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Published online by Cambridge University Press: 07 July 2009
1. Cf., 3 NYIL (1972) p. 203. Art. 117 reads in full: “Deliberate insult of a reigning sovereign or other Head of a friendly state is punishable by imprisonment for a period not exceeding four years or by a fine not exceeding six hundred guilders”.
2. Reference is here made to Smidt, H.J., Geschiedenis van het Wetboek van Strafrecht [A History of the Penal Code], vol. II, 2nd ed. (Haarlem 1891) pp. 47–49.Google Scholar
3. Reference is here made to Noyon, T.J. - Langemeijer, G.E., Het Wetboek van Strafrecht [The Penal Code], vol. I, 6th ed. (Arnhem 1954) p. 575.Google Scholar
4. Arts. 115–120 concern “Offences against Heads and representatives of friendly states”.
5. Memorandum of 8 April 1971, Bijl. Hand. II 1970/71 – 11249 No. 3 pp. 7–8.
6. Reference is here made to François, J.P.A., Grondlijnen van het volkenrecht [An Outline of International Law], 3rd ed. (Zwolle 1967) p. 9 et seq.Google Scholar
7. Memorandum of 9 February 1976, Bijl. Hand. II 1975/76 – 11249 No. 6 pp. 20–21.
8. Memorandum of 30 May 1978, Bijl. Hand. II 1977/78 – 15049 (R 1100) No. 3 p. 9.
9. Reference is here made to Naar een nieu we Grondwet? [Towards a new Constitution?], vol. 3, no. 47 ('s-Gravenhage 1969) pp. 69–71.Google Scholar
10. Cf., Eindrapport van de Staatscommissie van advies inzake de Grondwet en de Kieswet [Final Report of the State Commission on the Constitution and Electoral Law] ('s-Gravenhage 1971) pp. 185–186.Google Scholar
11. Act of 18 April 1827, Stb. 1827 No. 20.
12. Reference is here made to Bijl. Hand. II 1962/63 – 2079 No. 11 pp. 2, 3 (left-hand columns) and No. 12; Hand. II 1962/63 p. 2489.
13. Reference is here made to a decision of the Supreme Court of 6 March 1959 (“tweede Nyugat-arrest”, N.J. (1962) No. 2) (See also, Court of Appeal of The Hague 30 December 1971, 5 NYIL (1974) pp. 297–299). The Government does not share the opinion … that this was a false decision. That opinion is founded on the consideration that in the 1953 and 1956 Constitutions the legislature did not intend to pronounce upon unwritten international law in the present Article 66.
14. Reference is here made to Maunz, Th., Deutsches Staatsrecht, 18th ed. (München 1971) p. 331Google Scholar, who argues that the significance of Article 25 is more of a “programme” than of a practical nature.
15. Memorandum of 30 May 1978, Bijl. Hand. II 1977/78 – 15049 (R 1100) No. 3 pp. 12–14.
16. Idem pp. 11–12.
17. Cf., 8 NYIL (1977) p. 174.
18. Bijl. Hand. II 1977/78 – 14800 V No. 2 p. 41.
19. Note of 26 January 1978, Bijl. Hand. II 1977/78 – 14915 No. 2.
20. Reply of 19 May 1978, Bijl. Hand. II 1977/78 – 14915 No. 7 pp. 9–10.
21. Cf., 6 NYIL (1975) pp. 272–273.
22. The Round Table Conference between the Netherlands and Indonesia was held at The Hague, from 23 August to 2 November 1949.
23. Agreement between the Kingdom of the Netherlands and the Republic of the United States of Indonesia, of 27 December 1949, Stb. 1949 No. J 600 p. 45; 69 UNTS p. 266 et seq.; Art. 2 para. 1 of the Agreement reads: “The division of the Republic of the United States of Indonesia into component states shall be established finally by the Constituent Assembly in conformity with the provisions of the Provisional Constitution of the Republic of the United States of Indonesia with the understanding that a plebiscite will be held among the population of territories thereto indicated by the Government of the Republic of the United States of Indonesia upon the recommendation of the United Nations Commission for Indonesia or of an other organ of the United Nations, under supervision of the United Nations Commission for Indonesia or the other United Nations organ referred to, on the question whether they shall form a separate component state.”
24. The United Nations Commission for Indonesia was established by SC Res. 1234 of 28 January 1949.
25. Act of 21 December 1949, Stb. 1949 No. 570.
26. Bijl. Hand. II 1977/78 – 14915 No. 2 pp. 31–32.
27. Report of the International Law Commission on the Work of its Twenty-ninth Session, 9 May – 29 July 1977, GAOR, 32nd Session, Suppl. No. 10 (A/32/10), p. 137 et seq.; also in ILC Yearbook 1977 vol. II Part Two, p. 59 et seq.
28. Art. 19 reads in full: “A succession of states entails the extinction of the obligations of the predecessor state and the arising of the obligations of the successor state in respect of such state debts as pass to the successor state in accordance with the provisions of the articles in the present Part.”
29. Art. 20 para. 1 reads in full: “The succession of states does not as such affect the rights and obligations of creditors.”
30. Art. 20 para. 2 reads: “An agreement between predecessor and successor states or, as the case may be, between successor states concerning the passing of the state debts of the predecessor state cannot be invoked by the predecessor or the successor state or states, as the case may be, against a third state or international organization which is a creditor [or against a third state which represents a creditor] unless: (a) the agreement has been accepted by that third state or international organization; or (b) the consequences of that agreement are in accordance with the other applicable rules of the articles in the present Part.”
31. Art. 21 para. 2 reads: “In the absence of an agreement, an equitable proportion of the state debt of the predecessor state shall pass to the successor state, taking into account, inter alia, the property, rights and interests which pass to the successor state in relation to that state debt.” Art. 22 reads in full: “When the successor state is a newly independent state:
1. No state debt of the predecessor state shall pass to the newly independent state, unless an agreement between the newly independent state and the predecessor state provides otherwise in view of the link between the state debt of the predecessor state connected with its activity in the territory to which the succession of states relates and the property, rights and interests which pass to the newly independent state.
2. The provisions of the agreement referred to in the preceding paragraph should not' infringe the principle of the permanent sovereignty of every people over its wealth and natural resources, nor should their implementation endanger fundamental economic equilibria of the newly independent state.”
32. Art. 1 reads: “The present articles apply to the effects of succession of states in respect of matters other than treaties.”
33. Statements of 3 November 1977, Verslag over de Tweeëndertigste Zitting van de Al-gemene Vergadering der Verenigde Naties [Report on the thirty-second session of the UN General Assembly], Ministry of Foreign Affairs publication. No. 120, 1977 (hereafter cited as Tweeëndertigste Zitting) pp. 371–375; summary in Doc. A/C.6/32/SR.37, pp. 3–5.
34. “11. Supports the armed struggle of the Namibian people, led by the South West Africa People's Organization, to achieve self-determination, freedom and national independence in a united Namibia”.
35. “13. Appeals to all Member States to grant all necessary support and assistance to the South West Africa People's Organization in its struggle to achieve self-determination, freedom and national independence in a united Namibia”; cf., 7 NYIL (1976) p. 239, 8 NYIL (1977) p. 161.
36. “10. Reiterates that the national liberation movement of Namibia, the South West Africa People's Organization, is the sole and authentic representative of the Namibian people.”
37. “7. Declares that Walvis Bay is an integral part of Namibia with which it is inextricably linked by geographical, historical, economic, cultural and ethnic bonds; 8. Categorically condems South Africa for the decision to annex Walvis Bay, thereby attempting to undermine the territorial integrity and unity of Namibia.”
38. Statement of 4 November 1977, Tweeëndertigste Zitting, p. 89; also Doc. A/32/PV.57, p. 52.
39. GA Res. 3458 (XXX) A and B, of 10 December 1975.
40. Statement of 13 January 1978, Aanh. Hand. II 1977/78 No. 544 p. 1105; cf., 9 NYIL (1978) p. 203.
41. Bulletin of the European Communities 1977 No. 6 p. 62 para. 2.2.3, para. 3; also in Jaarboek van het Departement van Buitenlandse Zaken [Yearbook of the Ministry of Foreign Affairs] (hereafter cited as Jaarboek BZ) 1976–1977 Annex 19 p. 112B; Aanh. Hand. II 1977/78 No. 715 p. 1441.
42. Débats du Parlement européen, Session 1977–1978, Séances du 14 au 18 novembre 1977, p. 50; in the English version the paragraph has been omitted (p. 43).
43. The passage reads: “The Nine have affirmed their belief that a solution to the conflict in the Middle East will be possible only if the legitimate right of the Palestinian people to give effective expression to its national identity is translated into fact which would take into account the need for a homeland for the Palestinian people.”
44. The phrase reads in Dutch: “een eigen land voor het Palestijnse volk”, Bijl. Hand. II 1977 – 14100 V No. 44 p. 2, para. A.3.
45. Reply of 11 January 1978, Aanh. Hand. II 1977/1978 No. 533 p. 1085.
46. Art 27 reads in full: “In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
47. Bijl. Hand. II 1977/78 – 14915 No. 2 pp. 33–34.
48. Reply of 24 May 1978, Aanh. Hand II 1977/78 No. 1114 p. 2225.
49. The Offices were established in pursuance of the Benelux Convention on trade marks, of 19 March 1962, Trb. 1962 No. 58; 704 UNTS p. 302 et seq., and the Benelux Convention on designs and models, of 25 October 1966, Trb. 1966 No. 292.
50. Memorandum of Reply of 28 November 1977, Bijl. Hand. II 1977/78 – 14508 No. 3 p. 23.
51. Convention for the establishment of a European Space Agency, of 30 May 1975, Trb. 1975 No. 123; Art. II opens with the words: “The purpose of the Agency shall be to provide for and to promote for exclusively peaceful purposes, co-operation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems …”
52. Treaty of 27 January 1967, Trb. 1967 No. 31; 610 UNTS p. 206 et seq.; Art. IV, 2nd paragraph, 1st sentence reads: “The moon and other celestial bodies shall be used by all states parties to the Treaty exclusively for peaceful purposes.” Cf., Explanatory Memorandum to the Bill concerning the approval of the 1967 Outer Space Treaty, Bijl. Hand. II 1967/68 – 9464 (R 628) pp. 3–4.
53. Letter of 4 January 1978, Bijl. Hand. II 1977/78 – 13846 No. 8 p. 2.
54. Treaty of 20 September 1976, Trb. 1976 No. 175; (EC) OJ No. L 278, 8 October 1976.
55. Memorandum of 22 August 1978, Bijl. Hand. II 1977/78 – 15044 No. 6 pp. 8, 7. .
56. Denmark, Federal Republic of Germany, France, Italy, Netherlands and United Kingdom (as far as British civil servants are concerned).
57. See n. 55 supra at pp. 4–5.
58. The Accords reached at the Extraordinary Council Session of 28 and 29 January 1966, state, under the heading “Majority voting procedure”:
“1. Where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the Members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the Members of the Council while respecting their mutual interests and those of the Community, in accordance with Article 2 of the Treaty.
2. With regards to the preceding paragraph, the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached.
3. The six delegations note that there is a divergence of views on what should be done in the event of a failure to reach complete agreement.
4. The six delegations nevertheless consider that this divergence does not prevent the Community's work being resumed in accordance with the normal procedure.” See also, V ILM (1966) p. 317.
59. Idem, 1973 No. 12 p. 10 para. V, 2nd column, 1st paragraph.
60. Idem, 1974, No. 12 p. 8.
61. Every half year informal, so-called Gymnich, weekends are held by the EC Ministers for Foreign Affairs in the country holding the chair (Gymnich is a small castle near Bonn were the first such meeting took place on 20–21 April 1974). Those in Italy (Lucca), Ireland (Farnleigh, north of Dublin), United Kingdom (Leeds Castle) and Denmark (Hesselet) were held on 18–19 October 1975, 12–13 April 1976, 21–22 May 1977 and 20–21 May 1978 respectively.
62. Note of 21 August 1978, Bijl. Hand. II 1977/78 – 15095 No. 5 pp. 2–4.
63. Report of 6 July 1978, Bijl. Hand. II 1977/78 – 15095 No. 1.
64. Statement of 1 September 1978, Hand. II OCV p. 915.
65. Israel (Trb. 1977 Nos. 138, 139), the so-called Maghreb-countries: Algeria (Trb. 1976 Nos. 164, 165), Morocco (Trb. 1976 Nos. 166, 167), Tunisia (Trb. 1976 Nos. 162, 163), the so-called Mashrak-countries: Egypt (Trb. 1977 Nos. 130, 131), Jordan (Trb. 1977 Nos. 132, 133), Lebanon (Trb. 1977 Nos. 136, 137), Syria (Trb. 1977 Nos. 134, 135), and Malta (Trb. 1976 No. 66).
66. Memorandum of 6 July 1978, Bijl. Hand. II 1977/78 – 14839 No. 5 p. 10.
67. Cf., 8 NYIL (1977) p. 163, 9 NYIL (1978) p. 201.
68. Replies of 5 July 1974, 11 March 1975, 25 May 1976, 13 January 1977, 27 February 1978, 26 June 1979; Aanh. Hand. II 1973/74 No. 1779 pp. 3561–3562a, 1974/75 No. 821 pp. 648–650, 1975/76 No. 1155 pp. 2299–2301, 1976/77 No. 545 pp. 1089–1091, 1977/78 No. 741 pp. 1491–1494, No. 1452 pp. 2877–2880.
69. Different figures are to be found in the Memorandum of Reply concerning the 1978 draft budget for Foreign Affairs, Bijl. Hand. II 1977/78 – 14800 V No. 21 p. 7: 1976 (3): 19, 1977 (1)(2)(3): 67, 46, 13 respectively.
70. Doc. E/C.2/771/Add.2, of 17 March 1978 pp. 3–5.
71. Cf., 5 NYIL (1974) pp. 209–210, 6 NYIL (1975) p. 263, 7 NYIL (1976) pp. 239–240.
72. Memorandum of 5 May 1978, Bijl. Hand. I 1977/78 – 14800 V No. 47c p. 7.
73. Cf., 6 NYIL (1975) p. 269, 7 NYIL (1976) pp. 248–249.
74. Statement of 13 June 1978, Hand. II 1977/78 p. 2785.
75. Bijl. Hand. II 1977/78 – 14800 V No. 2 p. 20.
76. Treaty of 6 May 1963, Trb. 1964 No. 4; 634 UNTS p. 222 et seq.; ETS Vol. II No. 43 p. 89 et seq.
77. Stb. 1892 No. 258; Art. 7 reads: “Netherlands nationality is lost: 5. with respect to Netherlands subjects born outside the Realm and outside the Republic of Indonesia, by residence for ten consecutive years outside the territory of the Realm and outside the Republic of Indonesia, except in the service of the state, unless the person so residing, before the expiration of that term, gives notice to the authority referred to in Article 12(a), that he desires to remain a Netherlands national. A fresh term of ten years begins to run from the day on which the notice is received. With regard to minors, the term of ten years begins to run from the day of their coming of age under Netherlands law.”
78. Memorandum of 24 February 1978, Bijl. Hand. II 1977/78 – 14800 VI No. 15 p. 12 para. 42.
79. Act concerning the status of Moluccans, Stb. 1976 No. 468; 8 NYIL (1977) pp. 328–330.
80. Frontier Correction Act of 26 September 1951, Stb. 1951 No. 434; the post-war frontiers with Germany were definitely settled by the Frontier Treaty of 8 April 1960, Trb. 1960 No. 68; 508 UNTS p. 16 et seq.
81. Act of 14 September 1962, Stb. 1962 No. 358.
82. Statement of 16 February 1974, Bijl. Hand. II 1973/74 – 12839 No. 3 p. 3.
83. Cf., Jaarboek BZ 1977–1978, Annex 55, pp. 243B-252B.
84. Art. 52 of the Passport Regulations of 26 May 1952 (Paspoortinstructie Nederland 1952) Stc. 1952 No. 132 reads: “Aliens' passports may be issued to persons who are stateless or whose nationality is unknown and, with due observance of the regulations in force, are permanently resident in the Netherlands.”
85. Jaarboek BZ 1977–1978 pp. 203–204; cf., also supra n. 19, at p. 50 n. 25.
86. Bijl. Hand. II 1976/77 – 14100 VI No. 2 p. 50; see for the full text of the seven criteria. 9 NYIL (1978) pp. 214–215; cf., also, 1 NYIL (1970) pp. 137–138, 5 NYIL (1974) p. 216.
87. Reply of 7 September 1978, Aanh. Hand. II 1977/78 No. 1759 pp. 3486–3487.
88. Statement of 2 February 1978, Bijl. Hand. II 1977/78 – 14800 VI No. 23 p. 6.
89. Doc. A/32/20, of 9 August 1977, Annex VII.
90. These principles read as follows: “Consultation and agreements between states 1. [A direct television broadcoasting service by means of artificial earth satellites specifically directed at a foreign state, which shall be established only when it is not inconsistent with the provisions of the relevant instruments of the International Telecommunication Union, shall be based on appropriate agreements and/or arrangements between the broadcasting and receiving states or the broadcasting entities duly authorized by the respective states, in order to facilitate the freer and wider dissemination of information of all kinds and to encourage co-operation in the field of information and the exchange of information with other countries.]
2. [For that purpose a state which proposes to establish or authorize the establishment of a direct television broadcasting service by means of artificial earth satellites specifically directed at a foreign state shall without delay notify that state of such intention and shall enter into consultations with that state if the latter so requests.]
3. [(a) No such agreements and/or arrangements shall be required with respect to the overspill of the radiation of the satellite signal within the limits established under the relevant instruments of the International Telecommunication Union.]
[(b) No such agreements and/or arrangements or consultations shall be required with respect to the over-spill of the radiation of the satellite signal within the limits established under the relevant instruments of the International Telecommunication Union.]
[(c) No such agreements and/or arrangements shall be required in those cases in which the coverage of the territory of a state by direct television broadcast intended by another state for its own population is due to the over-spill of the signal beyond the planned service area if such an over-spill is permitted under relevant instruments of the International Telecommunication Union.]
[(d) No such agreements and/or arrangements shall be required with respect to services not specifically directed at a foreign state which result in an over-spill of the radiation of the satellite signal within the limits established under the relevant instruments of the International Telecommunication Union.]
[(e) Delete para. 3.]
[(f) This principle shall not apply with respect to the over-spill of the radiation of the satellite signal within the limits established under the relevant instruments of the International-Telecommunication Union.]
Programme content
[States of their broadcasting entities which participate in direct television broadcasting by satellite with other states should co-operate with one another in respect of programming, programme content, production and interchange of programmes.] [The broadcasting of commercial advertising, direct or indirect to countries other than the country of origin, should be on the basis of appropriate agreements between the countries concerned.]
[Notwithstanding the foregoing, states undertaking activities in direct television broadcasting by satellites should in ail cases exclude from the television programmes any material which is detrimental to the maintenance of international peace and security, which publicizes ideas of war, militarism, national and racial hatred and enmity between peoples, which is aimed at interfering in the domestic affairs of other states or which undermines the foundations of the local civilization, culture, way of life, traditions or language.]
Unlawfill/inadmissible broadcasts
[States shall regard as unlawful and as giving rise to the international liability of states direct television broadcasts specifically aimed at a foreign state but carried out without the express consent of the latter, containing material which according to these principles should be excluded from programmes, or received as a result of unintentional radiation if the broadcasting state has refused to hold appropriate consultations with the state in which the broadcasts are received.] [in case of the transmission to any state of television broadcasts which are unlawful, that state may take in respect of such broadcasts measures which are recognized as legal under international law.] [States agree to give every assistance in stopping unlawful direct television broadcasting by satellite.] [Any broadcasts that a state does not wish to be made in its territory or among its population and in respect of which it has made known such decision to the broadcasting state are inadmissible.] [Every transmitter, state, international organization or authorized agency shall refrain from making such broadcasts or shall immediately discontinue such broadcasts if it has begun to transmit them.]
91. Statement of 23 November 1977, Tweeëndertigste Zitting, p. 132; also in Doc. A/C.1/ 32/PV.43, pp. 7–8; cf., 8 NYIL (1977) pp. 172–173.
92. Cf., 6 NYIL (1975) p. 278.
93. Doc. A/C.3/32/L.25/Rev. 1.
94. Statement of 22 November 1977, Tweeëndertigste Zitting, p. 293; summary in Doc. A/C.3/32/SR.54, p. 6.
95. Cf., 8 NYIL (1977) pp. 174–175.
96. The Decade was launched by GA Res. 2919 (XXVII) of 15 November 1972.
97. Letter of 9 May 1978, Bijl. Hand. II 1977/78 – 14800 V No. 33 pp. 1–2.
98. For the text of Lome I, of 28 February 1975, see Trb. 1975 No. 110; (EC) OJ No. L 25/2, 30 January 1976. The preamble reads, inter alia: “Wishing to demonstrate their common desire to maintain and develop the frinedly relations existing between their countries, according to the principles of the United Nations Charter”.
99. Reply of 25 July 1978, Aanh. Hand. II 1977/78 No. 1567 p. 3107.
100. Memorandum of 5 May 1978, Bijl. Hand. I 1977/78 – 14800 V No. 47c p. 4.
101. Report of 28 August 1978, Hand. II OCV 1977/78 pp. 813–814.
102. Art. 6 para. 4 reads: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties recognize: the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
103. By note of Amendment of 13 January 1967 it had been proposed to make a general reservation to para. 4 of Art. 6, Bijl. Hand. II 1966/67 – 8606 (R 533) No. 7. By a Second Note of Amendment of 26 April 1971 this reservation was restricted to civil servants, Bijl. Hand. II 1970/71 – 8606 (R 533) No. 11.
104. Memorandum of 5 September 1978, Bijl. Hand. I – 8606 (R 533) No. 71b pp. 2–3.
105. Art. 6 paras. 1–3 read: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: to promote joint consultation between workers and employers; to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements; to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes”.
106. Note of 20 May 1977, Bijl. Hand. II 1976/77 – 8606 (R 533) No. 14. This reservation, for civil servants only, was introduced in the Second Note of Amendment of 26 April 1971, Bijl. Hand. II 1970/71 – 8606 (R 533) No. 11.
107. Note of 10 August 1978, Bijl. Hand. II 1977/78 – 13932 (R 1037) No. 11 pp. 1–2.
108. Art. 9 reads: “With a view to ensuring the effective exercise of the right to vocational guidance, the Contracting Parties undertake to provide or promote, as necessary, a service which will assist all persons, including the handicapped, to solve problems related to occupational choice and progress with due regard to the individual's characteristics and their relation to occupational opportunity: this assitance should be available free of charge, both to young persons, including school children, and to adults.”
109. See Art. 2 of the original text of the Bill of Approval, Bijl. Hand. II 1965/66 – 8606 (R 533) No. 2 p. 1.
110. The amendment was proposed in Parliament on 4 April 1978, Bijl. Hand. II 1977/78 – 8606 (R 533) No. 16.
111. Memorandum of 5 September 1978, Bijl. Hand. II 1977/78 No. 71b pp. 4–5.
112. Art. 18 paras. 1–3 read: “With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Contracting Party, the Contracting Party, the Contracting Parties undertake: to apply existing regulations in a spirit of liberality; to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers; to liberalize, individually or collectively, regulations governing the employment of foreign workers”.
113. In pursuance of Art. 21 of the European Social Charter.
114. The Bill was submitted on 3 November 1975, Bijl. Hand. II 1975/76 – 13682 No. 2.
115. See Note of 17 August 1976, Bijl. Hand. II 1975/76 – 13682 No. 10 p. 4.
116. Third Note of Amendment, of 20 May 1977, Bijl. Hand. II 1976/77 – 8606 (R 533) No. 14.
117. Note of 20 May 1977, Bijl. Hand. II 1976/77 – 8606 (R 533) No. 13 p. 5.
118. The Bill was submitted on 31 May 1966, Bijl. Hand. II 1965/66 – 8606 (R 533) Nos. 1–2.
119. Act of 20 February 1964, Stb. 1964 No. 72.
120. In pursuance of Art. 29 of the European Social Charter.
121. The amendment was proposed in Parliament on 4 April 1978, Bijl. Hand. II 1977/78 – 8606 (R 533) No. 17.
122. Memorandum of 5 September 1978, Bijl. Hand. I 1977/78 No. 71b pp. 5–6.
123. Art. 19 para. 8 reads: “With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Contracting Party, the Contracting Parties undertake: to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality”.
124. Art. 12 of the Aliens Act, of 13 January 1965, Stb. 1965 No. 40, reads in full: “The residence permit of an alien may be withdrawn:
(a) if he has provided incorrect data which have led to the granting, or renewal of the validity, of the permit;
(b) if he no longer has at his disposal sufficient means of subsistence;
(c) if he has infringed public order or is a danger to national security;
(d) in pursuance of a restriction under which the permit was granted, or because of a breach of a condition attached to it”. In Art. 24 of the Foreign Workers Employment Bill the following addition is proposed: “(e). if he is employed, without the provisions of the Foreign Workers Employment Act having been met.”
125. Treaty of 24 November 1977, ETS No. 93.
126. Treaty of 13 December 1955, Trb. 1957 No. 20; 529 UNTS p. 142 et seq.; ETS Vol. I No. 19 p. 116 et seq.
127. Treaty of 27 March 1956, Trb. 1966 No. 40; 285 UNTS p. 232 et seq.; see Bijl. Hand. 1955/56, 1956/57 – 4338 (R 38), Hand. II 1956/57 pp. 857–875, 879–892, Hand. I 1956/57 pp. 527–537.
128. Art 3 para. 1 reads in full: “Nationals of any Contracting Party lawfully residing in the territory of another Party may be expelled only if the endanger national security or offend against ordre public or morality.”
129. Art. 9 para. 5 reads: “The residence permit … may be withdrawn:
(a) for reasons of national security, public policy or morals;
(b) if the holder refuses, after having been duly informed of the consequences of such refusal, to comply with the measures prescribed for him by an official medical authority with a view to the protection of public health;
(c) if a condition essential to its issue or validity is not fulfilled.
Each Contracting Party nevertheless undertakes to grant to migrant workers whose residence permits have been withdrawn, an effective right to appeal, in accordance with the procedure for which provision is made in its legislation, to a judicial or administrative authority”.
130. Statement of 24 May 1978, Hand. II 1977/78 pp. 2541–2543.
131. Treaty of 18 April 1961, Trb. 1962 No. 101; 500 UNTS p. 96 et seq.
132. Treaty of 24 April 1963, Trb. 1965 No. 40; 596 UNTS p. 262 et seq.
133. Annex to GA Res. 2530 (XXIV) of 8 December 1969; IX ILM (1970) p. 127 et seq.
134. Cf., Arts. 28, 58, Treaty of 14 March 1975, 69 AJIL (1975) p. 730 et seq.
135. Treaty of 14 December 1973, XIII ILM (1974) p. 41 et seq. Art. 1 para. 1 reads in full: “‘internationally protected person’ means:
(a) a Head of state, including any member of a collegial body performing the functions of a Head of state under the Constitution of the state concerned, a Head of government or a Minister for Foreign Affairs, whenever any such person is in a foreign state, as well as members of his family who accompany him;
(b) any representative or official of a state or any offical or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accomodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household”.
136. Reference is here made to Smidt, H.J., Geschiedenis van het Wetboek van Strafrecht [A history of the Penal Code], vol. II, 2nd ed. (Haarlem 1891) p. 48.Google Scholar
137. Memorandum of 9 February 1976, Bijl. Hand. II 1975/76 – 11249 Nos. 6–8 pp. 8–9.
138. Idem, p. 14.
139. See n. 54 supra.
140. Sec for the text of the Bill Bijl. Hand. II 1976/77 – 13885 No. 2; see for its discussion in the Second Chamber Hand. II 1976/77 pp. 2306–2312, 2352–2356.
141. Memorandum of 26 May 1978, Bijl. Hand. II 1977/78 – 15044 No. 3 p. 19.
142. Memorandum of 22 August 1978, Bijl. Hand. II 1977/78 – 15044 No. 6 pp. 14–15.
143. Jaarboek BZ 1977–1978, Annexes 52–59 pp. 213B-265B.
144. This phrase is to be found in Art. 60 para. 1 of the Constitution.
145. Art. 60 of the 1938 Constitution.
146. Memorandum of 30 May 1978, Bijl. Hand. II 1977/78 – 15049 (R 1100) No. 3 pp. 6–7.
147. Trb. 1970 No. 41; IX ILM (1970) p. 658 et seq.
148. See Art. 11(5)(d)(iii) of the Agreement of Almelo.
149. Art. XII A 5 reads in full:
“A. With respect to any Agency project, or other arrangement where the Agency is requested by the parties concerned to apply safegueards, the Agency shall have the following rights and responsibilities to the extent relevant to the project or arrangement:
5. To approve the means to be used for the chemical processing of irradiated materials solely to ensure that this chemical processing will not lend itself to diversion of materials for military purposes and will comply with applicable health and safety satandards; to require that special fissionable materials recovered or produced as a by-product be used for peaceful purposes under continuing Agency safeguards for research or in reactors, existing or under construction, specified by the member of members concerned; and to require deposit with the Agency of any excess of any special fissionable materials recovered or produced as a byproduct over what is needed for the above-stated uses in order to prevent stockpiling of these materials, provided that thereafter at the request of the member of members concerned special fissionable materials so deposited with the Agency shall be returned promptly to the member or members concerned for use under the same provisions as stated above”.
150. Treaty of 26 February 1976, XV ILM (1976) p. 489 et seq.; IAEA Doc. INFCIRC/ 237 of 26 May 1976.
151. Annex to Letter of the Ministers of Economic Affairs and for Foreign Affairs to the Second Chamber, of 16 January 1978, Bijl. Hand. II 1977/78 – 14261 No. 7 p. 4. The Exchange of Notes was to take place in Brasilia on 1 September 1978; see for the text Trb. 1978 No. 167, also in Bijl. Hand. II 1977/78 – 14261 No. 37 pp. 2–3.
152. Motion of 31 January 1978, Bijl. Hand. II 1977/78 – 14261 No. 19.
153. Annex to the Government's Letter of 20 June 1978 to the Second Chamber, Bijl. Hand. II 1977/78 – 14261 No. 27 p. 4, also in Stc. of 20 June 1978 No. 117 p. 6. The statement was made by Her Majesty's Ambassador in Brazil; see Trb. 1978 No. 167 p. 6.
154. The contract was fiated by the Minister for Foreign Affairs on 14 July 1976 and signed by the parties on 20 September 1976.
155. François, J.P.A., Handboek van het volkenrecht [Manual of International Law], vol. I, 2nd ed. (Zwolle 1949) pp. 691, 692–693.Google Scholar
156. See for the text of the letter of intent of 5 July 1978 sent by the Minister of Economic Affairs to Urenco Nederland (Almelo) concerning the export of enriched uranium to the Federal Republic of Germany destined for Brazil, Annex to Letter of the Minister of Economic Affairs to the Second Chamber, 31 July 1978, Bijl. Hand. II 1977/78 – 14261 No. 36 p. 2, also in Stc. of 2 August 1978 No. 148 p. 1.
157. Statement of 29 June 1978, Hand. II 1977/78 pp. 3179–3180.
158. Idem, pp. 3182, 3183.
159. Report of the International Law Commission on the Work of its Twenty-ninth Session, 9 May – 29 July 1977, GAOR, 32nd Session, Suppl. No. 10 (A/32/10), especially p. 256 et seq.; also in ILC Yearbook 1977 vol. II Part Two, especially p. 105 et seq.
160. Art 19 reads: “An international organization may, when signing, formally confirming, accepting, approving or acceding to a treaty between several international organizations, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not falling under subparas. (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”
Art. 19 ter para. 1 reads: “In the case of a treaty between several international organizations, an international organization may object to a reservation.”
161. Art. 19 bis para. 2 reads: “When the participation of an international organization is essentail to the object and purpose of a treaty between states and one or more international organizations or between international organizations and one or more states, that organization, when signing, formally confirming, accepting, approving or acceding to that treaty, may formulate a reservation if the reservation is expressly authorized by the treaty or if it is otherwise agreed that the reservation is authorized.” Art. 19 ter para. 3 reads: “In the case of a treaty between states and one or more international organizations or between international organizations and one or more states, an international organization may object to a reservation formulated by a state or by another organization if:
(a) the possibility of objecting is expressly granted to it by the treaty or is a necessary consequence of tasks assigned to the international organization by the treaty; or
(b) its participation in the treaty is not essential to the object and purpose of the treaty.”
162. Art. 20 para. 2 reads: “When it appears from the object and purpose of a treaty between several international organizations that the application of the treaty in its entirety between all the patties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.” Art. 20 bis para. 2 reads: “When it appears from the object and purpose of a treaty between states and one or more international organizations or between international organizations and one or more states that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation formulated by a state or by an international organization requires acceptance by all the parties.”
163. Art. 27 reads:
“1. A state party to a treaty between one or more states and one or more international organizations may not invoke the provisions of its internal law as justification for its failure to perform the treaty.
2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty, unless performance of the treaty, according to the intention of the parties, is subject to the exercise of the functions and powers of the organization.
3. The preceidng paragraphs are without prejudice to [Art. 46].”
Art. 29 reads: “Unless a different intention appears from the treaty or is otherwise established, a treaty between one or more states and one or more international organizations is binding upon each state party in respect of its entire territory.”
Art. 34 reads: “1. A treaty between international organizations does not create either obligations or rights for a third state or a third organization without the consent of that state or that organization.”
164. Art. 46 reads in full:
“1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
[Alternative A:]
2. An international organization may not invoke the fact that its consent has been expressed in violation of a provision of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of the organization of fundamental importance.
3. A violation is manifest if it would be objectively evident to any state and any organization conducting itself in the matter in accordance with normal practice and in good faith.
[Alternative B:]
2. In the case referred to in the preceding paragraph a violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.
3. An international organization may not invoke the fact that its consent has been expressed in violation of a provision of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of the organization of fundamental importance.
165. See especially, Art. 36 bis, reading:
“1. A treaty concluded by an international organization gives rise directly for states members of an international organization to rights and obligations in respect of other parties to that treaty if the constituent instrument of that organization expressly gives such effect to the treaty.
2. When, on account of the subject-matter of a treaty concluded by an international organization and the assignment of the areas of competence involved in that subject-matter between the organization and its member states, it appears that such was indeed the intention of the parties to that treaty, the treaty gives rise for a member state to:
(i) rights which the Member State is presumed to accept, in the absence of any indication of intention to the contrary;
(ii) obligations when the Member State accepts them, even implicitly.” (Doc. A/CN.4/298 of 11 March 1977 p. 22)
166. Statement of 3 November 1977, Tweeëndertigste Zitting pp. 375–377; summary in Doc.A/C.6/32/SR.37 pp. 5–7.
167. Act of 28 June 1956, Stb. 1956 No. 401. Art. 39 para. 1 reads: “Except in so far as Our Ministers [i.e., the Minister of Economic Affairs and any other Ministers whom the question concerns] have granted exemption, or, by special request, dispensation, it is forbidden to deliberately carry out measures or decisions of a foreign state, which bear upon competition agreements, economic dominant positions or competition-restrictive practices.”
168. Reply of 4 October 1977, Aanh. Hand. II 1977/78 No. 61 pp. 127–128.
169. The Bill is designed to replace the 1945 Foreign Exchange Decree of 10 October 1945, Stb. 1945 No. F 222, and the International Transfer of Payments Act of 14 November 1934, Stb. 1934 No. 583. The original draft was submitted on 4 July 1972, Bijl. Hand. II 1971/72 – 11907 No. 2 p. 1 et seq. Art. 20 was inserted by Note of Amendment of 26 January 1977, Bijl. Hand. II 1976/77 – 11907 No. 7 p. 5. The Article is almost identical to Art. 31 of the 1945 Foreign Exchange Decree.
170. Hazewinkel-Suringa, D., Inleiding tot de studie van het Nederlandse strafrecht [introduction to the Study of Netherlands Criminal Law], 7th ed. (Groningen 1975) p. 466.Google Scholar
171. Statement of 24 May 1978, Hand. II 1977/78 p. 2538.
172. Act of 25 July 1871, Stb. 1871 No. 91.
173. Reference is here made to François, J.P.A., Handboek van het volkenrecht [Manual of International Law], vol. I, 2nd ed. (Zwolle 1949) pp. 562–581, 758 and 786Google Scholar, where details are to be found about this kind of treaty.
174. Memorandum of 30 November 1976, Bijl. Hand. II 1976/77 – 14272 (R 1055) Nr. 3 p. 7.
175. Trb. 1978 No. 61.
176. For the Government's view at a later stage reference is here made to Jaarboek BZ 1967–1968 pp. 182–185.
177. Declarations of 30 October 1958 with reference to Art. 12 (para. 1) of the Convention on the Territorial Sea and the Contiguous Zone, of 29 April 1958, and to Art. 6 (para. 1) of the Convention on the Continental Shelf, of 29 April 1958, that there are special circumstances to be taken into consideration, inter alia, in the area between the coast of Venezuela and the island of Aruba, Trb. 1959 No. 123 p. 30; 516 UNTS (1964) p. 275, n. 1, and 299 UNTS (1964) p. 353, n. 1, respectively.
178. Express reservations of 15 August 1961, in respect of Aits. 12 and 24, paras. 2–3 of the Territorial Sea Convention, and of Art. 6 of the Continental Shelf Convention, Trb. 1966 No. 123 pp. 2, 3 (n. 4); 516 UNTS (1964) p. 278, and Trb. 1966 No. 126 p. 2, n. 2; 499 UNTS p. 312, n. 1.
179. Declarations of 18 February 1966, Trb. 1966 No. 123 pp. 2, 4 (n. 8), No. 126 p. 2, n. 4; 555 UNTS (1966) pp. 262, 263. Cf., 4 NYIL (1973) pp. 326–327.
180. Art. 1 para. 1 reads: “The lines of maritime delimitation as established in the present Treaty, constitute, between the High Contracting Parties, the boundaries of their territorial seas, continental shelves, exclusive economic zones, or any other sea areas, including the sea-bed and subsoil, which have been or could be established by the Parties, in conformity with international law.”
181. Cf., the sea-chart added to Trb. 1978 No. 61.
182. Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands; see for the judgment of the Court 20 February 1969, ICJ Reports 1969, p. 3 et seq. Cf., 1 NYIL (1970) pp. 154–163, 2 NYIL (1971) pp. 180–181, 3 NYIL (1972) pp. 227–229.
183. Art. 4 paras. 2, 4, 6, 7 read (italic added):
“2. All Venezuelan ships and aircraft enjoy freedom of navigation and overflight exclusively for prompt and uninterrupted passage of the sea areas in question, to be called hereafter: the right of passage. The requirement of prompt and uninterrupted passage does not exclude navigation through or flight over these sea areas for the benefit of traffic to and from the Netherlands Antilles, provided that harbour rules and similar requirements for entry be observed. 4. If the Netherlands Antilles establishes navigation and air routes, this shall be done in accordance with the relevant rules of the law of the sea; in particular, these navigation and air routes must be suitable for safe, prompt and uninterrupted voyage through or over the sea areas in question. If the Netherlands Antilles does not establish navigation or air routes, the right of passage may be exercized along the customary routes of international navigation.
6. Ships in passage must observe the relevant rules of the law of the sea, especially:
(a) the internationally accepted rules, procedures and practices concerning the safety of navigation, the International Rules for the prevention of collisions at sea included;
(b) the internationally accepted rules, procedures and practices for the prevention, reduction and suppression of sea pollution by ships;
(c) the rules on board documentation and special safety measures, as agreed internationally with regard to nuclear-powered ships and ships loaded with nuclear or other materials that are of a dangerous or harmful character.
7. Aircraft in passage must observe the relevant rules of the law of the sea. In particular, they must:
(a) observe the rules laid down by the International Civil Aviation Organization: state-owned aircraft shall at all times manoeuvre in accordance with the existing rules in respect of the safety of aviation;
(b) listen at all times to the radio frequencies which have been allocated by the competent, international appointed authorities charged with air-traffic control, or to the relevant international emergency frequency.”
184. Art. 8 reads: “Should any dispute arise concerning the position of any installation or other device or well in relation to the dividing line, the High Contracting Parties shall, in consultation, determine on which side of the dividing line the installation or other device or well is situated.”
185. Agreement (relating to the delimitation of the continental shelf under the North Sea between the two countries), of 6 October 1965, Trb. 1965 No. 191; 595 UNTS p. 116.
186. Art. 4 para. 8 reads: “Measures for the prevention, reduction and suppression of pollution must be taken in consultation between the Parties as far as they affect shipping in the exercise of the right of passage. This applies especially to the international shipping routes running in the sea area extending between the Archipiélago de Los Monjes and the island of Aruba. The aforesaid requirement of consultation does not apply to the legislation and regulations by which the Netherlands Antilles carries out internationally accepted rules in respect of the emptying of oil tanks, oil-bearing waste and other harmful materials.”
Article 5 para 2 reads: “Artificial islands, installations and devices as well as the surrounding safety zones, the erection or establishment of which in a sea area of a Party may hinder the use of recognized shipping routes which are essential to the navigation to and from the other Party, shall only be erected or established in consultation between the Parties.”
187. Art. 12 reads in full:
“1. Any difference on the interpretation or application of the provisions laid down in Arts. 4, 5 and 6 of this Treaty, which Articles relate to shipping and aviation or to one and the same geological structure or geological field, that cannot be settled by negotiations between the High Contracting Parties, shall, unless the Parties agree on a different method of settlement, be referred, at the request of one of them, to a committee of experts consisting of three members. Each Party may appoint one member to the committee, the two members so appointed jointly appointing the third member.
2. If one of the Parties has not appointed a member within three months following the request to refer the dispute to the committee of experts, or if the third member is not appointed within a month of the appointment of the first two members, either Party may request the Secretary-General of the United Nations to appoint one member, or, if necessary, two members. If the Secretary-General has been requested to appoint two members, the second member shall be chosen from among the nationals of the Party which itself has not appointed its member.
3. The committee of experts shall lay down its own rules of procedure. All decisions of the committee shall be taken by majority. The Parties are bound by the decisions of the committee.”
188. Art. 6 reads: “If one and the same geological structure or geological field where minerals, petroleum or natural gas occur extends beyond the dividing line, and the part of this structure or of this field that is situated on one side of the dividing line can be exploited wholly or partially from the other side of the dividing line, the High Contracting Parties shall strive, after having sought advice on the suitable technical level, to reach agreement on the way in which this structure or field may be exploited, in the most efficient way as well as on the way in which the resulting expenses and proceeds shall be divided.”
189. Memorandum of 29 July 1978, Bijl. Hand. II 1977/78 – 15117 (R 1101) No. 3 pp. 3–7.
190. Treaty concerning arrangements for co-operation in the Ems estuary, of 8 April 1960, with Supplementary Agreement of 14 May 1962, Trb. 1960 No. 69, 1962 No. 54; 509 UNTS 1964 p. 64 et seq. p. 140 et seq.
191. Memorandum of 11 May 1978, Bijl. Hand. I 1977/78 No. 47e p. 5.
192. Cf., 1 NYIL (1970) pp. 152–153, 3 NYIL (1972) pp. 217–218, 6 NYIL (1975) pp. 296–297, 8 NYIL (1977) p. 195.
193. Draft Art. 22 paras. 1 and 2 read:
“1. Activities in the Area shall be organized, controlled and conducted by the Authority in accordance with the provisions of this Article and Annex I as well as other relevant provisions of this Part of the Convention, and the rules, regulations and procedures of the Authority adopted under Art 28(2) (xii).
2. Activities in the Area shall be conducted:
(i) directly through the Enterprise, and,
(ii) in association with the Authority and on its behalf by States Parties or State Enterprises, or persons natural or juridical which possess the nationality of States Parties or are effectively controlled by them or their nationals, when sponsored by scuh states, or any group of the foregoing.”.
194. Statement of 2 June 1977, Verslag van de Koninkrijksdelegatie naar de zesde zitting van de Derde VN-Zeerechtconferentie [Report of the Kingdom Delegation to the sixth session of the Third UNCLOS], vol. 1, Annex 8.
195. Cf., 2 NYIL (1971) pp. 182, 183–184.
196. Treaties of 3 December 1976, concluded in Bonn, Trb. 1977 Nos. 31–34.
197. Convention for the prevention of marine pollution from land-based sources, of 4 June 1974, Trb. 1975 No. 29; XIII ILM (1974) p. 352 et seq. Art. 18 para. 3, 3rd part, 1st sentence, reads: “Should unanimity not be attainable, the Commission may nonetheless adopt a programme or measures by a three-quarters majority vote of its members.”.
198. Statement of 20 June 1978, Hand. I 1977/78 p. 381.
199. Trb. 1974 Nos. 104, 015, 192; 1975 Nos. 77, 123.
200. See (WEU or Brussels) Treaty for collaboration in economic, social and cultural matters and for collective self-defence, 17 March 1948, Protocol No. III on the control of armaments, 23 October 1954, Part I, Art. 2, Trb. 1954 No. 179.p. 65; 211 UNTS p. 366.
201. Outer Space Treaty, of 27 January 1967, Trb. 1967 No. 31; 610 UNTS p. 206 et seq. Art. VI reads in part: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the state concerned.“. (italics added)
202. Memorandum of 21 November 1968, Bijl. Hand. II 1968/69 – 9464 (R 628) No. 7 p. 3.
203. Cf., operative paras. 5 and 7 of GA Res. 1962 (XVIII) of 13 December 1963.
204. Cf., Art. VII of the Outer Space Treaty, which reads in part: “… each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or in outer space, including the moon and other celestial bodies.”.
205. Letter of 4 January 1978, Bijl. Hand. II 1977/78 – 13846 No. 8 pp. 1–2.
206. Statement of 23 November 1977, Tweeëndertigste Zitting, pp. 132–133; also in Doc. A/C.1/32/PV.43 p. 8. Cf., 1 NYIL (1970) p. 163.
207. Cf., 8 NYIL (1977) p. 201 et seq., 9 NYIL (1978) p. 229 et seq.
208. Report of the ILC on the Work of its Twenty-Ninth Session, 9 May – 29 July 1977, GAOR, 32nd Session, Suppl. No. 10 (A/32/10), p. 21 et seq.; also in ILC Yearbook 1977 vol. II Part Two p. 11 et seq.
209. Draft Arts. 20–22 read in full:
“20. There is a breach of a state of an international obligation requiring it to adopt a particular course of conduct when the conduct of that state is not in conformity with that required of it by that obligation.
21.1. There is a breach by a state of an international obligation requiring it to achieve, by means of its own choice, a specified result if, by the conduct adopted, the state does not achieve the result required of it by that obligation.
21.2. When the conduct of the state has created a situation not in conformity with the result required of it by an international obligation, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the state, there is a breach of the obligation only if the state also fails by its subsequent conduct to achieve the result required of it by that obligation.
22. When the conduct of a state has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens, whether natural or juridical persons, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the state, there is a breach of the obligation only if the aliens concerned have exhausted the effective local remedies available to them without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment.”.
210. Statement of 3 November 1977, Tweeëndertigste Zitting, pp. 368–371; summary in Doc. A/C.6/SR.37, pp. 2–3.
211. Cf., 9 NYIL (1978) pp. 232–233.
212. Doc. A/AC.188/L.3. Art. 1 para. 1 reads in full: “Any person who seizes or detains another person (hereinafter referred to as ‘hostage’) and threatens with death or severe injury or continued detention of that person in order to compel
(a) A third person,
(b) A body corporate under national law,
(c) A state or
(d) An international organization or international conference to do or abstain from doing anything commits an act of taking hostages, an offence within the meaning of this Convention.”.
213. See Arts. 3(1)(b).
214. Protocl I relating to the protection of victims of international armed conflict, of 10 June 1978, Art. 1 para. 4 reads in full: “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”.
215. Statement of 2 December 1977, Tweeëndertigste Zitting, p. 380; summary in Doc. A/C.6/32/SR.61 p. 10.
216. Art. 3 para. 1 reads: “Each Contracting State in whose territory the offender is present with his hostage shall take such measures as it deems appropriate to ease the situation of the hostage and to secure his release.”. Art. 7 para. 1 reads: “The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that state.”.
217. Statement of 15 August 1977; summary in Doc. A/AC.188/SR.13; also in Doc. A/ 32/39 p. 72.
218. Art. 5 paras. 1 and 2 read:
“1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in Art. 1;
(a) That are committed in its territory or on board a ship or aircraft registered in that state,
(b) By which that state itself or an international organization of which the state is a member is to be compelled to do or abstain from doing anything or
(c) That are committed by any of its nationals.
2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in Art. 1 in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Art. 8 to any of the states mentioned in para. 1 of this article.”.
219. Netherlands Working Paper, Doc. A/AC.188/L.14.
220. See Arts. 7 of the (Hague) Convention for the suppression of unlawful seizure of aircraft, 16 December 1970, Trb. 1971 No. 50; X ILM (1971) p. 133 et seq., (Montreal) Convention for the suppression of unlawful acts against the safety of civil aviation, 23 September 1971, Trb. 1971 No. 218; X ILM (1971) p. 1151 et seq., (New York) Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents, Annex to GA Res. 3166 (XXVIII) of 14 December 1973; XIII ILM (1974) p. 41 et seq.
221. Statement of 16 August 1977; summary in Doc. A/AC.188/SR.16; also in Doc. A/ 32/39 p. 89.
222. Cf., 1 NYIL (1970) pp. 142–143, 6 NYIL (1975) p. 281.
223. See also Letter of the Under-secretary of State for Transport and Public Works, in which the Government reports having carried out a motion, adopted by the Second Chamber on 16 March 1978, aimed at terminating a contract between the respective postal services dated May 1977, under which holders of Dutch postal bank accounts were able to cash cheques in South Africa, Bijl. Hand. II 1977/78 – 14800 G No. 9.
224. Cf., SC Res. S/5386 of 7 August 1963; 7 NYIL (1976) pp. 270–271.
225. SC Res. 418 (1977) of 4 November 1977.
226. ‘EEC’ Code of conduct for companies with subsidiaries, branches or representation in South Africa, of 20 September 1977, text in Stc. of 8 November 1977, No. 218 p. 2.
227. Cf., 2 NYIL (1971) p. 160. Decree of the Minister of Social Affairs and Public Health, of 29 February 1956, Stc. of 12 March 1956 No. 51.
228. Treaty of 31 May 1951, Trb. 1951 No. 76.
229. See Bill of 4 July 1978, Bijl. Hand. II 1977/78 – 15084 No. 2.
230. Cf., 2 NYIL (1971) pp. 136–187.
231. Stb. 1959 No. 262, lastly amended by Royal Decree of 15 January 1965, Stb. 1965 No. 39.
232. Letter of 29 November 1977, Bijl. Hand. II 1977/78 – 14800 V No. 13.
233. Treaty of 4 March 1970, Trb. 1970 No. 41; IX ILM (1970) p. 658 et seq.
234. Reply of 1 December 1977, Aanh. Hand. II 1977/78 No. 372 p. 765.
235. See for the introduction of the Bill in Parliament 8 NYIL (1977) p. 205 et seq.
236. Statement of 6 October 1977, Hand. II 1977/78 p. 108.
237. See n. 235 supra.
238. Draft Art. 2 reads: “In compliance with decisions or recommendations by organs of inter-govemmental organizations [“organizations based on international law”] international accords concerning the maintenance or restoration of international peace and security or the promotion of the international legal order, rules may be laid down …”.
239. Verslag etc. [Report etc.], 1974 p. 8.
240. Memorandum of 23 May 1977, Bijl. Hand. II 1976/77 – 14006 No. 5 p. 14.
241. Art. 59 of the Constitution (1st sentence) reads: “The King shall not declare the Kingdom to be at war with another Power except with the previous consent of the States-General”.
242. Memorandum of 30 May 1978, Bijl. Hand. II 1977/78 – 15049 (R 1100) No. 3 p. 14.
243. Cf., with regard to the introduction by the Netherlands of a Working Paper on an International Organ for the Support of a C(hemical) W(eapons) Convention and other Disarmament Agreements, Doc. CCD/410, 31 July 1973, 4 NYIL (1973) pp. 352–353, 5 NYIL (1974) pp. 252–254, 6 NYIL (1975) pp. 306–307.
244. Doc. CCD/565, 30 March 1978.
245. Doc. A/AC.187/108, 5 April 1978; also in Stc. of 31 March 1978 No. 63 p. 5; Jaar-boek BZ 1977–1978, Annex 41 pp. 158B-160B.
246. See n. 244 supra at pp. 2–4.
247. Cf., 8 NYIL (1977) p. 222, 9 NYIL (1978) p. 237 et seq. The draft Articles read in full:
“1. The present articles apply to most-favoured-nation clauses contained in treaties between states.
2. For the purposes of the present articles:
(a) “treaty” means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
(b) “granting State” means a state which grants most-favoured-nation treatment;
(c) “beneficiary state” means a state which has been granted most-favoured-nation treatment;
(d) “third state” means any state other than the granting state or the beneficiary state;
(e) “material reciprocity” means that the beneficiary state is entitled to the treatment provided for under a most-favoured-nation clause only if it accords equivalent treatment to the granting state in the agreed sphere of relations.
3. The fact that the present articles do not apply (1) to arclause on most-favoured-nation treatment contained in an international agreement between states not in written form, or (2) to a clause contained in an international agreement by which a state undertakes to accord to a subject of international law other than a state treatment not less favourable than that extended to any subject of international law, or (3) to a clause contained in an international agreement by which a subject of international law other than a state undertakes to accord most-favoured-nation treatment to a state, shall not affect:
(a) The legal effect of any such clause;
(b) The application to such a clause of any of the rules set forth in the present articles to which it would be subject under international law independently of the articles;
(c) The application of the provisions of the present articles to the relations of states as between themselves under clauses by which states undertake to accord most-favoured-nation treatment to other states, when such clauses are contained in international agreements in written form to which other subjects of international law are also parties.
4. “Most-favoured-nation clause” means a treaty provision whereby a state undertakes to accord most-favoured-nation treatment to another state in an agreed sphere of relations.
5. Most-favoured-nation treatment means treatment accorded by the granting state to the beneficiary state or to persons or things in a determined relationship with that state, not less favourable than treatment extended by the granting state to a third state or to persons or things in the same relationship with a third state.
6. Nothing in the present articles shall imply that a state is entitled to be accorded most-favoured-nation treatment by another state otherwise than on the ground of a legal obligation.
7.1. The right of the beneficiary state to obtain from the granting state treatment extended by the latter to a third state or to persons or things in a determined relationship with a third state arises from the most-favoured-nation clause in force between the granting state and the beneficiary state.
7.2. The treatment to which the beneficiary state is entitled under that clause is determined by the treatment extended by the granting state to the third state or to persons or things in the determined relationship with the latter state.
8. A most-favoured-nation clause in a treaty is unconditional unless that treaty otherwise provides or the parties otherwise agree.
9. If a most-favoured-nation clause is not made subject to conditions, the beneficiary state acquires the right to most-favoured-nation treatment without the obligation to accord material reciprocity to the granting state.
10. If a most-favoured-nation clause is made subject to the condition of material reciprocity, the beneficiary state acquires the right to most-favoured-nation treatment only upon according material reciprocity to the granting state.
11.1. Under a most-favoured-nation clause the beneficiary state is entitled, for itself or for the benefit of persons or things in a determined relationship with it, only to those rights which fall within the scope of the subject-matter of the clause.
11.2. The beneficiary state is entitled to the rights under para. 1 only in respect of those categories of persons or things which are specified in the clause or implied from the subject-matter of that clause.
12.1. The beneficiary state is entitled to the rights under art. 11 for itself only if the granting state extends to a third state treatment which is within the field of the subject-matter of the most-favoured-nation clause.
12.2. The beneficiary state is entitled to the rights in respect of persons or things within categories under para. 2 of Art. 11 only if they
(a) belong to the same category of persons or things as those which benefit from the treatment extended by the granting state to a third state and
(b) have the same relationship with the beneficiary state as those persons or things have with that third state.
13. The beneficiary state, for itself or for the benefit or persons or things in a determined relationship with it, acquires under a most-favoured-nation clause the right to most-favoured-nation treatment independently of whether the treatment by the granting state of a third state or of persons or things in the same relationship with that third state has been extended gratuitously or against compensation.
14. The beneficiary state is entitled to treatment extended by the granting state to a third state whether or not such treatment is extended under an agreement limiting its application to relations between the granting state and the third state.
15. The beneficiary state is entitled to treatment extended by the granting state to a third state whether or not such treatment is extended under a bilateral or a multilateral agreement.
16. The beneficiary state is entitled to treatment extended by the granting state to a third state whether or not such treatment is extended as national treatment.
17. If a granting state has undertaken by treaty to accord to a beneficiary state most-favoured-nation treatment and national or other treatment with respect to the same subject-matter, the beneficiary state shall be entitled to whichever treatment it prefers in any particular case.
18.1. The right of the beneficiary state to any treatment under a most-favoured-nation clause not made subject to the condition of material reciprocity arises at the time when the relevant treatment is extended by the granting state to a third state.
18.2. The right of the beneficiary state to any treatment under a most-favoured-nation clause made subject to the condition of material reciprocity arises at the time of the communication by the beneficiary state to the granting state of its consent to accord material reciprocity in respect of the treatment in question.
19.1. The right of the beneficiary state to any treatment under a most-favoured-nation clause is terminated or suspended at the time when the extension of the relevant treatment by the granting state is terminated or suspended.
19.2. The right of the beneficiary state to any treatment under a most-favoured-nation clause made subject to the condition of material reciprocity is also terminated or suspended at the time when the termination or suspension of the material reciprocity in question is communicated by the beneficiary state to the granting state.
20. The exercise of rights arising under a most-favoured-nation clause for the beneficiary state and for persons or things in a determined relationship with that state is subject to compliance with the relevant laws of the granting state. Those laws, however, shall not be applied in such a manner that the treatment of the beneficiary state and of persons or things in a determined relationship with that state is less favourable than that of the third state or of persons or things in the same relationship with that third state.
21. A beneficiary state is not entitled under a most-favoured-nation clause to any treatment extended by a developed granting state to a developing third state on a non-reciprocal basis within a generalized system of preferences established by that granting state.
22.1. A beneficiary state other than a contiguous state is not entitled under the most-favoured-nation clause to the treatment extended by the granting state to a contiguous third state in order to facilitate frontier traffic.
22.2. A contiguous beneficiary state is entitled under the most-favoured-nation clause to the treatment extended by the granting state to a contiguous third state and relating to frontier traffic only if the most-favoured-nation clause relates especially to the field of frontier traffic.
23.1. A beneficiary state other than a land-locked state is not entitled under the most-favoured-nation clause to rights and facilities extended by the granting state to a land-locked third state to facilitate its access to and from the sea.
23.2. A land-locked beneficiary state is entitled under the most-favoured-nation clause to the rights and facilities extended by the granting state to a land-locked third state and relating to its access to and from the sea only if the most-favoured-nation clause relates especially to the field of access to and from the sea.
24. The provisions of the present articles shall not prejudge any question that may arise in regard to a most-favoured-nation clause from a succession of states or from the international responsibility of a state or from the outbreak of hostilities between states.
25. Without prejudice to the application of any rule set forth in the present articles to which most-favoured-nation clauses would be subject under international law independently of the articles, the articles apply only to most-favoured-nation clauses in treaties which are concluded by states after the entry into force of the present articles with regard to such states.
26. The present articles are without prejudice to the provisions to which the granting state and the beneficiary state may agree regarding the application of the most-favoured-nation clause in the treaty containing the clause or otherwise.
27. The present articles are without prejudice to the establishment of new rules of international law in favour of developing countries.
248. Report of the ILC on the Work of its Twenty-Eight Session, 3 May - 23 July 1976, GAOR, 31st Session, Suppl. No. 10 (A/31/10) p. 17, para. 45 et seq.
249. Doc. A/CN.4/308, of 28 March 1978, Section D p. 38 et seq., especially at p. 49.
250. See n. 248 supra at p. 63, para. 41.
251. Idem, at p. 27, para. 3.
252. Idem, at pp. 77–78.
253. Art. 28 of the Vienna Convention on the Law of Treaties reads: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”.
254. Cf., 9 NYIL (1978) pp. 237–238.
255. Observations of 3 May 1978, Doc. A/CN.4/308/Add. 1, pp. 2–7; also in Report of the ILC on the Work of its Thirtieth Session, 8 May – 28 July 1978, GAOR, 33rd Session, Suppl. No. 10 (A/33/10) pp. 419–424.
256. Cf., 9 NYIL (1978) p. 243.
257. Note of 15 August 1978, Bijl. Hand. II 1977/78 – 14800 V No. 43 p. 8.
258. Note of 5 September 1978, Bijl. Hand. II 1977/78 – 14800 V No. 46 pp. 10–11.
259. See n. 256 supra, at pp. 8–9.
260. See n. 197 supra.
261. Convention on the protection of the Rhine against chemical pollution, of 3 December 1976, Trb. 1976 No. 32; (Oslo) Convention for the prevention of marine pollution by dumping from ships and aircraft, of 15 February 1972, Trb. 1972 No. 62, XI ILM (1972) p. 262 et seq.; (London) Convention on the prevention of marine pollution by dumping of wastes and other matter, of 29 December 1972, Trb. 1973 No. 172, XI ILM (1972) p. 1294 et seq.; (Paris) Convention for the prevention of marine pollution from land-based sources, of 4 June 1975, Trb. 1975 No. 29.
262. (EC) OJ of 18 May 1976 No. L 129, p. 23 et seq.
263. Statement of 20 June 1978, Hand. I 1977/78 pp. 380–381.
264. The operative paras. 1–3 of GA Res. 3391 read: “The General Assembly, …
1. Affirms that the prompt restitution to a country of its objets d'art, monuments, museum pieces and manuscripts by another country, without charge, is calculated to strengthen international co-operation inasmuch as it constitutes just reparation for damage done;
2. Recognizes in this connection the special obligations incumbent upon those countries which had access to such valuable objects, either through particular claims or on other pretexts, as a result of their rule over or their occupation of a foreign territory;
3. Calls upon all states concerned to protect and safeguard the works of art which are still in territories under their domination.”.
265. Reply of 2 June 1977, Doc. A/32/203 of 27 September 1977, pp. 5–6.
266. Cf., para. 5(a)(b) of SC Res. 253 (1968) of 29 May 1968.
267. Cf., GA Res. 31/6 F of 9 November 1976.
268. Reply to written questions, of 10 October 1977, Aanh. Hand. II 1977/78 No. 86 pp. 181–182.
269. Memorandum of 11 May 1978, Bijl. Hand. I 1977/78 No. 47e pp. 5–6.