No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 07 July 2009
1. Note by A.R. Bloembergen.
2. Note by P.J. Wattel; LJN No. AA2756 (www.rechtspraak.nl); summarised in NJB (1999) No. 43, p. 1008; discussed by Zwemmer, J.W. in AA (1999) p. 668Google Scholar, and by Martens, S.K., ‘De grenzen van de rechtsvormende taak van de rechter’ [The limits of the law-making function of the courts], NJB (2000) pp. 747–758, at pp. 750 et seq.Google Scholar
3. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 100. 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.’
4. 213 UNTS p. 221; ILM (1984) p. 1027; ETS No. 5; Trb. 1951 No. 54. Art. 14 reads: ‘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.’
5. 213 UNTS p. 262; ETS No. 9; Trb. 1952 No. 80. Art. 1 reads: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
6. The Supreme Court does not indicate in this finding or in subsequent findings how it arrives at the conclusion that there is a right to effective legal protection. The Advocate General refers in his opinion in this connection to Art. 2(3) of the International Covenant on Civil and Political Rights. According to Martens, when the judgment of the President of the Supreme Court was given, the Supreme Court also took account of Art. 13 of the European Convention, see supra n. 2, p. 750.
7. With note by P. Boeles.
8. Trb. 1990 No. 145, OJ 2000 L239, p. 19.
9. Art. 114 reads: ‘1. Each Contracting Party shall designate a supervisory authority responsible in accordance with national law for carrying out independent supervision of the data file of the national section of the Schengen Information System and for checking that the processing and use of data entered in the Schengen Information System does not violate the rights of the data subject. For this purpose, the supervisory authority shall have access to the data file of the national section of the Schengen Information System. 2. Any person shall have the right to ask the supervisory authorities to check data entered in the Schengen Information System which concern them and the use made of such data. That right shall be governed by the national law of the Contracting Party to which the request is made. If the data have been entered by another Contracting Party, the check shall be carried out in close coordination with that Contracting Party's supervisory authority.’
10. France did not enter an appearance.
11. Art. 111 reads: ‘1. Any person may, in the territory of each Contracting Party, bring before the courts or the authority competent under national law and action to correct, delete or obtain information or to obtain compensation in connection with an alert involving them. 2. The Contracting Parties undertake mutually to enforce final decisions taken by the courts or authorities referred to in paragraph 1, without prejudice to the provisions of Article 116.’
12. Note by Kuijpers, A.M. and Spijkerboer, T.. The annotators wondered in particular why the Protocol on Asylum for Nationals of Member States of the EU of 1997 (OJ 1997 No. C340, p. 103Google Scholar) had not been considered either by the court or by the State Secretary.
13. Note by B.P. Vermeulen.
14. Note by H. Battjes. LJN No. AA6176 (www.rechtspraak.nl).
15. For the text of Art. 3, see under Held.
16. 1465 UNTS p. 85; ILM (1984) p. 1027; Trb. 1985 No. 69. For the text of Art. 3, see under Held.
17. NJ (2000) No. 540, with note by T.M. Schalken. LJN No. AA5215 (www.rechtspraak.nl). The argument based on the Convention against Torture was rejected by the Supreme Court on the grounds that the only person entitled to assess torture already suffered was the Minister of Justice, who decides on whether the extradition is granted. The argument based on the political nature of the offence was rejected because Z. had not gone into sufficient detail.
18. Mr Arzuaga was Z.'s representative in the proceedings and his lawyer in Spain.
19. With note by C. Lambers. See also LJN No. AD5493 (www.rechtspraak.nl). Discussed by van Kampen, T.A., ‘De ontdekking van art. 1 Eerste Protocol EVRM: een toereikende basis voor rechtsbescherming bij aantasting van verkregen rechten?’ [The discovery of Art. 1 of the First Protocol to the European Convention on Human Rights: an adequate basis for legal protection when vested rights are impaired?], Nederlands Tijdschrift voor Bestuursrecht (2002) No. 3, pp. 58–66.Google Scholar
20. Art. 120 reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’
21. Stb. 1998 No. 236. The Act came into force by Decree of 21 April 1998, Stb. 1998 No. 237.
22. Now Art. 34; see consolidated text in OJ 1997 No. C340, p. 173 and Trb. 1998 No. 13.
23. OJ 1975 No. L 282, p. 1.
24. For a further explanation, see under Held.
25. 213 UNTS p. 262; ETS No. 9; Trb. 1952 No. 80. Art. 1 reads:
‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
26. The ‘non-linked’ manure production right is that part of the manure production right which exceeds the right attached to the land, namely the right to produce 125 kilograms of phosphate per year per hectare of the average agricultural land belonging to the area of the business in the year concerned. This right can be transferred, with the exception of the ‘latent’ manure production. The latent manure production is the difference between the volume of manure actually produced on a farm and the higher production volume permitted on the basis of the available manure production rights.
27. Art. 14 reads: ‘1. Expropriation may take place only in the public interest and on prior assurance of full compensation, in accordance with regulations laid down by or pursuant to an Act of Parliament. 2. Prior assurance of full compensation shall not be required if in an emergency immediate expropriation is called for. 3. In the cases laid down by or pursuant to an Act of Parliament there shall be a right to full or partial compensation if in the public interest the competent authority destroys property or renders it unusable or restricts the exercise of the owner's rights to it.’
28. JM (1999) No. 34 with note by C. Lambers, W.T. Douma and R.L. Vucsan. The District Court gave the State until 26 January 1999. As NVV et al. considered that the State would not succeed in adducing proof they applied for an interim injunction on 29 January 1999 after the State had appealed to the Court of Appeal in The Hague on 13 January and had thus obtained a stay of execution of the judgment of the District Court. In the application they applied for an interim injunction excluding application of Chapters II-IV of the Act until it had been decided in the proceedings on the merits that the Act was not contrary to Article 1 of the First Protocol or until provision had been made for an adequate compensation scheme. The President of the District Court granted the injunction (judgment of 23 February 1999, JM (1999) No. 46, with note by C. Lambers, JB (1999) No. 61, with note by A.W. Heringa, M&R (1999) No. 29 with note by Hoitink). This judgment was upheld on appeal by the Court of Appeal of The Hague (judgment of 10 June 1999, JM (1999) No. 97 with note by Hoitink, JB (1999) No. 160, M&R (1999) No. 72). Finally, the Supreme Court dismissed the appeal in cassation by the State (judgment of 19 May 2000, RvdW (2000) No. 134C, JB (2000) No. 267, summarised in NJB (2000) No. 134C, p. 1156, LJN No. AA5870 (www.rechtspraak.nl).
29. JM (2000) No. 38, with note by C. Lambers, JB (2000) No. 59, with note by Vernimmen de Jong, M&R (2000) No. 22 with note by Hoitink and H.J. Lans, LJN No. AA4386 (www.rechtspraak.nl), discussed by Douma, W.T. in ‘De Wet herstructurering varkenshouderij gedeeltelijk onverenigbaar met gemeenschappelijke marktordening’ [The Pig Farming Restructuring Act partly incompatible with the common organisation of the market], Nederlands Tijdschrift voor Europees Recht (2000) pp. 66–65Google Scholar, and by de Haan, P. ‘Het Haagse Hof in het mestmoeras: een doodlopende weg’ [The Hague Court of Appeal bogged down in the manure morass: a cul-de-sac], 75 NJB (2000) pp. 972–974Google Scholar. After the judgment of the Court of Appeal, the State announced that the previous judgment of the District Court of 23 December 1998 and 23 February 1999 had ceased to apply as a result of the judgment on appeal and that the Act once again applied to the 13 pig fanners in respect of the first reduction of 10%. NVV et al. then applied to the District Court of The Hague for an interim injunction and disputed this review. However, the President held that the State was in the right (judgment of 4 April 2000, JM (2000) No. 70, with note by W.T. Douma).
30. See also LJN No. AA6680 (www.rechtspraak.nl).
31. For the text of the provisions of B1/20 see under Held.
32. 596 UNTS p. 261. For the text of Art. 46 see under Held.
33. Note by R.J.N. Schlossels. See also LJN No. AA7335 (www.rechtspraak.nl).
34. For the text of Art. 4.2.23 see under Held.
35. 15 UNTS p. 295; Stb. 1947 No.H 165.
36. Trb. 1999 No. 108, p. 3. This concerned the collective publication of all annexes introduced up to that date. Mention was also made of the fact that the annexes would not be printed in the Dutch Treaty Series, but would instead be deposited for inspection at the Directorate-General of Civil Aviation (Rijksluchtvaartdienst).
37. Art. 93 reads: ‘Provisions of treaties and decisions by international organisations which may be binding on all persons by virtue of their contents shall become binding after they have been published’.
38. For the text of Art. 38 see under Held.
39. The District Court used the Dutch translations.
40. The District Court used the English text.
41. Note by H. Battjes.
42. Note by B.P. Vermeulen.
43. Note by B.P. Vermeulen; see also LJN No. AD6140 (www.rechtspraak.nl).
44. For the text, see under Held.
45. OJ 1997 No. C254 p. 1; Trb. 1991 No. 129.
46. 189 UNTS p. 137; Trb. 1951 No. 31, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76.
47. RV (2000) No. 1, with note by A.B. Terlouw, JV (2000) No 103 with note by T. Spijkerboer, NAV (2000) No. 110 with note by K. Zwaan and AB (2000) No. 284 with note by B.P. Vermeulen. Also discussed by Kroese, S. Stenferd and Bruin, R. in ‘De EHRM-uitspraak over T.I. versus het Verenigd Koninkrijk en de nationale rechtspraktijk’ (The judgment of the European Court of Human Rights in the case of T.I. v. the United Kingdom and national legal practice), NAV (2001) pp. 636–643.Google Scholar
48. For the text of Art. 3(4) see under Held.
49. According to Battjes (see supra n. 41) the Administrative Law Division of the Council of State departs here from the line of the ‘generic test’ established after the judgment of the European Court by various District Courts. They held, for example, that the State Secretary was obliged to examine the safeguards offered to the asylum seekers by the other State Party to the Convention. It follows that whether the asylum seeker had instituted or completed proceedings there was not relevant. See for example District Court of The Hague (sitting in Zwolle) 13 December 2000, RV No. 17, with note by H. Battjes.
50. Note by C.A. Groenendijk. See also LJN No. AA8384 (www.rechtspraak.nl).
51. Stb. 1878 No. 137.
52. 285 UNTS p. 231; Trb. 1956 No. 40.
53. For the text of Art. 1 see under Held.
54. Stb. 1878 No. 137.
55. See also LJN No. AA77995 (www.rechtspraak.nl).
56. 1155 UNTS p. 331; 8 ILM (1969) p. 679; Trb. 1972 No. 51. Art. 31(1) reads: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’
57. Trb. 1986 No. 65. Art. 2 reads: ‘1. This Convention shall apply to taxes on income imposed on behalf of each of the States, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income or taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amount of wages or salaries paid by enterprises, as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are in particular: (a) in Canada: the income taxes imposed by the Government of Canada […]; (b) in the Netherlands: the income tax [de inkomensbelasting], the wages tax [de loonbelasting], the company tax [de vennootschapsbelasting], including the Government share in the net profits of the exploitation of natural resources levied pursuant to the Mining Act 1810 (Mijnwet 1810) with respect to concessions issued from 1967, or pursuant to the Netherlands Continental Shelf Mining Act of 1965 (Mijnwet Continentaal Plat, 1965), the dividend tax [de dividendbelasting], (hereinafter referred to as ‘Netherlands tax’).’
58. For the text of Art. 24(3), see under Held.
59. Act of 24 December 1970, Stb. 1995 No. 71. Art. 37(5) reads: ‘The exemption referred to in paragraph 1 (a) does not apply if one of the bodies is established in one of the Member States of the European Union.’
60. 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.’
61. Art. 14 reads: ‘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.’
62. 213 UNTS p. 262; ETS No. 9; Trb. 1952 No. 80; Art. 1 reads: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
63. Art. 37 reads: ‘1. Subject to conditions to be imposed by Us by order in council, the contribution of capital is exempted from taxation: (a) in the case of a merger, division or internal reorganisation; (b) in a case where a body with a capital divided into shares is converted into another such body; (c) in the case of bodies that serve an object in the public interest, if only public law bodies may hold the shares under the articles of association; […] 2. The exemption referred to in paragraph 1 (a) shall apply only if: […] (b) a body with a capital divided into shares acquires, in consideration of the allocation of its own shares, exclusively all the assets and liabilities or the entire enterprise or an independent part thereof of another such body; […].’
64. The Court used the Dutch text.
65. Finding of law 6.3 reads: ‘It can be inferred from the official commentary, which can, according to Van Raad himself, serve as an “additional means of interpretation” within the meaning of Article 32, that a grammatical and textual interpretation of a treaty provision should take precedence. Only if the literal text, when interpreted in accordance with the ordinary meaning of the words, results in uncertainties, errors or completely unfair results, may other interpretations be used.’
Commentary to Article 31. ‘11. […] Moreover, the jurisprudence of the International Court contains many pronouncements from which it is permissible to conclude that the textual approach to treaty interpretation is regarded by it as established law. In particular, the Court has more than once stressed that it is not the function of the interpretation to revise treaties or to read into them what they do not, expressly or by implication, contain. 12. Paragraph 1 […] ‘The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter.’ And the Permanent Court in an early Advisory Opinion stressed that the context is not merely the article or section of the treaty in which the term occurs, but the treaty as a whole: ‘In considering the question before the Court upon the language of the Treaty, it is obvious that the Treaty must be read as a whole, and its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense. 17. Paragraph 4 […] Other members, while not disputing that the technical or special meaning of the term may often appear from the context, considered that there was a certain utility in laying down a specific rule on the point, if only to emphasise that the burden of proof lies on the party invoking the special meaning of the term.’
66. OJ 1969 L 249, p. 25.
67. Note by H.A. Ahmad Ali. See also LJN No. AA6166 (www.rechtspraak.nl).
68. 1315 UNTS p. 203; Trb. 1981 No. 35. For the relevant passages in the Annex, see under Held.
69. For the relevant passages, see under Held.
70. For the text of Art. 9 see under Held.
71. For the text of the Preamble and Art. 8 see under Held.
72. 1041 UNTS p. 311; Trb. 1975 No. 133.
73. Summarised in ABkort (1999) No. 615; LJN No. AA5389 (www.rechtspraak.nl).
74. 516 UNTS p. 205; Trb. 1959 No. 123. Art. 18(2) reads: ‘Charges may be levied upon a foreign ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination.’
75. 509 UNTS p. 64; Trb. 1960 No. 69. Art. 32 reads: ‘1. Where the applicability of any legal provision depends upon the question within which territory a vessel is situated or through which territory its course lies, the following – save as otherwise provided in this Treaty or in other international treaties to which both Contracting Parties are parties – shall apply with respect to the Ems Estuary: German vessels shall be deemed to be within the territory of the Federal Republic, and Netherlands vessels shall be deemed to be within the territory of the Kingdom of the Netherlands. Vessels of a third country shall be deemed to be within the territory of the State: (a) in which the first port of destination is situated, in the case of incoming vessels, (b) in which the last port of departure is situated, in the case of outgoing vessels, (c) in which the port of destination is situated, in the case of vessels proceeding between a port on the Ems Estuary and another port on or above the Ems Estuary. 2. The terms of paragraph 1 shall also apply to persons and objects on board.’
76. Art. 15 reads: ‘1. The coastal State must not hamper innocent passage through the territorial see. 2. The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial sea.’
77. De Martens NRG, 1st Series, Vol. 20, p. 355; Stb. 1869 No. 37; Trb. 1955 No. 161. Art. 1 reads: ‘The navigation of the Rhine and its estuaries from Basle to the open sea either down or up stream shall be free to the vessels of all nations for the transport of merchandise and persons on the condition of conforming to the provisions contained in this Convention and to the measures prescribed for the maintenance of general safety. Apart from these regulations no obstacle of any kind shall be offered to free navigation. The Leek and the Waal are considered as being part of the Rhine.’ [English text of the Convention presented to the UK Parliament in August 1964.]
78. Art. 3 reads: ‘1. No duty based solely on navigation may be levied on vessels or their cargoes or on rafts navigating on the Rhine or its tributaries in so far as they are in the territory of the High Contracting Parties or on the navigable waterways mentioned in Article 2. Equally forbidden is the levying of dues for mooring or anchoring in the navigable waterways mentioned in the preceding paragraph above Rotterdam and Dordrecht.’
79. Discussed by Klip, A.H. and Mackarel, M. in 75 NJB (2000) pp. 450–451.Google Scholar
80. For the texts of the instruments see below under Held of the case mentioned under 12.273 ICTY.
81. Art. 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.’
82. See Annotated Leading Cases of International Criminal Tribunals. The International Criminal Tribunal for the Former Yugoslavia, 1993–1998, Vol. I (1999) p. 211Google Scholar, with note by A. Klip.
83. LJN No. AD3266 (www.rechtspraak.nl).
84. For further information, see under Held.
85. Art. 6(1) reads: ‘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.’
86. Trb. 1994 No. 189.
87. 32 ILM (1993) p. 1192, Trb. 1993 No. 168. For the text of Art. 9 see under Held.
88. For the text of Art. 103 see under Held.
89. After this judgment Milošević lodged a complaint with the European Court of Human Rights against the State of the Netherlands. He alleged that his right to contact with his lawyers had been infringed during the preparations for this action. He had thereupon applied to the President of District Court of The Hague for an interim injunction restraining the State of the Netherlands and the Tribunal from continuing this infringement. The President once again ruled, on grounds corresponding to those in the judgment of 31 August 2001, that he did not have jurisdiction to hear the application. He noted, ex abundantia, that the State's counsel had informed him that she had learned from the clerk of the Tribunal that Milošević's counsel would not be barred from access to Miloševiæ in the preparation of the proceedings before the European Court of Human Rights and that he was able to communicate confidentially with him. The President had previously dismissed the request for a default judgment against the Tribunal and had granted the Tribunal's claim to immunity. He held in this connection as follows: “Article 105(1) of the Charter provides that the UN shall enjoy in the territory of each of its Member States such privileges and immunities as are necessary for the exercise of its functions and the fulfilment of its purposes. The Convention on the Privileges and Immunities of the United Nations is declared applicable to the Tribunal in both Article 30(1) of the Statute, which forms part of Resolution 827, and in Article IV of the Headquarters Agreement. Article II of the Immunities Convention and Article VIII of the Headquarters Agreement provide that ‘The United Nations or, as the case may be, the Tribunal […] shall enjoy immunity from every form of legal process, except insofar as in any particular case it [i.e., the United Nations or, as the case may be, the Tribunal] has expressly waived its immunity’. It follows that the Tribunal is entitled to claim immunity. It has, after all, been established that the Tribunal has not waived this immunity in this case. The plaintiff's submission that the immunity relates only to property of the Tribunal is incorrect. The only possible conclusion that can be drawn from the list in Article II of the Immunity Convention and in Article VIII of the Headquarters Agreement is that immunity may be claimed by the Tribunal not only for itself but also for ‘its funds, assets and other property’ in respect of legal proceedings of any kind whatever. This prevents the court from granting the application for judgment to be given against the Tribunal by default.’ (judgment of 26 February 2002, 49 NILR (2002) p. 389; UN No. AD9602. Finally, the European Court of Human Rights held that the Milošević's complaint against the State of the Netherlands was not admissible, under Article 35 of the European Convention, since he had not exhausted all domestic remedies. The appeal which he had instituted before the Court of Appeal of The Hague against the judgment of the District Court of 31 March 2001 had been withdrawn by him on 17 January 2992 (application No. 77631/01).
90. OJ 1993 No. L102, p. 14. The District Court of Amsterdam (see n. 92 below) refers in this connection in particular to Resolution No. 820 of the UN Security Council.
91. The chief administrative officer of the city.
92. After the arrest and confiscation, Calamar arrested the ship in Brindisi on 17 July 1993 and claimed damages of US$ 420,000 from Gesco. It was to settle this dispute that the agreement of 14 January 1994 was concluded between Calamar and Gesco (cf., finding 1 (f) and (g) of the judgment of the District Court of Amsterdam, see n. 93 below).
93. Calamar appealed against this judgment to the Court of Appeal of The Hague. This appeal was still pending at the time of preparation of this overview (1 August 2002). By judgment of the Court of Appeal of Amsterdam of 19 February 1998, this appeal has been joined with an action brought by Calamar against Gesco in relation to the arrest of three of Gesco's ships in Amsterdam for breach by Gesco of the same agreement of 14 January 1994 (NIPR (2000) No. 202). The President of the District Court of Amsterdam also took the view, in the light of the previous Greek judgments, that Calamar did not have lawful control of the cargo on 14 January 1994 (judgment of 23 January 1997, NIPR (2000) No. 202). It appears that the final judgment in the proceedings on the merits in Greece is now being awaited.