers de Droit Européen (for the European Convention) and in the NJCM-Bulletin (for the European Convention and International Covenants).
107. See supra n. 106.
108. With note by B.J. van der Net.
109. ILM (1967) p. 368; Trb. 1969 No. 99. Art. 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
110. For Art. 90 quater, see Held.
111. Judgment of 23 July 1968, Publ. ECHR, Series A, Vol. 6 (1968).
112. Art. 66(2): “In a Municipality that does not maintain one or more public nursery schools, it is prohibited to refuse any infant entry to the school on grounds of religion, unless the school is open only to boarders.”
113. Bijl.Hand. II 1967/68 - 9724 No. 3, p. 5.
114. Bijl.Hand. II 1967/68 - 9724 No. 5, p. 3 (Memorandum of Reply).
115. Cf., 8 NYIL (1977) pp. 276–7.
116. The Court of Appeal of The Hague elaborated on the concept of discrimination in Art. 26 of the International Covenant in a similar vein in its judgment in The Municipality of The Hague v. NV Flatgebouw Carnegieplein (but without referring to the Belgian Linguistic Case). In the Court's view, Art. 6 of the Hague Housing Regulations prescribed different treatment for otherwise equal cases according to whether the person applying for a permit wished to use the house as owner or as tenant. This resulted in unequal protection on the grounds of ownership, and should therefore be regarded as prohibited discrimination within the meaning of Art. 26. It would be different if the distinction were based on reasonable grounds, and if a reasonable proportionality had been found to exist between the means and the ends. The Court found this not to be so. (Judgment of 17 June 1982, NJCM-Bulletin (1982) p. 315, with a note by M.B.W. Biesheuvel). The Court upheld the judgment of the District Court of The Hague, of 23 June 1981. The District Court also considered the distinction between tenant and owner to be inconsistent with Ait. 14 of the European Human Rights Convention (NJCM-Bulletin (1982) p. 262, with a note by A. van Bers). The Rotterdam District Court found a similar provision in the Rotterdam Housing Regulations inconsistent not with Art 14, but with Art. 26 (Judgment of 6 May 1981, KG (1981) No. 59, NJ (1981) No. 358. Summarized in ELD (1982) pp. 46–7 and 53. Discussed by C.J.J.M. Stolker, op.cit., n. 78 p. 770 and by P. Nicolai in AA (1982) p. 109 n. 129).
117. Art. 4: “(1) All persons who are in the territory of the Kingdom shall have equal rights to protection of their person and property.”
118. Art. 137d: “Any person who, by means of the spoken or written word or pictorially with intent publicly incited to hatred of or discrimination against other persons or to violence against the person or property of others on account of their race, religion or beliefs, shall be liable to a term of imprisonment not exceeding one year or a fine not exceeding ten thousand guilders.”
119. Art. 6(1)(a) provides that, in order to be registered as an applicant for accommodation, “one must be a male inhabitant, 18years of age or older, and with plans to marry”.
120. Art. 26 see supra n. 109.
121. Art. 11 see supra n. 72.
122. On the same day, C.d.R. requested the President of the Judicial Division of the Council of State for an injunction ordering the decision to be stayed. The President granted the request on the same grounds and the Judicial Division in the present judgment (Judgment of 10 May 1979, AB (1979) No. 472, with note by J.H. van der Veen, De Gemeentestem (1979) p. 636, with a note by P. van Zanten. Discussed by L. Soumete in AA (1981) p. 566, by Alkema, E.A. in Advocatenblad (1981) p. 310Google Scholar, by M.C. Burkens in a note to AROB TB/S, jur. VII, No. 147 and by E.M.H. Hirsch Ballin in AA (1982) pp. 246–7). For an analogous case, cf. 10 NYIL (1979) p. 494.
123. Art. 66 see supra n. 76.
124. Art. 8(1)(a) sec supra n. 102.
125. Note by J.C. Schultsz.
126. Art. 2: “The present Convention shall not apply – (1) … (6) to actions and recourse actions by or against social insurance institutions, other similar institutions and public automobile guarantee funds, and to any exemption from liability laid down by the law which governs these institutions.”
127. The judgment of the District Court is dated 1 March 1979 and that of the Court of Appeal 24 June 1980, Institute's Collection No. 1719.
128. The Supreme Court had referred the case to the Amsterdam Court of Appeal on 2 June 1981 after reversing the decision of the Court of Appeal of The Hague of 4 November 1980, in which B. had been given the same prison sentence. The Supreme Court held the evidence submitted by witnesses to the Court of Appeal to be invalid (NJ 1981 No. 485, with a note by Th.W. van Veen).
129. With a comment by W.H. Vermeer.
130. Trb. 1954 No. 120. Art. 3: “The Netherlands authorities, recognizing that it is the primary responsibility of the US authorities to maintain good order and discipline where persons subject to US military law are concerned, will, upon the request of the US authorities, waive their primary right to exercise jurisdiction under Article VII, except where they determine that it is of particular importance that jurisdiction be exercised by the Netherlands authorities. The United States assumes the responsibility for custody pending trial. The US authorities will make these people immediately available to Netherlands authorities upon their request for purposes of investigation and trial and will give full attention to any other special wishes of the appropriate Netherlands authorities as to the way in which custody should be carried out.”
131. MRT (1982) p. 60.
132. Cf. Schermers, H.G., Internationaal Publiekrecht voor de Rechtspraktijk (Public International Law in legal practice) (Deventer, Kluwer, 1982) p. 165.Google Scholar
133. Discussed by D. Kokkini-Iatridou in AA (1982) Katern 5 p. 186.
134. Stb. 1946 No. 278; Trb. 1977 No. 40; 2 UNTS p. 40. Art. VIII (1): “In addition to the obligations assumed under other articles of this Agreement, each member undertakes the obligations set out in this Article.
135. Art. VIII(2)(b): “Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member. In addition, members may, by mutual accord, co-operate in measures for the purpose of making the exchange control regulations of either member more effective, provided that such measures and regulations are consistent with this Agreement.”
136. Discussed by Kuyper, P.J. in “De rol van de Europese Gemeenschap in het Europees-Amerikaans turbineconflict” [The role of the European Community in the European-American turbine conflict], 36 Internationale Spectator (1982) pp. 630–638 at p. 637Google Scholar, by Schorer, K.F.H. in “De Sovjet aardgasleiding naar West-Europa” [The Soviet gas pipeline to Western Europe], Atlantisch Perspectief (1982) No. 5, pp. 9–18 at p. 15Google Scholar, by de Boer, Th.M. and Kotting, R. in “President Wijnholt v. President Reagan”, Nederlands Juristenblad (1982) pp. 1177–1186Google Scholar and by Dekker, I.F. and Schrijver, N.J. in Ars Aequi (1983) Katern 6 pp. 220–1.Google Scholar
136a. With a comment by J. Basedow on pp. 147–72.
137. Published in ILM (1982) pp. 864–866. The present case was concerned in particular with Section 385.2(c) as revised: “(1) As authorized by section 6 of the Export Administration Act of 1979, prior written authorization by the Office of Export Administration is required for foreign policy reasons for the export or re-export to the USSR of oil and gas exploration, production, transmission or refinement goods of US origin as defined in CCL entries 6098F, 6191F, 6388F, 6389F, 6390F, 6391F, 6431F, 6491F, 6598F, 6685F, 6779F and 6780F. Also included in the scope of this control are technical data of US origin (other than that authorized under General License GTDA) related to oil and gas exploration, production, transmission and refinement and other goods that require a validated export license for shipment to the Soviet Union and that are intended for use in oil or gas exploration, production, transmission or refinement. The foreign product of such data is also controlled (Par. 379.8). The term “refinement” includes refinery operations directed to energy usage, but excludes petro-chemical feedstock processes. In addition, prior written authorization is required for the export to the USSR of non-US origin goods and technical data by any person subject to the jurisdiction of the United States.
(2) For the purposes of this Par. 385.2(c) only, the term “person subject to the jurisdiction of the United States” includes: (i) any person, wherever located, who is a citizen or resident of the United States; (ii) any person actually within the United States; (iii) any corporation organized under the laws of the United States or of any state, territory, possession, or district of the United States; or (iv) any partnership, association, corporation, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (i), (ii), or (iii) of this section.”
138. 285 UNTS p. 231; Trb. 1956 No. 40. For the text of Art. XXIII, see Held.
139. Sensor was a subsidiary of Geosource International (Nederland) BV, which, in turn, was a subsidiary of Geosource Inc., an American company located in Texas.
140. The President here considered that since the parties had made no choice of law, the contract was governed by the law of the country with which it was most closely connected, to wit the Netherlands, because the party required to make the characteristic performance, had its registered office in the Netherlands at the time the contract was concluded. The President referred to Art. 4 of the EEC Convention on the Law applicable to Contractual Obligations, of 19 June 1980, that has been signed but not yet ratified by the Netherlands (Trb. 1980 No. 156).
141. Kuyper, op.cit. n. 136, p. 637 and De Boer and Kotting, op.cit. n. 136 p. 1184 find the arguments of the President of the District Court to be largely parallel to those advanced in a Note of 12 August 1982, by the European Communities, which contains comments on the US Regulations. The text of this Note appears at ILM (1982) pp. 891–904. Cf. also, Dekker, I.F. and Schrijver, N.J. in Ars Aequi (1982), Katern 5 p. 189.Google Scholar
142. On the same day the Court of Appeal upheld the decision of the Rotterdam District Court of 27 May 1981 (S & S (1982) No. 4), dismissing the request by Ocean Trade Company, Saudi Europe Line Ltd. and Saudi International Shipping Company for an injunction ordering strikers and the ITF to stop obstructing entry to the ship and the operations necessary to make the ship ready to sail (S & S (1982) No. 81). Similarly, with regard to the judgment of the Rotterdam District Court of 22 May 1981 (S & S (1982) No. 3), granting the request by strikers and the ITF for an injunction ordering Saudi International Shipping Company and R.L., the ship's master, to supply food to the plaintiffs (S & S (1982) No. 80). Cf. ter Kuile, L.F.D., “International Issues on Collective Agreements of Seafarers” in Essays on International and Comparitive Law in Honour of Judge Erodes, The Hague, Nijhoff, 1983, pp. 92–103CrossRefGoogle Scholar and Korthals Altes, A., “Seamen's Strikes and Supporting Boycotts”Google Scholar, ibid., pp. 104–21
142a. S & S (1982) No. 5.
143. This choice of law criterion prevailed, in the Court of Appeal's view, even over the law of the flag state, which it held to be applicable in principle. With reference to this finding, the District Court of Middelburg applied the law of the flag state (Panama) in a similar dispute in K.B. and 12 other members of the crew of the “Bernhard Oldendorff” v. Wursata Shipping Corporation (Judgment of 30 June 1982, S & S (1982) No. 114).
144. Trb. 1980 No. 156.
145. For a different refutation of such an argument, cf., District Court of Amsterdam, 30 November 1978, 10 NYIL (1979) pp. 503–4 (where, erroneously, this judgment was ascribed to the Rotterdam District Court and the argument in question to the plaintiffs instead of the defendants).
146. Summarized in Tijdschrift voor Milieu en Recht (1982) p. 184Google Scholar, with a note by F.M. Meijer Drees.
147. A year earlier, the President had dismissed a request by the Stichting Natuur en Milieu for an order staying a similar permit granted by the Minister to ECN. The President failed to see how a permit for dumping at sea in an area situated approximately 1800 km from the Netherlands, could directly affect the interests of a foundation established in the Netherlands (Judgment of 10 June 1980, summarized in WRvS (1980) No. G 51). In the present judgments, this view was not expressed. Both the President and the Crown dismissed the appeal of the 21 private persons for lack of personal interest, while the appeal of the Stichting Werkgroep Noordzee was rejected because, under its articles of association, its interests covered only the North Sea.
148. De Gemeentestem (1981) p. 253 with note by Kan, J.A.. Summarized in Tijdschrift voor Milieu en Recht (1981) p. 200Google Scholar, with note by F.M. Meijer Drees.
149. ILM (1972) p. 1291.
150. Official Journal of the European Communities 221/59.
151. Decree of 10 September 1969, Stb. 1969 No. 404.
152. The documents submitted by the Minister included the following guidelines issued by the Nuclear Energy Agency (NEA): (1) Recommended Operational Procedures for Sea-Dumping of Radio-active Waste, Paris 1979, and (2) Guidelines for Sea-Dumping Packages of Radioactive Waste, Paris 1979; and the IAEA guideline: Packaging of Radio-active Wastes for Sea disposal, IAEA-TECDOC-204, Vienna 1981. In the Minister's opinion, these guidelines followed the recommendations laid down in the “Revised Definition and Recommendations of 1978 concerning Radio-active Wastes and other Radio-active Matter referred to in Annexes I and II to the Convention” (International Atomic Energy Agency, IAEA, Vienna 1978 INFCIRC/205/Add.1/Rev.1).
153. Article IV (2): “Any permit shall be issued only after careful consideration of all the factors set forth in Annex III, including prior studies of the characteristics of the dumping site as set forth in Sections B and C of that Annex.”
154. Annex III (c)(4): “The practical availability of alternative land-based methods of treatment, disposal or elimination, or of treatment to render the matter less harmful for dumping at sea.”
155. Even before the President of the Afdeling Contentieux had dismissed the request for staying ECN's permit for 1982, on 16 August 1982 (summarized in WRvS (1982) No. G. 417), the Greenpeace Organisation announced anti-dumping action on the spot, as in previous years. This caused the interested parties, viz. ECN, United Kingdom Atomic Energy Authority and the Belgian Nuclear Energy Study Centre SCK/CEN, to institute summary proceedings before the District Court of Amsterdam, requesting injunctions prohibiting the Dutch and British Greenpeace organisations from taking action with their action ships “Sirius”, owned by the Dutch organisation, and “Cedar Lea” owned by the British organisation, against the dumping ships “Scheldeborg”, “Gem” and “Rijnborg”. The President considered the actions should not be judged by reference to the existing national or international statutory or conventional rules which, if strictly applied, would not leave any room for taking action intended to serve a generally accepted social purpose, but to criteria tailored to the particular case. As it was not yet clear what kinds of action would be taken against the “Scheldeborg”, testing actions against such criteria was impossible in this case, except as far as the intention to prevent dumping was concerned. This intention exceeded the limits of what was acceptable in this case, and was prohibited. (Judgment of 26 August 1982, KG (1982)' No. 154). Meanwhile, the actions against the other ships were clear, and after testing them against the criteria referred to, the President first prohibited the dumping ships from being boarded with the purpose of preventing or impeding dumping (this could provoke violent reactions from the crew, which was contrary to the no-violence rule in Greenpeace's articles of association). Thus, there was no general prohibition from boarding all dumping ships. The Court further prohibited action ships from navigating, in respect of dumping ships, contrary to the rules of navigation at sea and, finally, it forbade navigation in rubber boats in or near the place where the containers were to be dropped (too dangerous). This last prohibition only applied to the “Rijnborg” (Judgment of 16 September 1982, KG (1982) No. 162, NJ (1983) No. 260) and not to the “Gem”. With regard to the latter ship, navigation in rubber boats was not prohibited, since the fencing on the “Gem” (cages) prevented interference (Judgment of 9 September 1982, KG (1982) No. 161). Cf. also Plant, G. in “Civilian Protest Vesselsand the Law of the Sea”, supra pp. 133–4, 158–9.Google Scholar
156. Summarized in WRvS (1982) No. III. 19.
157. Stb. 1975 No. 352; 7 NYIL (1976) p. 372. Art. 4: “It is prohibited to discharge or take aboard a vessel or aircraft with the aim of discharging, or deliver with the aim of discharging any waste or pollutant or noxious substances other than those covered by Art. 3(1) unless exemption is granted.”
158. The “Loswal Noord” is situated in Block Q 16 of the Netherlands part of the Continental Shelf, see 13 NYIL (1982) p. 397.
159. Cf. 11 NYIL (1980) pp. 319–322. The previous exemption had still to be challenged before the Judicial Division of the Council of State because Article 10 of the Marine Pollution Act allowed administrative appeal, at that time, only to the party requesting exemption. Since the entry into force, on 1 September 1980, of the Act of 13 June 1979 introducing general provisions on the environment (Stb. 1980 No. 443), administrative appeal (up to the level of the Crown) is also open to third parties.
160. Art. 3: “(1) It is prohibited to (a) discharge, or (b) take (substances) aboard a vessel or aircraft with the aim of discharging, or (c) deliver with the aim of discharging any waste, pollutant or noxious substances indicated by Royal Decree. (2) Para. 1 does not apply to substances which constitute no more than a trace in a mixture with other substances and which have not been added to these other substances specifically for the purposes of discharge.”
161. The lack of an alternative location was also one of the grounds on which the President of the Judicial Division of the Council of State based his decision to dismiss the request under Art. 80 of the Council of State Act in the case of the Stichting Natuur en Milieu and three others v. the Minister of Transport and Waterworks. On 16 January 1981, Estel/Hoogovens had been granted exemption by the Minister to dump dredged spoils from the Hoogoven harbours into the North Sea. The appellants had entered an appeal against the exemption and requested suspension pending appeal. The principal reason, however, why this request was refused was the fact that, at the time it was being dealt with, the spoils had already largely been dumped, so that the appellants' interests in suspension no longer existed (Judgment of 10 February 1981, summarized in WRvS (1981) No. R 797.
162. Note by Th.W. van Veen. Summarized in DD (1982) No. 46 and ELD (1982) pp. 509–10 and 554.
163. AD (1949) No. 141.
164. 82 UNTS p. 279; Stb. 1946 No. G 5. Art. 6: “The Tribunal established by the Agreement referred to in Art. 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) …; (b) War crimes: namely, violations of the law or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;…”
165. De Martens NRG, 3rd series, Vol. III p. 486; Stb. 1910 No. 73; Trb. 1966 No. 281. Art. 46: “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. …”
166. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 6(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.”
167. Nevertheless, the District Court considered there was no question of limitation, since the time-limit of the Code of Military Criminal Law was applicable, viz., 24 years, and an act of prosecution had taken place within this limit, namely, notification of the sentence of 1949 on the notice board of the District Court of Leeuwarden on 9 April 1968.
168. Stb. 1971 No. 210. Cf. 4 NYIL (1973) pp. 433–435.
169. Protocol for the Prohibition of the use in War of Asphyxiating, Poisonous or other Gases and of Bacteriological Methods of Warfare, 94 LNTS p. 65; Stb. 1930 No. 422.
170. Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
171. Art. 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
172. In criminal proceedings against P.F.v. D., the District Court of Arnhem also rejected the plea that the use of tear gas by police during demonstrations near the Dodewaard nuclear reactor in 1981 was contrary to the Protocol. The Arnhem Court found “that it is reasonable for (CS) tear gas to be included in the 1925 Geneva Protocol because its use might drive opponents away from their shelter after which they might be killed, and because it could escalate to the use of deadly gases; neither of these situations is involved in the handling of internal disturbances of the peace” (Judgment of 4 January 1982, discussed by Kalshoven, F. in “Traangas: mag dat?” (“Tear gas: permissible?”) 56 Nederlands Juristenblad (1981) pp. 990–1Google Scholar). On 23 November 1982, the Court of Appeal upheld this judgment Cf., also, Rabus, W.G., “Het verbod op gassen als oorlogswapen” (The ban on gases as weapons in war), Het Tijdschrift voor de Politie (1982) pp. 471–475Google Scholar, and, for the standpoint of the Netherlands Government, Aanh. Hand. II 1981 p. 495.
173. With a comment by the Editors.
174. Trb. 1972 No. 34. For the text of Art. 27, see Held.
175. 40 UNTS p. 45; Trb. 1965 No. 88. For the text of Art. 16 see Held.
176. 26 European Yearbook (1978) p. 363.Google Scholar
177. In support of his view on the applicability of Art. 27(a) the complainant submitted a report by Prof.Dr. H. Meijers.
178. DETAM has appealed against the decision of the Raad van Beroep to the Centrale Raad van Beroep in Utrecht.
179. Bijl.Hand. II 1971/72 - 11806 No. 2.
180. Trb. 1966 No. 122.
181. Bijl.Hand. II 1965/66 - 8368 No. 2.
182. Convention concerning equality of treatment of nationals and non-nationals in social security, 28 June 1962, 494 UNTS p. 271; Trb. 1962 No. 122.
183. Bijl.Hand. II 1975/1976 - 13 682 No. 6 p. 2.
184. Trb. 1973 No. 130.
185. Summarized and discussed by Fase, W.J.P.M. in Sociaal Maandblad Arbeid (1982) pp. 124–30.Google Scholar
186. 359 UNTS p. 89, Trb. 1962 No. 3. Article 6), “The right to bargain collectively. With a view to ensuring the effectfve exercise of the right to bargain collectively, the Contracting Parties undertake: (1) to promote joint consultation between workers and employers; (2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulations of terms and conditions of employment by means of collective agreements;…”
187. ILO Convention concerning freedom of association and protection of the right to organize, of 9 July 1948, 68 UNTS p. 18; Stb. 1949 No. J. 538.
188. ILO Convention concerning the application of the principles of the right to organize and to bargain collectively, of 1 July 1949, 96 UNTS p. 257; Trb. 1972, No. 105.
189. ILM (1967) p. 360; Trb. 1969 No. 100. Art. 8: “(1) The States Parties to the present Covenant undertake to ensure: … (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; …”
190. The President of the District Court of The Hague had reached this conclusion a year before, in summary proceedings instituted by the Industriebond FNV against the State in respect of a similar wage control measure for 1981. The FNV then invoked the same treaty provisions (apart from ILO Convention No. 98) (Judgment of 19 December 1980, see 13 NYIL (1982) p. 415 n. 289).
191. Art. 10(1): “The Minister may establish rules concerning wages and other conditions of work capable of being expressed in money, if he considers the interests of the national economy, in conjuction with other measures, require this.”