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Some Features of Dutch Treaty Practice*1

Published online by Cambridge University Press:  07 July 2009

H.H.M. Sondaal
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Extract

Since 1813 the Kingdom of the Netherlands has concluded over 6,000 treaties. It has a long standing practice, which took shape particularly after World War II, when international relations became part of the daily life of nations and the number of treaties increased dramatically, and again after the revision of the Dutch Constitution in 1953, when the relationship between the powers of the Government and Parliament regarding treaties was finally established. Current practice is determined by two characteristics. The first is the constitutional provision that, except in certain specified cases, consent for the Kingdom of the Netherlands to be bound by a treaty cannot be given unless the treaty has been approved by Parliament. In practice the rule is interpreted in such a way as to strike a balance between the Government's need to conduct an efficient and effective foreign policy and Parliament's need to exercise proper supervision over that policy. The second characteristic is that, in applying these constitutional provisions (for text see Appendix 1), the term ‘treaty’ is interpreted substantively. Whether an instrument substantively constitutes a treaty is also a matter of interpretation, since international instruments vary so much in form and content that many of them are scarcely covered by the brief constitutional provisions on treaties.

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Articles
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Netherlands Yearbook of International Law , Volume 19 , December 1988 , pp. 179 - 257
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Copyright © T.M.C. Asser Press 1988

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References

2. See also de Jong, H.G., ‘Het begrip “verdragen” in de Nederlandse Grondwet’ [The concept of ‘treaties’ in the Dutch Constitution], RM Themis (1979) pp. 484–492.Google Scholar

3. Bijl. Hand. II 1955/56 — 4133(R 19) No. 3 p. 1. Bijl. Hand. II 1977/78 – 15049(R 1100) No. 3 p. 6. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 7 p. 6. Bijl. Hand. II 1985/86 — 17980 No. 14 p. 3, under 14, 16 and 24. Bijl. Hand. II 1985/86 – 19290 No. 4 p. 3.

4. Trb. 1978 No. 143, section G.

5. Art. 60 of the 1972 version of the Constitution, which reads as follows: ‘Agreements with other Powers and with organizations based on international law shall be concluded by or by authority of the King. If required by such agreements they shall be ratified by the King. The agreements shall be communicated to the States General as soon as possible; they shall not be ratified and they shall not enter into force until they have received the approval of the States General. The courts shall not be competent to pronounce on the constitutionality of agreements’.

6. See: Bijl. Hand. II, 1977/78 – 15049(R 1100), No. 3 p. 6; Bijl. Hand. II, 1979/80 – 15049 (R 1100), No. 7 pp. 6 and 12; No. 10 p. 4.

7. Trb. 1976 No. 76.

8. The Länder, insofar as they are responsible for legislation, may with the concurrence of the Federal Government, conclude treaties with foreign States. (Author's translation).

9. Trb. 1976 No. 75.

10. van Panhuys, H.F., Het recht in de wereldgemeenschap [The law in the world community] (1974) pp. 40, 41 and 43Google Scholar. Stuyt, op. cit. n.1, p. 24.

11. See Australian Treaty Series, 1972, No. 18; also Widdows, K., ‘What is an Agreement in International Law?’, 50 BYIL (1979) p. 143, note 4.Google Scholar

12. Bijl. Hand. II 1972/73 – 12249 No. 1.

13. Ibid. pp. 2–3.

14. Bijl. Hand. II 1981/82 – 17100 (XIII) No. 2 p. 64, under COST.

15. Ibid.

16. An example of the competent authorities referred to here would be a Cabinet Minister with responsibility for a particular government department.

17. This article by van den Brandhof, J.C.E., entitled ‘Administratieve Overeenkomsten in het Internationaal Publiekrecht’ [Administrative Agreements in Public International Law], 61 NJB (1986) pp. 1277–1282Google Scholar, describes how, owing to the increasingly close contacts between many countries, the need has arisen for simpler ways of laying down international rules than by means of treaties, particularly in the case of agreements on defence research. In the main this need has been met by administrative agreements which differ in certain basic respects from treaties. These administrative agreements may well constitute a new, previously unacknowledged source of public international law.

18. See the opinions of Vierdag, E.W. and Lijnzaad, L., 62 NJB (1987) pp. 243–245.Google Scholar

19. Bothe, M., ‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?’, 11 NYIL (1980) pp. 70–75.CrossRefGoogle Scholar

20. See, e.g., Art. 11(2)(f)(ii) and (iii) of the International Convention for the Safety of Fishing Vessels (Torremolinos, 2 April 1977; Trb. 1980 No. 139), and Article III(2)(f) of the International Convention on Maritime Search and Rescue (Hamburg, 27 April 1970; Trb. 1980 No. 181).

21. This was the Government's view at the time of the 1983 revision of the Constitution (Bijl. Hand. II 1977/78 – 15049 (R 1100) No. 3 p. 9 and Bijl. Hand. II 1979/80 – 15049(R 1100) No. 7 p. 3). It did not constitute a change in relation to the pre-1983 situation, however. (Bijl. Hand. I 1981/82 – 16905 No. 47a pp. 3–5 and Bijl. Hand. II 1981/82 – 17452(R 1207) (B)).

22. The Standing Order for the Cabinet lays down that the Cabinet shall consider and decide upon important matters of foreign policy.

23. Subject to the Prime Minister's special responsibility, as mentioned earlier, for the coherence of government policy as a whole.

24. This again leaves the pre-1983 situation unaltered.

25. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 7 p. 4 and No. 10 p. 2.

26. See supra.

27. See supra.

28. See supra.

29. Royal full powers are countersigned by the Minister for Foreign Affairs.

30. The procedure for the issue of full powers applies equally to documents such as credentials of delegations and instruments of acceptance, approval, ratification and accession. Credentials relating to treaties to which States can become party only by ratification and instruments of ratification are issued by the Sovereign, since the Sovereign has always been regarded as possessing sole power to ratify; they are countersigned by the Minister for Foreign Affairs. Instruments of acceptance, approval and accession, on the other hand, are always issued by the Minister, since these are not regarded as being subject to a royal prerogative. Examples of English versions – insofar as they exist – of credentials, full powers and instruments of ratification, acceptance, approval and accession, both royal and ministerial, can be found in Appendix 2.

31. The meaning of the phrase ‘expressing consent to be bound’ as used here differs slightly from its usage in the. Vienna Convention, in that it does not cover the signing of a treaty, for reasons explained in 4.4 under the heading ‘Final clauses’.

32. This reads as follows:

‘A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: …

(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purpose and to dispense with full powers.’

33. See supra.

34. See, eg., Art. 2 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague, 15 November 1965; Trb. 1966 No. 91) and Art. 2 of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (The Hague, 18 March 1970; Trb. 1979 No. 38).

35. The reason given for this in the explanatory note to the last amendment to the Standing Order for the Cabinet is that the range of matters the Cabinet has to deal with is too wide to permit specification, and they could include both implementing the Government's programme and seeing that Government departments function properly.

36. The first list was compiled during the 1981–82 session of Parliament, Bijl. Hand. II 1981/82 – 17100 (V) No. 6 (reprinted) and No. 135. See also: Bijl. Hand. II 1982/83 – 17600 (V) Nos. 32, 36, 51 and 52; Bijl. Hand. II 1983/84 – 18100 (V) Nos. 19, 68 and 94; Bijl. Hand. II 1984/85 – 18600 (V) Nos. 42, 60, 81 and 118; Bijl. Hand. II 1985/86 – 19200 (V) Nos. 56, 77, 84 and 85; Bijl. Hand. II 1986/87 – 19700 (V) Nos. 70, 93 and 108; Bijl. Hand. II 1987/88 – 20200 (V) No. 79.

37. This rule has entered the Constitution gradually. Under the 1814 Constitution the ‘Sovereign Prince” was merely required to notify the States General of treaties that had been concluded. The 1815, 1848 and 1887 revisions each made the requirement of prior Parliamentary approval applicable to a new type of treaty regarded as important: treaties concluded in peacetime concerning renunciation or exchanges in 1815, those concerning ‘statutory rights’ in 1848 and those that imposed financial obligations on the Kingdom in 1887. This process of democratization was completed in 1922 when, with certain exceptions laid down by Act of Parliament, all treaties and other agreements were made subject to prior Parliamentary approval. The distinction between a ‘treaty’ and an ‘agreement’ was purely formal: in those days only documents cast in solemn treaty form were regarded as treaties; all other ‘formless’ agreements were referred to as agreements. Because of this formal distinction, and confusion caused by the meaning of the term ‘agreement’, an amendment was passed which restricted the requirement of Parliamentary approval to treaties; Parliament merely had to be notified of agreements. Since to regulate a particular matter the Government could choose between the solemn treaty form and a simpler form (i.e., an agreement), and in practice it increasingly opted for the simple form, the 1922 revision was not the logical outcome of a trend towards democracy but an illogical break in the process, which the 1953 revision corrected. The guiding thought behind the latter revision was to find a suitable means of allowing Parliament to be involved in foreign policy decisions, in particular in the conclusion of treaties. This was achieved by stipulating prior Parliamentary approval for all treaties in principle. To prevent this requirement impeding rapid and efficient action by the Government in the international community, the tacit approval procedure was introduced and a few types of treaty were exempted from approval.

38. See supra.

39. Kortmann, C.A.J.M., De Grondwetsherziening 1983 [The 1983 revision of the Constitution] (1983) p. 2.Google Scholar

40. Kortmann, C.A.J.M. and de Graaf, T.C., ‘De procedure tot goedkeuring van verdragen en Art. 91, derde lid, Grondwet’ [The procedure for the approval of treaties in relation to Art. 91 (3) of the Constitution], 59 NJB (1984) p. 1154, fn. 14Google Scholar

41. Bijl. Hand. II 1983/84 – 17980 No. 9 pp. 2–3, in reply to Question 14.

42. Bijl. Hand. II 1977/78 – 15049(R 1100) No. 3 pp. 5–7; 1979/80 No. 7 pp. 7–8; No. 10 p. 3; Hand. II 1979/80 p. 3; Hand. I 1980/81 p. 236.

43. Bijl. Hand. II 1977/78 – 15049(R 1100) No. 3 p. 8; 1979/80 No. 7 p. 10; No. 10 pp. 6–7.

44. Bijl. Hand. II 1985/86 – 19290 No. 1.

45. Bijl. Hand. II 1982/83 – 17824 No. 1.

46. Bijl. Hand. II 1981/82 – 17138 No. 1.

47. The State Secretary for Foreign Affairs, a political appointee, is a junior minister, subordinate to the Minister for Foreign Affairs. His responsibilities at present are: 1. matters relating to co-operation in, and the integration of, Europe; 2. bilateral and multilateral relations in the fields of economics, social policy, culture, science and technology; 3. transport matters; and 4. environmental matters; insofar as the Minister does not reserve the right to deal with these matters himself.

48. Biji. Hand. II 1951–52 – 2374 No. 10 p. 30.

49. Biji. Hand. I 1952/53 – 2700 No. 63 p. 2 and No. 63a p. 2.

50. See the Standing Order for the Lower House of the States General, 6th edn. (revised), September 1983, rule 114; the Standing Order for the Upper House of the States General, last issued by decree of 6 September 1983, Art. 163.

51. The time limit for notifying the wish of the Lower House to subject the treaty to explicit approval was 10 October 1984. Enough members of the House expressed this wish on 4 October, before the limit had expired, but the Deputy Speaker did not notify the Government by letter until 12 October 1984, and no provisional notification was made. As far as the Speaker's Office was concerned there was no problem: a wish has been expressed in good time if it has been made known to the Speaker before the time limit expires. The Government did not agree, taking the view that the wish must be made known in good time to the Government; thus the date of receipt of the notification by the Government is the decisive factor. I share the Government's view, which is based on the argument that the Government, correctly considering that the time limit has expired, will proceed to express consent to be bound by the treaty. Since it has rightly been agreed that, if Parliament is to be permitted to do its job properly, the thirty-day period cannot begin until the date of receipt of the letters by Parliament, if the Government is also to be able to do its job properly, it must be aware that a wish to submit a treaty to explicit approval has been expressed before the time limit has expired. Entirely in accordance with its own view, the Government had the treaty enter into force following consultations with the appropriate Parliamentary Standing Committee (on Social Affairs and Employment), which revealed that a majority in the Lower House was in favour of the treaty; the Government did not submit a Bill to approve the treaty. We may conclude that the Government must be notified of a wish to subject a treaty to explicit approval – i.e., notification of the breaking of silence must be received by the Government – before the expiry of the time limit.

52. As n. 50, Arts. 45 and 177, and 165 and 167, respectively.

53. Bijl. Hand. II 1979/80 – 15517 No. 6 p. 1.

54. Bijl. Hand. 15957.

55. The Member of Parliament was S. Patijn.

56. Bijl. Hand. II 1983/84 18100 (V) No. 19 pp. 8–9.

57. See supra.

58. It is strange, therefore, to read in the report of the proceedings in the Lower House concerning the Bill to approve the Agreement of 31 October 1983 with Iraq on Economic and Technical Co-operation that the Parliamentary Labour Party regretted that the explanatory memorandum consisted of no more than a reference to the explanatory note, since the fact that the silence was broken can only have meant that the House wanted more information! Whilst this may be true, surely it is not too much to ask that some indication be given of the kind of information desired? The Government accordingly says that unless it knows the reason for the refusal to grant tacit approval it is unable to provide any fresh information in the explanatory memorandum (Bijl. Hand. II 1983/84 – 18297(R 1250) No. 6 p. 1 and No. 7 p. 1).

59. The silence was broken because some MPs wished to debate not so much the Resolution or the text of the treaty as the question of Dutch participation in a new CERN project. When the Government insisted on the importance of the Resolution taking effect quickly, but agreed to a debate on the general question, the MPs were prepared to withdraw their request for explicit approval, and the House consented. Three conclusions can be drawn from this case: (a) withdrawal is a matter not for the MPs who break the silence but for the House as a whole, since other MPs might have had the same idea but have done nothing about it, given that some Members had already broken the silence; (b) withdrawal does not affect the right of the Upper House or its Members to break their silence; and (c) given conclusions (a) and (b), it cannot be regarded as setting a precedent. (Bijl. Hand. II 1969/70 - 10500, No. 4 and Hand. II 1969/70 pp. 2166–2167).

60. Bijl. Hand. II 1980/81 – 16623(R 1156) No. 3 (reprinted) and Hand. II 1980/81 pp. 3585–3586, 3659.

61. Hand. II 1955/56 pp. 793–794 and 801.

62. See, e.g., Bijl. Hand. II 1959/60 Supplement Nos. 13 and 14, and Hand. II 1959 pp. 127–128, 130–131, 168–175.

63. Exchange of notes to amend the Agreement on the Installation of a Shore Radar System along the Western Scheldt and its Estuaries.

64. Bijl. Hand. 18411.

65. Bijl. Hand. II 1983/84 – 18100 (V and XII) No. 110 and Bijl. Hand. II 18392.

66. Hand. I 1955/56 pp. 371 and 401; see also Bijl. Hand. II 1956/57 No. 4 p. 1 and No. 5 p. 2; Hand. II 1956/57 p. 1084.

67. Hand. II 1983/84 p. 3283; cf., Bijl. Hand. II 1985/86 – 19225(R 1299).

68. Cf., Bijl. Hand. II 18130.

69. Cf., Hand. II1982/83 – 17690(R 1221) B and C; cf., also Bijl. Hand. II 1983/84 – 17980 No. 9 p. 4, reply to Question 21.

70. Bijl. Hand. II 1983/84 – 17980 No. 9 pp. 2–3, reply to Question 14.

71. Ibid. p. 4, reply to Question 22.

72. Ibid. p. 3, reply to Question 15.

73. Ibid. p. 4, reply to Question 19; see also Bijl. Hand. II 1983/84 – 17980 (A) p. 3.

74. That of the Government, the Council of State, the States General and a majority of Dutch scholars.

75. Kortmann and De Graaf, op.cit.n.40, p. 1150.

76. Bijl. Hand. II 1951/52 – 2374 No. 3 pp. 4 and 6 and No. 10 p. 30.

77. Ibid. No. 3 p. 6.

78. Lammers, op. cit. n.1, p. 349.

79. Bijl. Hand. II 1956 – 4401(R 42) Nos. 1–6; 1956/57 – 4401(R 42) No. 7; 1957/58 – 4401(R 42) Nos. 8 and 9.

80. See infra

81. Stuyt, op. cit. n.1, p. 81, notes 38 and 59.

83. The Government also recognized the possibility that the Upper House could make a ‘declaratory pronouncement’ to the effect that according to its view, it was appropriate to enter a reservation in a particular case. The Government regarded this as a potential ‘inelegantia juris’

83. The Government also recognized the possibility that the Upper House could make a ‘declaratory pronouncement’ to the effect that according to its view, it was appropriate to enter a reservation in a particular case. The Government regarded this as a potential ‘inelegantia juris’ in the case of an Act to approve a basic treaty (since the Upper House has no powers of amendment) and was in favour of changing this situation. (Hand. I 1952/53 pp. 461–462, 478, 481–482, 484).

84. Bijl. Hand. II 1955/56 – 4133(R 19) No. 3 p. 4.

85. If the Lower House does not include a reservation which the Upper House would like to see in the Act, the Upper House has no option other than to reject the Bill, since it cannot amend it.

86. Bijl. Hand. II 1951/52 – 2374 No. 9 p. 24.

87. See supra.

88. Bijl. Hand. II 1951/52 2374 No. 3 p. 7.

89. Duynstee, F.J.F.M., Grondwetsherziening 1953 [The 1953 Revision of the Constitution] (1954) Art. 62, pp. 10–11.Google Scholar

90. Bijl. Hand. II 1953/54 – 3280 No. 117a p. 13; cf., also, Bijl. Hand. II 1952/53 – 2911 No. 13 p. 2.

91. Bijl. Hand. II 1968/69 – 9829 No. 6 p. 5.

92. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 10 pp. 5–6.

93. Bijl. Hand. II 1977/78 – 14997(R 1094) No. 1 p. 3; Bijl. Hand. II 1977/78 – 15011(R 1096) No. 3 p. 22. I should like to consider Duynstee's argument that the presence of a ratification clause (or equivalent clause) in an additional treaty gives rise to the virtually irrefutable presumption that the additional treaty is not an implementing treaty (op. cit. n.89, Art. 62, p. 15). I do not agree. Duynstee fails to distinguish sufficiently between the international and domestic aspects of a treaty. If the other party or parties wish to include a ratification clause for reasons of their own, why should the Netherlands refuse – not because the treaty would not require Parliamentary approval in the Netherlands?

94. A Committee under the Chairmanship of Jonkheer van Eysinga, a former member of the Permanent Court of International Justice, to advise the Government on co-operation between the Government and the States General on foreign policy matters, including the adaptation of constitutional law to developments in the international field.

95. Bijl. Hand. II 1951/52 – 2374 No. 3 p. 7.

96. Bijl. Hand. II 1954/55 – 3869 No. 1.

97. The Government based its approach here on the view adopted during the 1953 revision of the Constitution, and not subsequently refuted, that the exception under Art. 62(1)(b) applied even if the agreement in question concerned the implementation of an agreement approved before the 1953 revision. (Bijl. Hand. I 1954/55 – 3700 (III) Nos. 1156 and 115c, in conjunction with Bijl. Hand. II 1954/55 – 3869 No. 1).

98. Bijl. Hand, as n.97.

99. Trb. 1959 No. 53.

100. Hand. II Extraordinary Session 1959 pp. 169–175.

101. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 10 p. 6.

102. Ibid. No. 9 pp. 4–5.

103. Just how seriously the Government took this point can be judged, for instance, from the fact that it submitted the Agreement with the United States on the Stationing of Cruise Missiles to Parliament for approval rather than cast it in the form of an implementing treaty (Bijl. Hand. II 1983/84 – 17980 No. 9 pp. 1–2, reply to Questions 5 and 7).

104. Thus the Government supported the view of the Van Eysinga Committee, which decided that reservations could be entered to existing treaties (Final Report of the Committee mentioned in n.94, 9 July 1951, p. 19). In connection with the Parliamentary approval of a number of Declarations agreed upon in the framework of the European Space Agency the Government restated the possibility of subsequently including a reservation as to the approval of implementing treaties in an approving Act (Bijl. Hand. II 1983/84 – 17306 No. 9 p. 4).

105. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 10 p. 6; Hand. II 1979/80 p. 4089.

106. Bijl. Hand. 1979/80 – 16077 No. 1 pp. 1 and 3.

107. See Art. 7 of the Act of 22 January 1954, Stb. 1954 No. 25 (European Defence Community), Art. 6 of the Act of 5 December 1957, Stb. 1959 No. 493 (Treaty of Rome) and Art. 5 of the Act of 5 December 1957, Stb. 1957 No. 494 (Euratom Treaty).

108. The criticism was made in connection with two treaties, the International Convention for Safe Containers of 2 December 1972 and the International Convention on the Harmonisation of Frontier Controls of Goods of 21 October 1982. See Bijl. Hand. II 1983/84 – 18298(R 1251) B and C, TO). 1976 No. 28; Bijl. Hand. II 1984/85 – 18837(R 1278) B and C, Trb. 1984 No. 29.

109. See infra.

110. Final Report of the Committee mentioned in n.94, 9 July 1951, p. 19.

111. Bijl. Hand. II 1951/52 – 2374 No. 3 p. 7.

112. See, e.g., Trb. 1982 No. 3 and Trb. 1979 No. 2.

113. Cf., the Benelux Agreement with Togo of 1, 12 and 16 September 1970; Trb. 1970 No. 202 and Bijl. Hand. II 1970/71 – 11180(R 776) No. 1.

114. Bijl. Hand. II 1979/80 – 15805 No. 1.

115. Final Report of the Committee mentioned in n.94, 9 July 1951, p. 23.

116. Final Report of the Committee mentioned in n. 82, pp. 157–158; Bijl. Hand. II 1951/52 – 2374 No. 3 pp. 4–5.

117. Bijl. Hand. II 1951/52 – 2374 No. 10 p. 31; Hand. II 1951/52 pp. 1914–1915.

118. See, e.g., Hand. II 1951/52 pp. 1877–1879, 1882, 1890, 1893, 1903–1905.

119. Ibid. pp. 1890 and 1914–1915.

120. Ibid. p. 1954.

121. Ibid. pp. 1953–1956; see also Bijl. Hand. II 1951/52 – 2374 No. 30.

122. Bijl. Hand. I 1951/52 – 2374, Provisional report p. 3 and Memorandum of Response p. 8.

123. Bijl. Hand. I 1953/54 – 3200 (III) No. 117 p. 11 et seq. and No. 117a p. 12 et seq.; Hand. I 1953/54 pp. 548–553, 560–561; Bijl. Hand. I 1954/55 – 3700 (III) No. 115 pp. 15–16, No. 115a, p. 12; Bijl. Hand. II 1954/55 – 3429 No. 4; Hand. I 1955/56 pp. 187–198.

124. Committee under the chairmanship of Prof. Kranenburg, member of the Council of State, set up to advise the Government on technical readjustments to some of the articles of the Constitution amended in 1953. The Committee was established by Ministerial Order of 1 September 1954, No. 100622.

125. See the report of the Advisory Committee referred to in n. 124, The Hague, 1955, pp. 10–12.

126. The qualification ‘that it is in the interests of the Kingdom that the agreement should enter into force without delay’ has been replaced by ‘[that] it is definitely not in the interests of the Kingdom that the agreement should not enter into force until it has been approved’. This established a link with the wording of Art. 60(2) and made it clearer that the provision was concerned with the power to have a treaty enter into force without prior Parliamentary approval. There was no longer a separate compulsory notification clause as there had been in 1953: (a) this obligation followed from the general rule contained in Art. 60(2); (b) an explicit reference in Art. 62(2) could give rise to the incorrect conclusion that the obligation did not apply to the exceptions mentioned at (a)-(c); and (c) the phrase ‘without delay’ in paragraph (2) might be confusing in conjunction with the phrase ‘as soon as possible’ in paragraphs (2) and (3) of Art. 60. If approval were to be withheld the treaty was to be renounced not ‘as soon as is consistent with the provisions of the treaty’ but ‘as soon as possible under the law’. The phrase ‘possible under the law’ refers to the rules of written and unwritten international law. It should be noted lastly that the 1956 revision of the Constitution demonstrates irrefutably that approval post factum can be either explicit or tacit. (See report referred to in n.125, pp. 12–13; Bijl. Hand. II 1955/56 – 4133(R 19) No. 3 p. 4 and No. 7 p. 4.)

127. Bijl. Hand. II 1963/64 – 7222 No. 4.

128. Cf., United Nations decision-making procedures (General Assembly/Security Council), in respect of which the States General can call the Government to account in the customary manner.

129. For a more detailed discussion of this topic see, e.g., Erades, L., International Law and the Netherlands Legal Order, International Law in the Netherlands, Vol. III (1980) pp. 375–434.Google Scholar

130. The term ‘direct’ should not be taken to mean ‘without reference to any provision of domestic law’; i.e., even treaty provisions which the courts can only apply in conjunction with existing statutory provisions are capable of direct application in the meaning of the Constitution (Bijl. Hand. II 1977/78 – 15049(R 1100) No. 3 p. 12). The use of terminology in relation to the significance and interpretation of these clauses in the Constitution is varied and confusing; see de Rouw, A.C.J., ‘Verwarring door verwoording – een ieder verbindende verdragsbepalingen in de Nederlandse rechtspraak’ [Terminological confusion: universally binding treaty provisions in Dutch case law], Tien Jaren T.M.C. Asser Instituut 1965–1975 (1975) p. 79 et seq.Google Scholar

131. Bijl. Hand. II 1979/80 – 15049(R 1100) No. 10 p. 10; Bijl. Hand. I 1980/81 – 15049(R 1100) No. 19 p. 2.

132. The term ‘tested’ refers not only to the examination to decide whether domestic law should be adjudged inapplicable and international law applied or vice versa, but also to the actual application of one and non-application of the other. Cf., Meijers, H., ‘Rond het internationale gewoonterecht in Nederland, Preadvies’ [About customary international law in the Netherlands], 91 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (1985) pp. 90–91.Google Scholar

133. Bijl. Hand. II 1955/56 – 4133(R 19) Nos. 2 and 3, p. 5; cf., The Hague Court of Appeal, 26 October 1984, RV (1984) No. 115.

134. Bijl. Hand. II 1977/78 – 15049(R 1100) No. 3 p. 12.

135. See Hand. II 1955/56 p. 802.

136. Ibid. n.134.

137. Publication in the Tractatenblad or the Official Journal of the European Communities or Benelux is not essential for such ‘cognizance’ to be taken; this could also occur as a result of notification to those directly concerned.

138. See, e.g., Supreme Court, 6 March 1959, NJ (1962) No. 2; Leeuwarden Court of Appeal, 24 April 1968, NJ (1969) No. 201; Council of State, 3 January 1980, RvS/R.71/80.

139. See Supreme Court, 8 November 1968, NJ (1969) No. 10; cf., also Leiden Cantonal Court, 26 July 1972, NJ (1974) No. 124.

140. See, e.g., Supreme Court, 24 February 1960, NJ (1960) No. 483, 8 NILR (1961) p. 285; The Hague District Court, 6 May 1960, NJ (1961) No. 149, 8 NILR (1961) p. 383; Rotterdam District Court, 19 December 1972, S&S (1973) No. 34, 5 NYIL (1974) p. 326.

141. See, e.g., Supreme Court, 13 April 1960, NJ (1960) No. 436, 8 NILR (1961) p. 286; Supreme Court, 18 April 1961, NJ (1961) No. 273, 9 NILR (1962) p. 315; Council of State, 10 February 1981, AB (1981) 446.

142. Supreme Court, 28 November 1961, NJ (1962) No. 90, 11 NILR (1964) p. 83; Supreme Court, 25 April 1967, NJ (1968) No. 63, 17 NILR (1970). p. 195; Royal Decree, 25 October 1965, No. 8, AB (1966) p. 10 et seq.; Royal Decree, 14 November 1968, No. 50, AB (1969) p. 123 et seq., 1 NYIL (1970) p. 219; Royal Decree, 14 August 1970, No. 73, AB (1971) p. 193 et seq., 3 NYIL (1972) p. 281. The European Court of Justice takes as its criteria the spirit, the structure (‘economy’) and clarity of the text. It further takes the view that the act which the States are compelled by the directly applicable treaty provision to perform must be entirely specific as to its content. See, e.g., judgment of 5 February 1963, 26/62 Jur. IX, pp. 5–59 and judgment of 19 December 1968, 13/68, Jur. XIV, pp. 32–56.

143. In the dispute between the Federation of Dutch Trades Unions and the State of the Netherlands concerning the ‘breadwinner’ requirement in Section 13(1)(b) of the Unemployment Provisions Act, the Appeal Court in The Hague ruled that failure to withdraw domestic legislation which conflicts with universally binding treaty provisions does not constitute an unlawful act on the part of the State and that a court discovering a conflict of this kind does not have the power to order the legislature to introduce concordant legislation, whether before a certain date or otherwise. (The Hague Court of Appeal, 13 March 1985, NJ (1985) No. 263, infra p. 433 n. 16

144. As argued by Meijers, loc.cit. n.132, pp. 114–115.

145. Bijl. Hand. II 1979–80 – 15049(R 1100) No. 10.

146. Cf., Bijl. Hand. I 1952/53 – 2700 No. 63a p. 3. I would nevertheless argue even in the case of treaties which lay down target obligations that the legislation required should be complete, as far as possible, by the time the treaty enters into force, since there is a by no means inconceivable risk that it will end up being introduced too late if at all.

147. The argument was put forward by S. Patijn MP, who described this linkage as undermining the legal protection private individuals should be able to derive from a treaty.

148. Hand. II 1979/80 pp. 3921–3922.

149. Ibid. p. 4090.

150. 15 NJCM Bulletin (1979) pp. 53–55, 10 NYIL (1979) p. 494.

151. Sinclair, I.M., The Vienna Convention on the Law of Treaties (1973) pp. 36–38.Google Scholar

152. Bijl. Hand. II 1982/83 – 17798(R 1227) No. 3 p. 16. In other words, provisional application is a means of meeting urgent needs (reacting rapidly to new developments) without detriment to the traditional, often time-consuming system whereby States cannot bind themselves to a treaty until they have satisfied the domestic requirements.

153. Bijl. Hand. II 1982/83 – 17798(R 1227) No. 3 p. 16.

154. Ibid. p. 17.

155. UN Conference on the Law of Treaties, Official Records, Second Session, A/CONF.39/11/Add.1, p. 43.

156. ILC Yearbook 1966 Vol. 2, p. 211, para. (3).

157. Bijl. Hand. II 1982/83 – 17798(R 1227) No. 3 p. 17.

158. Ibid.

159. See, e.g., Art. 39 of the International Agreement on Jute and Jute Products, 1982 (Geneva, 1 October 1982; Trb. 1983 No. 84).

160. This is not in fact an automatic right if third parties who have acted in good faith on the basis of a unilateral declaration would suffer as a result of its withdrawal. Another point is that termination of provisional application by withdrawing the declaration cannot have retrospective effect: the terminating State must honour any obligations which have arisen, and any rights which have been conferred may be exercised.

161. See, e.g., the Protocol on the provisional application of the Agreement amending the supplementary agreement (15 July 1957) to the Statute of the European School, concerning the fixing of a regulation for the European Baccalaureate (Luxembourg, 11 April 1984; Trb. 1984 No. 67, pp. 9 and 10).

162. In this form of provisional application, it follows from the right laid down in Art. 25(2) of the Vienna Convention to terminate such application as soon as a State decides after all not to become party to the treaty that the separate treaty may be renounced at any time provided it contains no provisions on the matter or no provisions to the contrary. In such cases

Art. 25(2) overrides Art. 56 of the Vienna Convention.

163. See, e.g., Art. XXII of the Agreement between the Kingdom of the Netherlands and the Government of the Republic of Zimbabwe for air services between and beyond their respective territories (Harare, 30 January 1984; Trb. 1984 No. 28).

164. Bijl. Hand. II 1982/83 – 17798(R 1227) No. 3 p. 17.

165. Under additional Art. XXI of the Constitution and Art. 62 (1)(d) of the 1972 version (see Appendix 1).

166. Ibid, n.164.

167. The time limit under Art. 56(2) of the Vienna Convention does not apply, since in this particular case Art. 25(2) overrides it (see n.162).

168. Ibid, n.164.

169. Lammers also seems to be inclined towards this conclusion (loc.cit. n.1, pp. 354–355).

170. Ibid. n. 164, p. 18.

171. Bijl. Hand. I 1983/84 – 1779(R 1227) No. 44a pp. 3–5.

172. See, e.g., Art. XVII of the Agreement between the Kingdom of the Netherlands and the State of Qatar for air services between and beyond their respective territories (The Hague, 6 December 1980, Trb. 1981 No. 17).

173. See, e.g., the Agreement with Morocco on economic co-operation, with letters (Rabat, 23 December 1971; Trb. 1972 No. 14; Trb. 1973 No. 11, section J and Trb. 1974 No. 8, section J).

174. See, e.g., van Helsdingen, W.H., Het Statuut voor het Koninkrijk der Nederlanden [The Charter of the Kingdom of the Netherlands] (1957)Google Scholar; Kranenburg, R., De nieuwe structuur van ons Koninkrijk [The new structure of our Kingdom] (1955)Google Scholar; van der Pot, C.W., Handboek van het Nederlandse Staatsrecht [Manual of Dutch Constitutional Law], Donner, A.M., ed., 11th rev. edn. (1983) pp. 593–616Google Scholar; Winklaar, N.J., in Volkenrechtelijke aspecten van Antilliaanse onafhankelijkheid [International law aspects of the independence of the Netherlands Antilles] (1980) Ch. III, p. 76.Google Scholar

175. For the most recent text of the Charter see Stb. 1985 No. 453.

176. Some examples of treaties involving the Antilles: (a) the Treaty for the Prohibition of Nuclear Weapons in Latin America (Trb. 1971 No. 200), to which the Kingdom became party on behalf of the Antilles; (b) the Agreement of 4 June 1975 between the Kingdom of the Netherlands and the Kingdom of Belgium concerning cultural relations between the Netherlands Antilles and Belgium (Trb. 1975 No. 64); (c) the Agreement between the Government of the Netherlands Antilles acting on behalf of the Kingdom of the Netherlands and the Pan-American Sanitary Bureau concerning the XIIth Inter-American Meeting at the Ministerial Level, on Foot-and-Mouth Disease and Zoonosis Control (Willemstad, Washington, 26 February and 8 March 1979, Trb. 1979 No. 83).

177. The permanent figures in the consultations are the Plenipotentiary Ministers of the two countries in The Hague and the Minister (Ministry) for Foreign Affairs. The Plenipotentiary Minister notifies the Ministry of the views of his country; the Ministry, having consulted any other Ministries involved, passes on these views and those of the Netherlands to the other State(s) involved in the negotiations. The Ministry then informs the Plenipotentiary Minister of the reaction of the other State(s) and he ascertains the opinion of his Government. This procedure is repeated, several times if necessary, until such time as agreement is reached or it is apparent that this is impossible.

178. This is what happened at, e.g., the Third UN Conference on the Law of the Sea, the UN Conference on the Succession of States with regard to Treaties and the UN Conference on the Succession of States with regard to State Property, Archives and Debts.

179. An example of a bilateral treaty of this kind was the Boundary Treaty of 31 March 1978 with Venezuela (Trb. 1978 No. 61). An example of a multilateral treaty of this kind was the Convention for the protection and development of the marine environment of the wider Caribbean region (Cartagena de Indias, 24 March 1983, Trb. 1983 No. 152). Another example is the independent action of the Antilles and Aruba in the field of aviation.

180. See, e.g., the Exchange of letters with the United States of America, 26 July 1979, concerning weather forecasting in the Caribbean area (Trb. 1979 No. 139); Memorandum of Arrangement, 26 July and 20 August, 1979, implementing Art. 6 of the Exchange of letters with the USA concerning weather forecasting in the Caribbean area (Trb. 1979 No. 153).

181. See, eg., (a) the Agreement of 8 January 1977 with Venezuela concerning cultural relations between the Netherlands Antilles and Venezuela (Trb. 1977 No. 30); (b) the Boundary Treaty between the Kingdom of the Netherlands and the Republic of Venezuela, 31 March 1978 (Trb. 1978 No. 61); (c) the Agreement between the Kingdom of the Netherlands and the Republic of Suriname on Friendship and Co-operation, 27 November 1978 (Trb. 1979 No. 6).

182. The text of Art. 41 reads as follows: ‘1. The Netherlands, the Netherlands Antilles and Aruba shall manage their own affairs independently. 2. The interests of the Kingdom shall be a responsibility of the countries’.

183. See Trb. 1977 No. 30, section J.

184. Trb. 1979 No. 6.

185. Nevertheless attempts are made to include this stipulation, since it can form a good basis from which to include the more essential proviso that the Netherlands, the Antilles and Aruba may denounce the treaty separately.

186. See, e.g., Art. 22 of the Extradition Treaty between the Kingdom of the Netherlands and the United States of America, The Hague, 24 June 1980; Trb. 1980 No. 111.

187. See, e.g., (a) Art. 29 of the Convention between the Kingdom of the Netherlands and the Democratic Socialist Republic of Sri Lanka for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital (Colombo, 17 November 1982, Trb. 1982 No. 191); (b) Art. 8 of the Exchange of Notes between Spain and the Netherlands constituting an agreement relating to the granting of authorization to permit amateur operators of either country to operate their stations in the other countries; (Trb. 1983 No. 104).

188. See also the treaties mentioned in n. 187 supra.

189. A clause which is still usable can be found in Art. X of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958, Trb. 1958 No. 145).

190. For example in connection with Art. III of the Convention on the International Regulations for Preventing Collisions at Sea (London, 20 October 1972, Trb. 1974 No. 51, p. 127; Trb. 1976 No. 126, p. 3 and Trb. 1980 No. 102, p. 3).

191. This clause is included in, e.g., Art. 20 of the Convention on the transfer of sentenced persons (Strasbourg, 21 March 1983, Trb. 1983 No. 774).

192. See, e.g., the declarations lodged on the signing of the Agreement establishing the European Molecular Biology Conference and the Agreement establishing the European Molecular Biology Laboratory (Geneva, 13 February 1969, Trb. 1969 No. 102, p. 18 and Geneva, 10 May 1973, Trb. 1973 No. 162, p. 26). The wording dates from before 1 January 1986, when Aruba gained the status of autonomous country within the Kingdom.

193. See, e.g., the declaration lodged on the acceptance by signature on behalf of the Kingdom (acceptance for the Netherlands) of the Protocol extending the Long-Term Arrangement regarding International Trade in Cotton textiles of 15 June 1970 Trb. 1970 No. 179, p. 3.

194. See Trb. 1966 No. 192, section E; at that time Suriname was still part of the Kingdom.

195. See Trb. 1970 No. 1, p. 3 and Trb. 1974 No. 168, p. 2.

196. See ILC Yearbook 1959 Vol. 2 p. 48, Art. 26; p. 74, para. 126; ILC Yearbook 1962 Vol. 1 pp. 57–71, 193–195, 240–243; ILC Yearbook 1964 Vol. 2 pp. 12–15, Art. 58; ILC Yearbook 1964 Vol. 1 pp. 46, 53, 167–169, 233–235; ILC Yearbook 1965 Vol. 1 pp. 23–32, 249–252, 280–281; ILC Yearbook 1966 Vol. 2 pp. 64–66; ILC Yearbook 1966 Vol. 1 Part 2, pp. 46–48, paras. 85–101, pp. 48–54, paras. 1–73; p. 170, paras. 11–13; ILC Yearbook 1966 Vol. 2 pp. 180, 213–214; United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, A/CONF.39/ll/Add.2, p. 147; Summary Records, First Session, A/CONF.39/11, pp. 162–164, 428–429; Summary Records, Second Session, A/CONF.39/11/Add.1, p. 55.

197. See, e.g., Sinclair, op. cit. n.151, p. 60.

198. Ibid. p. 61.

199. As of 31 December 1987.

200. A record is also made when the Kingdom of the Netherlands deposits a document concerning a treaty for which it is acting as depositary.