1. Swedish practice with regard to persons who claim to be political refugees (a great number of whom are members of the American forces who deserted because they disagreed with the war in South Viet-Nam) appears to be very similar to Dutch practice. The Swedish authorities, too, prefer to dispense with an investigation of the alleged status of refugee of the persons concerned. In those cases asylum is generally granted in the sense that such aliens are admitted though not as refugees. They are granted an “ordinary” residence permit which offers less far-reaching protection than “admission as a refugee”. For Swedish practice see Rousseau, Ch. “Etats Unis et Suède”, 73 R.G.D.I.P. (1969) p. 1126Google Scholar; for the Netherlands see Memorandum of Reply regarding the Note concerning the Aliens Act, Bijl.Hand.II 1968/69 - 9666 No. 5 p. 2 sub. 7 and the record of the relevant debates in Parliament, Hand.II 1971/72 p. 639; Hand.I 1971/72 p. p. 283. However, of late the Swedish Government appears to be pursuing a less generous policy with regard to American deserters; see Rousseau, Ch., “Etats Unis et Suède”, inter lia 74 R.G.D.I.P. (1970) p. 723Google Scholar; 75 R.G.D.I.P. (1971) p. 1137.

2. Pursuant to Art. 11 in conjunction with Art. 1 of the Aliens Act (Stb. 1965 No. 40) the Minister of Justice is responsible for the policy with regard to aliens.

3. These conditions were: (a) Waver had to have gainful employment; (b) he was to take up residence outside the municipality of Amsterdam; (c) a further investigation by the Minister should not prove that Waver had misinformed the Assistant Secretary-General of Justice; (d) upon investigation the Minister of Justice had to find that the Agreement between Parties to the North Atlantic Treaty regarding the Status of their Forces (SOFA) of 19 June 1951 did not constitute a hindrance to granting a residence permit; (e) Waver was not to make public the fact that a residence permit was to be granted. See decision of the Court of 14 June 1971, N.J. 1971 No. 273 p. 797.

4. See the decision of the Minister of Justice of 2 July 1971, Afdeling Vreemdelingenzaken Grens-bewaking [Aliens and Border Control Division] No. 59/425593-A. See also the account of the discussion between the Minister and State Secretary of Justice and the Parliamentary Standing Committee for Justice of 10 June 1971. Bijl.Hand.II 1971 - 11370 No. 1 p. 2.

5. By virtue of Art. 52 Aliens Decree (Stb. 1966 No. 387), being an implementation of the Aliens Act.

6. The legal basis for the appeal is found in Art. 29 Aliens Act (see on this point infra p. 184). The stay of the expulsion is regulated in Art. 32 of the same Act (see on this point infra n. 192.

7. This, oral, application is mentioned in the preamble to the Minister of Justice's decision of 2 July 1971, see supra n. 4. It is probable that the Minister of Justice's statement that the acquisition of a residence permit (which had been refused to Waver) would not prejudice in any way the precedence of the Status of Forces Agreement over municipal law prompted Waver to apply for “admission as a refugee”. SOFA's precedence might be prejudiced by the Geneva Refugee Convention of 1951. If the latter Convention applied, the Government could plead that the non-fulfilment of their obligations under SOFA which contravened the Refugee Convention was due to circumstances amounting to a type of ‘international force majeur’. See the account of the discussion between the Minister and State Secretary of Justice and the Parliamentary Standing Committee for Justice on 10 June 1971 (supra n. 4).

8. See the decision by the President of the Hague District Court of 14 June 1971 –statement of facts para. 6 – and the State Secretary of Justice's reply to written questions, Aanh.Hand.II 1971 No. 104 p. 209 sub 5.

9. With reference to Art. VII(2)(a) and 5(a) in conjunction with Art. I(1)(e) SOFA. Text of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, of 19 June 1951, in 199 U.N.T.S. p. 67; also in Trb. 1951 No. 114. For the distinction between handing over and extradition, see infra n. 52.

10. Act for the approval and implementation of the NATO Status of Forces Agreement, Stb. 1953 No. 438, Art. 3. See infra p. 155.

11. Decision of 10 June 1971, text in annex to Aanh.Hand.II 1971 No. 104 p. 210–212. The implementation Act charges the Minister of Justice to make the relevant decisions. However, by his decision of 21 April 1970 No. 331/070, the Minister delegated this task to the State Secretary of Justice. For the Opinion of the Instruction Judge, see infra p. 158–169 passim.

12. A Government spokesman had already stated that the Government did not intend to prevent Waver from instituting summary proceedings. As a consequence of Art. 3(3) Implementation Act (see infra p. 155) the Court had to give its decision within four days. After that handing over could not wait upon the outcome of annulment proceedings or until an appeal had been heard nor could it be postponed until the Court had given its decision with regard to the applicability of the Refugee Convention, State Secretary of Justice in reply to questions put during the discussion of 10 June 1971, with the Parliamentary Standing Committee for Justice (supra n. 4).

13. Decision of 14 June 1971, N.J. 1971 No. 273; and 3 N.Y.I.L. (1972) p. 292.

14. The State Secretary of Justice's reply to written questions, Aanh.Hand.II 1971 No. 212 p. 427.

15. The Minister of Justice's decision of 2 July 1971, see supra n. 4. (Insofar as the refusal to admit Waver as a refugee is concerned, also cited Stb. 1972 No. 427 p. 6). In view of the Court's order not to hand Waver over the State was obliged to grant him a residence permit.

16. Art. 29(1)(a) Aliens Act.

17. The State Secretary of Justice's decision of 30 August 1971, Afdeling Vreemdelingenzaken Grensbewaking No. 59/415593-A in Stb. 1972 No. 427 p. 5.

18. Art. 34(1) Aliens Act (see infra p. 184, n. 193). Waver's Counsel had asked for postponement of the Ministerial decision in review (supra) until the expiration of one year's uninterrupted sojourn by Waver in the Netherlands (Waver had returned from Sweden on 29 August 1970), this being a requirement for a petition to the Crown when the Ministerial decision had been in accordance with the Opinion of the Aliens Advisory Commission. See Stb. 1972 No. 427 p. 7, also Hand.I 1971/72 p. 281.

20. Stb. 1972 No. 427. In accordance with the law the relevant documents (cf. n. 193) were also published in this Stb.

21. Stc. 12 January 1972 No. 8 p. 1; also in Aanh.Hand.II 1971/72 No. 801 p. 1613.

22. In his decision of 14 June 1971, the President of the Hague District Court had already suggested that the Government submit to the American authorities that they withdraw their request to hand over Waver. He did so inter alia because in his opinion there existed some doubt concerning the correct interpretation of some of SOFA's provisions and because Art. XVI of this Agreement provides that differences regarding the interpretation or application of the Agreement are to be settled by negotiation. Although originally the Minister of Justice did not think he had sufficient grounds for making such a submission (Trouw, 8 October 1971) he did so at a later stage. With reference to this he stated in the Second Chamber of Parliament that the “regular consultations”leading to the request had not taken place within the framework of Art. XVI SOFA. “This Article does not apply,” the Minister said, “since there is no difference relating to the interpretation or application of the Agreement between the Dutch and American Governments.” Hand.II 1972 p. 464 (19 October 1972).

23. According to several newspaper reports, inter alia De Volkskrant of 12 January 1972, a spokesman of the American Embassy had stated that the Dutch submission had mentioned three reasons for the withdrawal of the American request. However, neither this spokesman nor the Dutch Minister of Justice saw fit to enumerate these reasons, the latter not even in his reply to written questions from Members of the Second Chamber (Aanh.Hand.II 1971/72 No. 801 p. 1613). Thereupon it was rumoured that the Netherlands, in return for a withdrawal of the American request, had consented to withhold any recognition as a refugee (NRC/Handelsblad, 12 January 1972: “De zaak Waver” [The Waver case]).

24. Cf. the Minister of Justice's statement in another context in the Second Chamber: “…Both the Dutch and the American Government are of the opinion that the NATO Status of Forces Agreement applies in the Waver case.” Hand.II 1972 p. 464.

25. Hand.I 1971/72 p. 283.

26. 34 U.N.T.S. p. 243.

27. See Preamble to SOFA.

28. Cf. Lazareff, , Status of Military Forces under current international law, (Leyden, 1971) p. 59Google Scholar. [The bulk of this book is an English translation of the earlier French version entitled Le statut des Forces de l'OTAN et son application en France (Paris, 1964)].Google Scholar

29. The Working Group was set up at the request of the American representative during the meeting of the Deputies of NATO Council of 15 January 1951 in London (doc. DR(51)3). The group met for the first time on 29 January 1951 and concluded its negotiations concerning the text on 31 May 1951. On 19 June 1951, the Agreement was signed. Ratification by the Netherlands took place on 18 November 1953; a month later it became enforceable in the Netherlands. The “travaux préparatoires” concerning SOFA were afterwards published by Father Snee, Joseph M. under the title NATO agreements on status: travaux préparatoires vol. 54 (1961)Google Scholar in the series “International Law Studies of the US Naval War College, Newport, Rhode Island” (Washington, 1966).Google Scholar

30. Lazareff makes some comments on this point, op. cit. p. 235, 266, 444.

31. See Memorandum of the NATO Council, doc. CM(53)78 of 9 June 1953, cited by Lazareff op.cit. p. 238.

32. See Records of Council Meeting, doc. CR(53)30. In his reply to the present author's request for information concerning the further activities and possible results of this Working Group, the legal advisor of SHAPE could state only that the Working Group had had a few sessions, which had not produced any material results. It had never reported to the NATO Council and the minutes of its meetings were confidential.

33. Cf. Lazareff, op.cit. p. 5, p. 81; Snee, J.M. and Pye, A., Status of Forces Agreements and Crimina Jurisdiction (1957) p. 13Google Scholar. According to “Operation of Art. VII, NATO Status of Forces Treaty, hearings before a Subcommittee of the Committee on Armed Services, United States Senate, 84th Cong., 1st Session, to review the operation of Art. VII of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces(1955) p. 20, the Netherlands is one of those States which, whenever they are not themselves the receiving State, nevertheless enforce SOFA with respect to forces on leave or deserters in their territory. See: Rouse, Joseph H. and Baldwin, Gordon B., “The exercise of criminal jurisdiction under the NATO Status of Forces Agreement”, 51 A.J.I.L. (1957) at p. 35 n. 36Google Scholar. Dutch practice is also described by Kalshoven, F. in Recueils de la Société Internationale de droit pénal militaire et de droit de la guerre IV, vol. 2: Extradition pour délits militaires (1969) p. 260 et seqGoogle Scholar. See further the Minister of Justice's reply to written questions from Parliament (28 March 1972, Aanh.Hand. I 1971/72 No. 109 p. 225 and No. 168 p. 343).

34. Possibly on the analogy of Art. III(4) SOFA, after notification of the presence of these deserters by the sending State.

35. Extradition for military (non-political) offences is possible under the Benelux Treaty concerning extradition and judicial assistance in criminal matters (Art. 3(2), see Trb. 1964 No. 108). Extradition for military offences which are also offences under criminal law: see the European Convention on Extradition (Trb. 1965 No. 9)(Art. 4). Art. 11(4) of the Dutch Extradition Act (Stb. 1967 No. 139 coincides with the European Convention on Extradition.

36. According to some writers it may be inferred from the provisions of SOFA that this Agreement refers in particular to the land armed services and is less enforceable in regard to sea armed services. See Voelckel, M., “Application aux forces navales de la Convention de Londres du 19 Juin 1951”, 8 A.F.D.I. (1962) pp. 744–751.Google Scholar

37. See the definition of “receiving State” in Art. I(1)(e) SOFA, infra p. 161.

38. See infra n. 40 for some examples.

39. See Summary Records of the Working Group, 23 April 1951, doc. MS-R(51)13, in Snee op.cit. p. 162.

40. See Snee op.cit. p. 464 (doc. MS-D(51)20) for the American amendment, proposed on 9 April 1951. According to the Summary Records concerning the meeting of the Working Group of 23 April 1951, doc. MS-R(51)13, cited in Snee op.cit., pp. 162 et seq., the United States gave as their motive for the proposed amendment that sometimes it might be difficult to determine whether forces are present in one of the Contracting States “in connection with the operation of the North Atlantic Treaty”. When at an earlier opportunity, amendments could be proposed or comments made (on 10 April 1951, doc. MS-D(51)21, cited in Snee op.cit. p. 469), the Netherlands appeared to be more or less of the same opinion as the United States. However, the Netherlands proposed that in case of differences on this point, the procedure of negotiation as provided for by Art. XVI in connection with differences relating to the interpretation and application of the Agreement be followd (see infra p. 154). During the negotiations concerning the SOFA text, the United States, the most important sending State and, moreover, traditionally an ardent advocate of the competence of the Law of the Flag in the field of jurisdiction over forces abraod (cf. Kalshoven, F., “Criminal Jurisdiction over Military Persons in the territory of a friendly Power”, 5 N.T.I.R. (1958) pp. 165–194Google Scholar; Re, E., “NATO Status of Forces Agreement and International Law”, 50 North Western Un.L.R. (1955) at p. 356 et seq.)Google Scholar, very reluctantly granted some concessions with regard to the exercise of criminal jurisdiction over visiting foreign forces to her partners who advocated the principle of territorial sovereignty. The United States considered the arrangement of Art. VII SOFA a barely acceptable minimum and, availing herself of the opportunity provided by the Preamble, fully intended to expand this minimum as much as possible by concluding (derogatory) bilateral agreements (see Lazareff op. cit. p. 74 [quoting statements by representatives of the United States Department of Defense], and p. 92). Bilateral agreements granting the American authorities a larger sphere of criminal jurisdiction over their forces than did Art. VII SOFA, are inter alia the Agreements with the Netherlands of 13 August 1954 (251 U.N.T.S. p. 91, and Trb. 1954 No. 120), with Greece (similar to the one concluded with the Netherlands, T.I.A.S. 3649) and with Turkey (233 U.N.T.S. p. 189). In this connection we may also mention the bilateral agreements concluded by the United States regulating the status of all members of her forces, irrespective of whether they are in foreign territories “in connection with their official duties” or not. Examples are the exchange of notes with Canada, 28 and 30 April 1952 (235 U.N.T.S. p. 269) and the administrative Agreement with Japan, 28 February 1952 (T.I.A.S. 2492).

41. Cf. Lazareff op.cit. p. 80; Rouse and Baldwin op.cit. p. 35. In actual practice, combined manoeuvres outside the NATO framework of two or three Contracting Parties do occur. An example is the training voyage planned forJuly 1973 of a combined Anglo-Dutch force which according to the Dutch Minister for Foreign Affairs is not a NATO affair (Debate on the draft budget for Foreign Affairs in Parliament, 21 February 1973, Hand.II 1972/73 p. 628). In view of the above interpretation of “official duties”, the Belgian objection to the wording of Art. I SOFA raised during the discussion in the Working Group lacked a sound basis. Belgium wanted – and this evidently entirely superfluously – to provide for a possible exclusion from SOFA of foreign forces (of Member States) whose presence in her territory was wholly unconnected with NATO (Belgium had Dutch forces in mind which often hold manoeuvres in Belgian territory). However this may be, the Belgian objection was removed by the introduction of an escape clause into Art. I(1)(a) reading: “… provided that the two Contracting Parties concerned may agree that certain individuals, units or formations shall not be regarded as constituting or included in a “force” for the purpose of the present Agreement.” The addition of this escape clause (precisely with regard to personnel on “NATO duty”), simultaneously complied with an American request that military personnel assigned to a diplomatic mission be excluded from SOFA, because they enjoyed diplomatic privileges and immunities. See doc. DR(51)41. Snee, op.cit. p. 209.

42. Doc. MS-R(51)13, sub 10, in Snee op.cit. p. 164. See also Rouse and Baldwin op cit. p. 35 and Lazareff op.cit. p. 80. The latter offers the following reason for applying SOFA to personnel on leave in the receiving State: “… indeed their presence in the territory of the receiving State is due to execution of their official duties…”

43. See, however, supra p. 149 on the voluntary enforcement of SOFA.

44. However, it seems hardly plausible for deserters to be considered members of their “force” indefinitely. Therefore, it appears probable that, when his crime has become unpunishable by virtue of the statute of limitation, the deserter ceases to be a member of the “force”. The precise regulations relating to deserters may be found in the various national rules of military law.

45. See supra n. 43.

46. Art. VII(1)(a) and (b) SOFA. The internal legislation of a State regulates the categories of persons subject to military law. For the United States this is Art. 2 Uniform Code of Military Justice (10 U.S.C. 801 et seq.) the content of which, is described by Rouse and Baldwin op.cit. p. 33. The categories subject to military law are usually rather limited, although as a rule some civilian groups are included. See on this point Draper, G., Civilians and the NA TO Status of Forces Agreement (Leyden, 1966).Google Scholar

47. Art. VII(3) SOFA.

48. Art. VII(2)(a) and (b) SOFA.

49. Art. VII(10)(a). The sending State may be granted wider powers by special arrangements, Art. VII(10)(b).The Dutch Government affirmed that they would only consent to such special arrangements if they were necessary (Bijl.Hand.II 1952/53 - 2881 No. 6 p. 4). As far as we know no such arrangements have been made so far, although for visiting naval forces such arrangements are common.

50. Art. VII(5).

51. Though explicitly adopted by the Working Group, the restriction that the receiving State is only upon request obliged to assist in the location and arrest of suspects and in handing them over is not apparent from the text of Art. VII(5). In reply to a relevant question the Working Group stated that there was nothing to prevent the receiving State, having been notified by the sending State of the presence of deserters in its territory though not explicitly asked for assistance, from locating, arresting, and handing them over on its own initiative. The obligation to do so ohly arises out of a request from the sending State. See Lazareff, op.cit. pp. 117–118 (quotation from doc. MS-R(51)13, add. to para 18[28] Snee, op.cit. p. 461 (doc. MS-D(51)18) p. 167 (doc. MS-R (51)13 and doc. MS-R(51) 14).

52. The term “handing over” appears to be used exclusively within a, generally restricted, group of States which are closely allied, or within some context of co-operation, when such States want to avoid “extradition”, e.g. in the Red Cross Conventions. The term denotes a procedure which carries with it fewer formalities and is subject to less stringent conditions than extradition. Cf. François, J., Grondlijnen van het Volkenrecht (3rd ed., Zwolle, 1967) pp. 552, 557Google Scholar, where he discusses the exchange of German war criminals between the Allies after World War II. However, Francois uses the terms “handing over” and “extradition” indiscriminately. Cf. further Castel, J., International law chiefly as interpreted and applied in Canada (Toronto, 1965) p. 520CrossRefGoogle Scholar where the author discusses “rendition” which he describes as a kind of informal intra-Commonwealth extradition, which is very similar to the handing over procedure discussed here, because in both cases the conditions to be fulfilled for extradition do not apply. In reply to written questions from a Member of the First Chamber of Parliament, the Dutch State Secretary of Justice stated that extradition and handing over are two distinct legal acts and as such are subject to separate rules. He referred to the records of the Parliamentary debates regarding the Implementation Act (Bijl. Hand.II 1952/53 - 2881 No. 6 p. 2) in which the Government stated “… the use in the Act of the term “handing over” can be explained from the fact that the nature of the assistance to be rendered under this Act by the Dutch authorities decidedly differs from the meaning usually given to the term extradition.… The handing over referred to in this Agreement will generally take place in connection with offences committed within the Realm and for the purpose of enabling the foreign competent authorities to exercise jurisdiction over their military forces, which they possess by their extraterritorial rights…” The State Secretary then observed that “a further distinction between extradition on the one hand and handing over within the meaning of the NATO Status of Forces Agreement on the other, lies in the fact that extradition may take place for purposes both of prosecution and of execution of a sentence or a penal measure …, whereas handing over according to SOFA can only be effected in connection with prosecution. It follows from the above that the NATO Status of Forces Agreement does not contain provisions which refer to, or can be interpreted in such a way as to refer to, the extradition of (former) military personnel…” Aanh.Hand.I 1971 No. 25 p. 54 (29 June 1971). The conditions attached to extradition include the principle of double criminality, the principle of speciality and the requirement that the punishable act giving rise to the extradition request must be of a serious nature (generally to be determined by the measure of punishment to be inflicted).

53. See, however, the Dutch report by Kalshoven to the fourth International Conference of the Société Internationale de droit pénal militaire et de droit de la guerre, which discusses handing over, op.cit. at n. 33 supra, p. 237 et seq.

54. See infra p. 165.

55. Art. 33 of the 1951 Convention relating to the Status of Refugees. See on this point infra p. 176.

56. Stb. 1953 No. 438. Though not the usual practice, it does occur that an Act of Approval relating to an international agreement also contains implementing provisions.

57. This in contrast with the far from clear wording of Art. VII(5) SOFA, see supra n. 51.

58. A proper examination of Waver's plea of a status of refugee took place only after the imminent handing over under SOFA had been averted (for the time being). The various aspects of this plea will be discussed separately below. See infra p. 169 et seq.

59. The text of Waver's statement is reproduced in the State Secretary of Justice's decision of 10 June 1971, supra n. 11.

60. See supra p. 148 and p. 155.

61. The American request to hand over Waver was made by Memorandum of 5 May 1971 (mentioned in the decision of the President of the Hague District Court of 14 June 1971, see supra n. 3) anc later repeated in a letter of 26 May 1971 (mentioned in the decision of the State Secretary of Justice of 10 June 1971, see supra n. 11). In Waver's opinion, the reference in the above documents to the fact that he had been declared a deserter and that his case was known to the United States military court, indicated that he had been tried and sentenced.

62. In a letter of 7 June 1971, mentioned in the decision of the State Secretary of Justice of 10 June 1971, see supra n. 11.

62a. However, see supra n. 44.

63. See the decision of the President of the Hague District Court of 14 June 1971 (see supra n. 3). For an account of the summary proceedings, see De Volkskrant, 12 June 1971 p. 1; Dagblad Trouw, 14 June 1971 and Nieuwe Rotterdamsche Courant/Handelsblad, 12 June 1971. Professor Kapteyn, P., the expert, gave a short expose of his propositions in his Article “Wonder-lijke stellingen bij de zaak Waver?” [Odd contentions in the Waver case?], NRC/Handelsblad, 3 August 1971 p. 7.Google Scholar

64. The State Secretary of Justice's decision of 10 June 1971 (see supra n. 11).

65. See his Article “Geval Waver is een storm in een glas water” [The Waver case is a storm in a teacup], NRC/Handelsblad, 24 July 1971 p. 7.

66. Cf. Dutch practice as expounded by the State Secretary of Justice in reply to written questions, 29 June 1971, Aanh.Hand.I 1971 No. 25 pp. 53–54.

67. See for Waver's statement supra p. 155.

68. The considerations of the Instruction Judge were reproduced in the decision of the State Secretary of Justice of 10 June 1971, supra n. 11.

69. Ibid. p. 211.

70. Ibid. p. 210–211. Since his relevant considerations concerned the obligation to hand over under Art. VII(5) of the Agreement rather than the definition of “force” under Art. I, they will be discussed later. See infra pp. 165, 166.

71. See supra n. 68.

72. P. Kapteyn, loc.cit. supra n. 63.

73. Art. VII(1) - (3) SOFA does not explicitly provide that the sending State may exercise criminal jurisdiction only with respect to offences committed in the territory of the receiving State. However, this may be inferred from Art. VII in conjunction with the Preamble. Lazareff too refers to the offences committed within the territory of the receiving State. See op.cit. p. 133, The Netherlands Government is apparently of the same view. The Memorandum of Reply concerning the Bill of Approval of SOFA reads: “… handing over will usually take place in connection with offences committed within the Realm …” Bijl.Hand.II 1952/53 - 2881 No. 6 p. 2, quoted in Aanh.Hand. I 1971 No. 25 p. 54.

74. Decision of 10 June 1971, see supra n. 11.

75. In reply to written questions, 10 June 1971, Aanh.Hand.II 1971 No. 104 p. 209.

76. See supra n. 68.

77. See supra p. 153.

78. The expert's (C. Rüter) argument is summarized in the decision of the President of the Hague District Court of 14 June 1971, supra n. 3.

79. NRC/Handelsblad, 24 July 1971 p. 7.

80. Lazareff op.cit. pp. 135–136.

81. See the State Secretary's reply to written questions, 29 June 1971, Aanh.Hand.I 1971 No. 25 p. 54, quoted supra n. 52.

82. If the defendant does not cede his right to appear, to pass judgment by default is not allowed in the United States, see written information from the United States Government of 7 June 1971, referred to in the State Secretary of Justice's decision of 10 June 1971, supra n. 11.

83. Kuitenbrouwer, F., “Waver in de greep van NATO-Statusverdrag” [Waver in the clutches of the NATO Status of Forces Agreement], NRC/Handelsblad, 4 June 1971Google Scholar; and “Tegenspraak in de zaak Waver?” [Contradictions in the Waver case?], NRC/Handelsblad, 11 June 1971Google Scholar; Swart, A., “Ralph Waver in juridische klem” [Ralph Waver in legal trap], De Volkskrant, 8 June 1971Google Scholar; P. Kapteyn, loc.cit., supra n. 63.

84. Cf. Bowett's wording of the aim of estoppel: “Its essential aim is to preclude a party from benefiting by his own inconsistency to the detriment of another party who has in good faith relied upon a representation of fact made by the former party,” “Estoppel before international tribunals”, 33 B.Y.I.L. (1957) pp. 176–202Google Scholar, quoted inter alia by Francois, op.cit. p. 351.

85. See supra n. 68.

86. Reply to written questions, 10 June 1971, Aanh.Hand.II 1971 No. 104 p. 209.

87. Decision of 10 June 1971, see supra n. 11. The wording employed by the State Secretary gives rise to the inference that the latter had a special form of estoppel in mind, i.e. exceptio non adimpleti contractus. This argument may be advanced in the case of entirely reciprocal contracts, such as e.g. a purchase agreement, by one party in order to escape (temporarily) an obligation, on the ground that the other party has not yet complied with its obligations. SOFA possesses characteristiques which probably exclude this argument. For instance, SOFA is not a reciprocal arrangement but rather an agreement to co-operate. Furthermore, notification as meant in Art. III(4) and handing over as meant in Art. VII(5) can hardly be regarded as equivalent. They are two separate obligations which differ as to importance and nature.

88. “General principles” are mentioned as a source of law in Art. 38(1)(c) of the Statute of the International Court of Justice.

89. Cf. McNair, , Law of Treaties (1961) p. 487Google Scholar; Akehurst, M., A Modern Introduction to International Law (1970) p. 190.Google Scholar

90. In the first official discussion between Waver and the Dutch authorities (22 October 1970, four months after his desertion, set supra), the latter had indicated that they might become in duty bound to hand him over. See account of the discussion with the Parliamentary Standing Committee for Justice, 10 June 1971, supra n. 4.

91. Indefensible on humanitarian grounds as this situation was, Waver's legal insecurity, which continued even after the American request had been received, stemmed from thenature of the procedure Waver himself had elected to follow and from the temporary character of the measure taken by the President of the Hague District Court. The State Secretary of Justice could not put an end to Waver's legal insecurity since he was not free to decide that handing over Waver was not compulsory as long as the appeal court had not decided on the nature and scope of the Dutch obligations under SOFA. State Secretary of Justice's reply to written questions, 1 July 1971, Aanh.Hand.II 1971 No. 212 p. 427.

92. See François, op.cit. p. 350; Brierly, , The Law of Nations (6th ed., Oxford, 1963) p. 167Google Scholar; Annuaire de l'Institut de Droit International, 1925, p. 558.

93. Cf. Brierly, op.cit. p. 169; Akehurst, op.cit. pp. 185–186; O'Connell, D.P., International Law (2nd ed. 1970) pp. 422, 1066Google Scholar; Schwarzenberger, G., International Law, vol. I (3rd. ed., 1957) pp. 565–571.Google Scholar

94. Among those grounds are “injustice” and the application of the rule of jus aequum through inferred acquiescence, mentioned by Ch. de Visscher, cited by Francois op.cit. p. 351 and Schwarzenberger.op.cit. p. 570 respectively. The latter argues that so-called extinctive prescription can be equated with acquiescence as applied in international law. Cf. Pinto, R., “Prescription en Droit International”, 87 Recueil des Cours (1955) pp. 391–456, at pp. 440 et seqGoogle Scholar. in particular p. 445, and Perlowski, M., Les causes d'extinction des obligations Internationales contractuelles, (Lausanne, 1928), pp. 28–35, notably at p. 31.Google Scholar

95. See supra p. 163.

96. Cf. Lazareff, op.cit. p. 116; Explanatory Memorandum to the Bill of Approval, Bijl.Hand.II 1952/53- 2881 No. 3 p. 3; and a consideration in the State Secreteray of Justice's decision of 10 June 1971 (supra n. 11).

97. Decision of 10 June 1971 (supra n. 11) p. 211 and reply to written questions, 10 June 1971, ibid. p. 209.

98. Absence without leave on the part of a member of the civilian component is likely to put an end to his contract with his employer/force and such termination entails that he is no longer subject to SOFA. See Lazareff, op.cit. p. 118.

99. See supra pp. 144–146.

100. See account of the discussion with the Parliamentary Standing Committee for Justice (supra n. 4) pp. 1, 2.

101. See e.g. Kuitenbrouwer, , NRC/Handelsblad, 11 June 1971Google Scholar; Kalshoven, , NRC/Handelsblad, 24 July 1971Google Scholar; J. v.d. Meulen, Volkskrant, 11 June 1971. Six Americans, resident in the Netherlands, explicitly asked the Minister by letter to refrain from handing Waver over on humanitarian grounds, NRC/Handelsblad, 7 June 1971. So did twenty jurists in the field of international, constitutional and penal law (letter of 6 June 1971), De Volkskrant, 8 June 1971; and twenty solicitors and barristers by cable, Het Vaderland, 4 June 1971.

102. Art. 33, infra p. 176.

103. See Swart, , De Volkskrant, 8 June 1971Google Scholar; Kuitenbrouwer, , NRC/Handelsblad, 4 and 11 June 1971Google Scholar; letter of 6 June 1971 from twenty jurists in the field of international, constitutional and penal law, De Volkskrant, 8 June 1971.

104. See doc. MS(J)R(51)5, reproduced in Snee, op.cit. p. 105.

105. Cf. Lazareff op.cit. p. 238.

106. The lack of regulations regarding political asylum appears less strange when one takes into account that, especially when NATO co-operation began, the Contracting Parties felt themselves very closely allied (the use of the word “foreign” in the definition of force laid down in Art. I SOFA was thought to be quite unsuitable in the NATO context! See Snee, op.cit. p. 123 (doc. DR (51)11 para. 2c). The notion that a Member State might persecute its nationals in its territory did not fit well with the stirring ideals and the objectives of protecting the democratic principles, individual freedom and the rule of law in their territories. Now, after 25 years, the situation has changed somewhat (consider the attitude towards Portugal, Greece). Consequently Waver's plea of being a political refugee was seriously investigated.

107. Kuitenbrouwer, , NRC/Handelsblad, 4 June 1971.Google Scholar

108. Promise in the Second Chamber, 22 April 1969, Hand.II 1968/69 p. 2670.

109. Reply to written questions, 12 September 1967, Aanh.Hand.I 1967/68 No. 42 p. 85.

110. Account of a discussion with the Parliamentary Standing Committee for Justice, 10 June 1971 (see supra n. 4) p. 2.

111. This view was taken by van Bennekom, W., see Aspecten van het Vluchtelingenrecht, (Deventer, 1972) p. 194Google Scholar. [Aspects of the law regarding refugees].

112. The adages quoted might be considered applicable solely in the case of two treaties relating to similar matters. See for an extensive discussion of the intricate problem of conflicting treaty obligations, McNair, op.cit. pp. 213 et seq.

113. However, some of the texts referred to are declarations lacking binding force, while the rest are treaties regionally, or at least not universally enforceable so that they can hardly be taken as sufficient proof that the rules they contain enjoy general recognition.

114. Unpublished opinion submitted to the Judicial Committee of the Council of State for purposes of laying before the Crown the Committee's Opinion in re Waver (see supra p. 146).

115. See e.g. Madsen, A. Grahl, The Status of Refugees in International Law, (1972) Vol. II pp. 94–98Google Scholar; Schwarzenberger, op.cit. pp. 51, 52. The latter even contends that the Advisory Opinion on Reservations to the Genocide Convention given by the International Court of Justice (I.C.J. Reports 1951, p. 23), which is often interpreted in the sense that the principles underlying this Convention (humanitarian principles) should be considered as general principles of law, should be viewed with caution. For the latter view see e.g. McNair, op.cit. p. 167.

116. See account of the discussion with the Parliamentary Standing Committee for Justice, 10 June 1971 (see supra n. 4) p. 2.

117. For Waver's plea, see supra p. 156. For the considerations of the Instruction Judge see supra n. 68.

118. The wording is identical to that of the principle of non-return as laid down in Art. 33 Refugee Convention of 1951; see infra p. 176.

119. The State Secretary of Justice's decision of 10 June 1971 (see supra n. 11).

120. See supra p. 145. In his decision of 14 June 1971, the President of the Hague District Court (see supra n. 3) had already alluded to a possible request for admission as a refugee.

121. 185 U.N.T.S. p. 137; and Trb. 1951 No. 131. The Convention was ratified by the Netherlands on 3 May 1956 and entered into force on 1 August 1956.

122. The Protocol of 31 January 1967 (606 U.N.T.S. p. 267 and Trb. 1967 No. 76) deleted this date line. The Protocol entered into force in the Netherlands on 29 November 1968. As early as the conclusion of the Refugee Convention in 1951, the Conference of Plenipotentiaries expressed the hope, in the Final Act, Recommendation E, that the Refugee Convention would serve as example with effects beyond its contractual scope and that it would cause all States to treat refugees as being within the Convention whether they are so or not.

123. Cf. Grahl Madsen, op.cit. vol. I p. 173 et seq. In support of his view the author mentions a number of decisions of German courts, all of which, with one exception, proceed on the assumption that the fear should be externalized. See also Pompe, C., “De Conventie van 28 juli 1951 en de Internationale bescherming van vluchtelingen” [The Convention of 28.July 1951 and the international protection of refugees], Rechtsgeleerd Magazijn Themis (1956) pp. 425–491 at p. 436Google Scholar; Weis, P., “Le concept de refugié en droit international”, 87 Clunet (1960) pp. 929–1001 at p. 970Google Scholar, also published separately as UN doc. HCR/INF/49, Geneva, 1961; van Panhuys, H.F., “Vereisten voor het verkrijgen van de status van vluchteling” [Requirements for obtaining refugee status], Aspecten van Vluchtelingenrecht pp. 2–26 at p. 11.Google Scholar

124. With reference to these countries of origin Pompe observes that “in spite of the general terms of para. A(2), the chief aim of the drafters of the Convention was to create an instrument for the protection of persons who had escaped from, or did not want to return to, certain countries in which at the time of the conclusion of the Convention, in the common opinion of the Contracting Parties, persecution was rampant” (author's translation), op.cit. p. 441. Obviously he had the communist regimes in mind which after World War II had acquired power in Eastern Europe. This interpretation of the purport of the Contracting Parties may also have led to the extreme point of view, advanced by some, to the effect that persons originating from a democratic constitutional State cannot qualify for the status of refugee. Such a State could not possibly have a persecuting regime; on the contrary, those who disagree with government policy in a democratic State, are always free to oppose it. See Duynstee, F., comments in Aspecten van Vluchtelingenrecht, pp. 65–72 at p. 65 and p. 191Google Scholar. The latter point of view is generally repudiated, however. See e.g. Van Panhuys, op.cit. p. 17, and A. Swart who points out that in the last twenty years the political situation in Europe has undergone a profound change, comments in Aspecten van Vluchtelingenrecht, pp. 27–40, at p. 28, 31. See also Zarkovacki et al. v Bundes Republik Deutschland, as quoted in part by Grahl Madsen, op.cit. vol. I p. 235.

125. Grahl Madsen enumerates a great number of individual cases of refugeehood from judicial decisions, op.cit. vol. I p. 181 et seq.

126. Evidently their “own fault” does not refer to offences which are not politically motivated or cannot be justified by self-defence.

127. See supra n. 122.

128. UN ECOSOC doc. E/REF/65 of 8 May 1946. The relevant text is reproduced in Stb. 1972 No. 427 p. 13.

129. See Weis, op.cit, p. 970; Grahl Madsen, op.cit. vol. I pp. 86, 193.

130. See Weis, op.cit. p. 970; Grahl Madsen, op.cit. vol. I pp. 86, 193, 214. A member of the Ad Hoc Committee which drafted the Refugee Convention argued that a threat to physical freedom was a relative concept which might also include less serious threats which should under no circumstances be regarded as persecution. UN doc. E/AC.32/SR.20, p. 14.

131. A well-known representative of the restrictive school of thought is Zink, K., Das Asylrecht in der Bundesrepublik Deutschland nach dem Abkommen vom 28. Juli 1951 über die Rechtstellung der Flüchtlinge unter besonderer Berücksichtigung der Rechtsprechung der Verwaltungsgerichte (1962).Google Scholar

132. Well-known representatives of the liberal school are P. Weis, supra n. 123 and Vernant, J., The Refugee in the postwar world (1953).Google Scholar

133. Op.cit. vol. I para. 83 pp. 194–197. Cf. Swart, in Aspecten van Vluchtelingenrecht p. 30.Google Scholar

134. Although Grahl Madsen concedes that the legal practice of only one or two Parties to a multilateral agreement does not constitute a sufficient basis for the interpretation of that agreement (op.cit. vol. I p. 213), he proceeds to refer, for the purpose of interpretation of the Refugee Convention, to national decisions, mostly of German and French courts, which, moreover, are not always consistent (see, e.g., op.cit. vol. I pp. 231 et seq.).

135. Op.cit. vol. I pp. 214–216, also mentioning a few examples of those “other” measures. According to Grahl Madsen, imprisonment of not more than three months may be considered as imprisonment for a short time.

136. Cf. Grahl Madsen, op.cit. vol. I p. 192; Van, Panhuys and Swart, in Aspecten van Vluchtelingenrecht, p. 13 and 32Google Scholar respectively. Criminal prosecution in order to be construed as persecution probably includes any prosecution arising from a refusal to participate in either war crimes, crimes against the peace or against humanity. This is generally deduced from the fact that Art. 1(F) of the Refugee Convention states that the protection of the Convention shall be withheld from any person with respect to whom there are serious reasons for considering that he has committed such crimes. Cf. Van Panhuys, op.cit. p. 21.

137. Cf. Aspecten van Vluchtelingenrecht, p. 190 (discussion);Grahl Madsen op.cit. vol. I p. 189.

138. Since most of our remarks in this connection hold true both for religion and political opinion, the following discussion will be directed to the latter as political opinion was an issue in the Waver case.

139. This point of view follows from Art. 14 of the Universal Declaration of Human Rights. The provision refers to persecution on the one hand and “prosecution genuinely arising from non-political crimes“ on the other hand which seems to imply that persecution also includes prosecution for political crimes. See also Grahl Madsen, op.cit. vol. I pp. 192–249; Swart, in Aspecten van Vluchtelingenrecht, p. 32.Google Scholar

140. See Grahl Madsen, op.cit. vol. I pp. 220, 248.

141. Ibid. pp. 248–249.

141a. Ibid. pp. 220, 232, 249.

142. Cf. Grahl Madsen, ibid. pp. 223, 250; Van, Panhuys, Swart, and others in Aspecten van Vluchtelingenrecht, p. 186.Google Scholar

143. Grahl Madsen, op.cit. vol. I pp. 251, 253.

144. Weis observes that in such cases the determination of Convention eligibility acquires a constitutive instead of the declaratory character it properly should have; op.cit. p. 944.

145. According to para. 2 the sole exception to the rule of para. 1 relates to a refugee, “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

146. This is the interpretation of the term “non-return” in the narrow technical sense, whereas usually the whole of Art. 33 Refugee Convention is referred to as the principle of “non-return.”

147. The Dutch representative to the Conference stated that “The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory” (A/Conf.2/SR.35 p. 21). In relation to frontier crossings in large groups the view is probably still the same; cf. Fonteijn, A. and Fraay, H., “Welke beleidscriteria hanteert de Nederlandse overheid ten opzichte van het vluchtelingenvraagstuk?” [What are the norms of the Dutch policy regarding the refugee problem?], Aspecten van Vluchtelingenrecht, pp. 147–178 at pp. 150–151Google Scholar. However, the policy is much more flexible in respect of cases involving a single individual. This may be inferred from the regulation laid down in Art. 6(2) Aliens Act, see infra p. 177. As early as 1956, long before the Aliens Act was enacted, the application was advocated of the principle of non-return vis-à-vis refugees who were caught while crossing the frontier: “It appears unreasonable to exclude such action by frontier police [i.e. turning back refugees at the frontier] from the prohibition of sending back, and thus turn back refugees who were so unfortunate as to be caught by the police…” (author's translation), Pompe, op.cit. p. 450.

148. UN doc. A/Conf.2/SR 16 p. 6 and SR 35 p. 21. See also Vierdag, E., “Wat is de inhoud van het begrip non-refoulement in het Nederlandse recht?” [What is the content of the principle of non-return in Dutch law?], Aspecten van Vluchtelingenrecht, pp. 73–93, at p. 77Google Scholar; Weis, P., “The UN Declaration on Territorial Asylum”, 7 Can.Y.I.L. (1969) pp. 92–149 at pp. 123–124.Google Scholar

149. See in this connection supra p. 167 et seq.

150. This is also the policy of the Netherlands, see infra p. 182.

151. G.A. Res. 2312 (XXII) of 14 December 1967. The Minister of Justice stated that when deciding on an application for asylum or status of refugee, it is a matter of indifference to the Netherlands whether the deeper feelings of a friendly or perhaps not so friendly power are hurt when the application is granted. Hand.I 1971/72 p. 283.

152. As regards parliamentary documents concerning the Dutch aliens legislation, reference will where possible be made to the Edition Schuurman & Jordens No. 86 (2nd ed., Zwolle, 1972).

153. This although the Explanatory Memorandum to the Aliens Bill, Sch. & J. pp. 13–14 states “…restatement in this Bill of the obligations arising for the Netherlands from the Refugee Convention is not necessary.…” In particular, translation into Dutch municipal law of provisions of agreements which according to their terms can be binding on everyone is superfluous since by virtue of Art. 65 of the Netherlands Constitution such self-executing provisions have such binding force upon publication. According to the Explanatory Note attached to the Aliens Decree (Sch. & J. p. 187) Art. 32(1) of the Refugee Convention is such a self-executing provision. There is good reason to believe that most of the other provisions of Arts. 32 and 33 are of the same character. See on this point Kapteyn, P., “Welke rechten dienen door een Staat volgens het internationale recht te worden toegekend aan een vreemdeling die asiel zoekt in die Staat?” [What rights should a State, according to international law, grant to aliens seeking asylum?], Aspecten van Vluchtelingenrecht, pp. 97–116 at pp. 114–116Google Scholar. Yet, for the sake of greater convenience self-executing provisions of the Refugee Convention were incorporated in municipal legislation. Explanatory Note attached to the Aliens Decree, Sch. & J. p. 187.

154. For example Art. 6(2) see Explanatory Memorandum to the Aliens Bill, Sch. & J. p. 35.

155. Stb. 1965 No. 40.

156. Stb. 1966 No. 387.

157. The Article refers to checkpoints on the country's borders, mainly with Germany, since according to the Benelux Treaty of 11 April 1960 (Trb. 1960 No. 40) the control of persons had been transferred to the external frontiers of the Benelux area, and to ports and airports. Memorandum of Reply concerning the Aliens Bill, Sch. & J. p. 37.

158. Thus, the normal requirements for admission as laid down in Arts. 8–10 Aliens Act and Art. 41 Aliens Decree do not apply with respect to refugees.

159. “Aliens” within the meaning of Art. 22(2) include both persons who have crossed the border without complying with the relevant conditions, and those whose visas or residence permits have expired.

160. See Explanatory Memorandum to the Aliens Bill, Sch. & J. p. 17.

161. Government Note on the Aliens Bill, Sch. & J. p. 36. The Minister rightly referred to a possible “refoulement”: When aliens who have already been admitted to a third country are refused admission, there is evidently no question of enforced return.

162. See supra p. 176 n. 147.

163. Debate on the “Note regarding the Aliens Bill” (Bijl.Hand.II 1967/68 - 9666 No. 2) in the Second Chamber, Hand.II 1968/69 p. 2667. The Minister referred to individuals whose mere discontent with the situation in their own country is warranted in the view of the Dutch but who cannot come within the narrow definition of refugee as laid down in Art. 15(1). A fortiori individuals who do come within the scope of this definition, and who therefore may be regarded as “genuine” refugees will supposedly be safeguarded against indirect enforced return. Sending an alien back to a country of former residence does not contravene Art. 33 Refugee Convention: see the Minister's reply to written questions, 14 April 1972, Aanh.Hand.II 1971/72 No. 1203 p. 2428. See further: Fonteijn and Fraay (and the ensuing discussion) in Aspecten van Vluchtelingenrecht, pp. 154, 195.

164. See Explanatory Memorandum and Government Note on the Aliens Bill, Sch. & J. pp. 35–36.

165. See Explanatory Note to Aliens Decree, Sch. & J. p. 120. Besides, such special instructions may also be given for reasons connected with the refugee. Art. 33 Refugee Convention allows exceptions to the rule of non-return for two reasons, see supra n. 145.

166. In the context of Art. 35 Refugee Convention which provides for co-operation with the Office of the UN High Commissioner for Refugees on the part of the Contracting Parties, there are contacts between the Dutch authorities and tho Representative of the UNHCR in the Netherlands. The State Secretary of Justice described the further sources which supply the Minister of Justice with information, in his discussion with the Parliamentary Standing Committee for Justice on 22 December 1971, Bijl.Hand.II 1971/72 -11500 VI No. 15 p. 3.

167. The relevant procedures are laid down in Art. 52 Aliens Decree.

168. According to information from the Minister of Justice, statement of 1 February 1972 in the First Chamber, Hand.I 1971/72 p. 283.

169. For a brief survey regarding the Dutch Aliens Act, see Ko Swan, Sik, “The Netherlands Law on Aliens”, 1 N.Y.I.L. (1970) pp. 247–268Google Scholar. For a discussion of some aspects of the rules of law regarding aliens, see 21 A.A. (1972) pp. 1–48.

170. The arrangement of 1954 with the UNHCR was made by an exchange of letters; the letters have never been published. Oral information has emanated from the Aliens Bureau of the Ministry for Foreign Affairs. In reply to writtenquestions, 5 April 1971, the Minister of Justice gave detailed information regarding the content of the above arrangement, Aanh.Hand.II 1970/71 No. 951 p. 1911–1912. See also State Secretary of Justice in reply to written questions, 14 April 1972 Aanh.Hand.II 1971/72 No. 1203 pp. 2427–2428. For an exposition by the Representative of the UNHCR regarding his duties, see Aspecten van Vluchtelingenrecht pp. 199–202.

171. The State Secretary of Justice stated in reply to written questions: “Holders of a residence permit who have been granted a so-called mandate certificate by the Representative of the UNHCR in the Netherlands, acquire thereby the status of refugee under the Convention …” Aanh.Hand.II 1971/72 No. 1203, p. 2427.

172. As approval of the residence in Dutch territory of the person concerned is conditio sine qua non for the issue of a mandate certificate, the Dutch Government is involved in the determination of refugeeship under the Convention. The St2te Secretary of Justice assured the Chamber, however, that the Government does not prevent aliens from applying for such certificate to the Representative of the UNHCR in the Netherlands. Aanh.Hand.II 1971/72 No. 1166 p. 2353.

173. Art. 22(2) Aliens Act, discussed above, Art. 104 Aliens Decree, and Art. 15 Aliens Act, see infra.

174. By virtue of Arts. 23 and 28 Refugee Convention. In his reply to written questions the Minister of Justice mentioned these rights. See Aanh.Hand.II 1970/71 No. 951 p. 1912.

175. See Final Parliamentary Committee Report on the Aliens Bill, Bijl.Hand.II 1963/64 - 7163 No. 9 pp. 13, 15–16. See also the Minister of Justice's statement in the Second Chamber during the debate on the Note regarding the policy relating to aliens (Bijl.Hand.II 1967/68 - 9666 No. 2), Hand.II 1968/69 p. 2667. With respect to refugees who have already been admitted to a third country, the general policy of admittance applies in principle (see infra n. 201), albeit, that in this connection the humanitarian aspects carry greater weight than normal. See Final Parliamentary Committee Report on the Aliens Bill, Bijl.Hand.II 1963/64 - 7163 No. 9 p. 6 and Hand.II 1968/69 pp. 2666–26667.

176. The State Secretary of Justice stated in the First Chamber that it was precisely the absence of a date line that conferred great importance on Art. 15 Aliens Act;however, since the New York Protocol of 1967 deleted the date line in the Refugee Convention, the special reason for invoking Art. 15 Aliens Act is much less forcible. Hand.I 1971/72 p. 283. See further, Account of a discussion with the Parliamentary Standing Committee for Justice, Bijl.Hand.II 1971/72 - 11500 VI No. 15 p. 3.

177. In general, the concept of “refugee” as mentioned in the Dutch Aliens Act is interpreted in accordance with the intention and tenor of the Refugee Convention, The words “cause to fear persecution” of Art. 15 are deemed to be the counterpart of “well-founded fear” as mentioned in Art. I(A)(2) of the Refugee Convention. One of the publications discussing the Waver case, however, suggested that the Aliens Act might also be interpreted by national standards. In that case the interpretation might be wider. According to the author of the above publication much can be said in favour of this procedure since, contrary to the Convention, it is not in his opinion the aim of the Dutch Aliens Act to provide only a minimum protection to refugees. See van Maarseveen, H., “Ralph Waver, vreemdeling of vluchteling?” [Ralph Waver, alien or refugee?], N.J.B. (1972) No. 33 at p. 931Google Scholar; and “Note to KB (Royal Decree) of 9 August 1972” [dismissing the application for a review to the Crown], 22 A.A. (1973) pp. 152–156, at p. 155.Google Scholar

178. Art. 15(4) Aliens Act.

179. See supra pp. 170–175. See however n. 177.

180. Hand.II 1968/69 p. 2667. The Minister also assured the Parliamentary Standing Committee for Justice that a generous policy would be pursued with respect to the aliens concerned, see Hand.II 1969/70 p. D 27. In reply to written questions, 14 April 1972, the State Secretary of Justice made an identical statement, Aanh.Hand.II 1971/72 No. 1203 p. 2427.

181. Art. 15(2) Aliens Act only allows exceptions to the rule for “important reasons in connection with the public interest”.

182. See Final Parliamentary Committee Report on the Aliens Bill, Bijl.Hand.II 1963/64 - 7163 No. 9 p. 6 and Hand.II 1963/64 pp. 2241–2243. From the context of the Minister's statement it is clear that he referred to “admission as a refugee”. In later statements regarding refugees such generous assurances are lacking. Duynstee may have been right when he stated that the Ministry of Justice discovered at an early date that Art. 15 Aliens Act [implying that refugees once admitted were entitled to an indefinite sojourn in the Netherlands, according to Art. 10(1)(b)] went too far, “Het Nederlands Vreemdelingenrecht” [Dutch rules of law regarding refugees] in Riphagen, W. et al. , De vreemdeling in Nederland [Aliens in the Netherlands] (Deventer, 1972) pp. 36–54 at p. 49.Google Scholar

183. Memorandum of Reply concerning Note regarding the policy relating to aliens, Bijl.Hand.II 1968/69 - 9666 No. 5 p. 2. The procedure may also explain the fact that ever since the Aliens Act entered into force on 1 January 1967, on only three occasions aliens have been admitted as refugees under Art. 15. See the State Secretary of Justice's reply to written questions, Aanh.Hand.II 1971/72 No. 1203 p. 2427. The State Secretary explained the small number.of “admissions as a refugee” from the fact that the examination of eligibility is a time-consuming process and that it is in the interest of refugees that the decision is not arrived at hastily. He refers to his remarks on this subject made in the Parliamentary Standing Committee for Justice, Bijl.Hand.II 1971/72–11500 VI No. 15 p. 3.

184. The restricted duration of a residence permit follows from Art. 9 Aliens Act, from the relevant passage in the Explanatory Memorandum to the Bill, Sch. & J. p. 42, and from Art. 24 Aliens Regulation, being a further implementation of the Aliens Act (Stc. 28 September 1966 No. 188), Sch. & J. pp. 197 et seq.

185. In respect of the latter category the Explanatory Note to the Aliens Decree, Sch. & J. p. 189, states that these aliens will be granted the protection accorded by Art. 32(2) Refugee Convention if there is any reason at all to suppose that they might indeed be refugees within the meaning of the Convention. Art. 104(1)(c) Aliens Decree, however, contains the following restriction: “unless in the unanimous opinion of Our Minister [of Justice] and Our Minister for Foreign Affairs, after consultation with the Representative of the UNHCR, such quality should be refused immediately to the alien concerned.”

186. For the remedies see infra p. 184.

187. Grounds of national security and public order. To these grounds Art. 104(4) Aliens Decree added that of giving false information leading to the issue or renewal of a residence permit.

188. See Explanatory Note to Aliens Decree, Sch. & J. p. 185. For Art. 32 Refugee Convention see supra p. 175.

189. Hand.II 1963/64 p. 2241. The various provisions of the Refugee Convention to which the Minister referred were Art. 28 and paras. 6, 11 and 13 of the Annex to the Convention; all of these concerned travel documents.

190. Art. 106(a) Aliens Decree. See Explanatory Note to Aliens Decree, Sch. & J. pp. 191–192.

191. As far as refugees are concerned there is even a special procedural guarantee: the Advies commissie voor Vreemdelingenzaken (Aliens Advisory Commission) must be heard when the Minister of Justice contemplates rejection of an application for a review.(Art. 31(1)(b) Aliens Act and Art. 105 Aliens Decree). Before giving its Opinion the Advisory Commission hears the Representative of the UNHCR in the Netherlands or his deputy (Art. 16(1) Aliens Decree).

192. Art. 29 Aliens Act. An application for a review often stays the order to leave the country attendant upon a refusal to grant or renew of residence permit. Stay is regulated in Art. 32(1) Aliens Act. This Article states that pending the Minister's decision in the review proceedings expulsion will usually not be effccted, but that expulsion need not be stayed inter alia when the individual concerned did not possess a valid residence permit (as happened in the Waver case). When he announced a more flexible policy regarding aliens, the State Secretary of Justice stated that in certain cases, aliens would be allowed to wait upon the decision regarding an application for a review in the Netherlands, even though the law did not make the granting of such permission compulsory. “This will always be allowed in the case of a plea of refugee status…” See account of the discussion between the Parliamentary Standing Committee for Justice and the State Secretary of Justice of 22 December 1971, Bijl.Hand.II 1971/72 - 11500 No. 15 p. 2.

193. Art. 34 Aliens Act. Para. 5 of this Article states that if the disputed decision of the Minister of Justice follows the Opinion submitted by the “Aliens Advisory Commission”, the alien concerned is only entitled to request a further review by way of petition to the Crown if he has been resident in the Netherlands for a period of at least one year at the time of the decision. The special procedure prescribed in such cases is that the Crown must ask the opinion of the Judicial Committee (Afdeling Contentieuxj of the Council of State (Art. 37(2) Aliens Act). In practice this Commitee acts as an administrative tribunal since the Crown almost always follows its Opinion and decides in accordance with the draft Royal Decree which the Committee attaches to its Opinion. By means of rather complicated rules of procedure the Crown is restrained as far as possible from deciding in contradiction to the Committee's Opinion (the so-called “contrair gaan” i.e. advice notwithstanding). If the Crown contemplates a contradiction, the Crown must ask for a reconsideration stating its objections. If the Crown remains adamant in spite of the reconsidered Opinion, and the decision is made accordingly, the reasoned dissenting decision must be published in toto in the Staatsblad, together with the report of the responsible Minister in which the latter, after consultation with the Minister of Justice (c.q. the Prime Minister), informs the Queen of his view which led him to depart from the Opinion of the Council of State. This report should also contain the draft Royal Decree as drafted by the Judicial Committee of the Council of State (Arts. 56–58, Council of State Act, Stb. 1962 No. 88).

194. Cf. supra p. 179.

195. Explanatory Memorandum to Aliens Bill, Sch. & J. p. 39.

196. See Memorandum of Reply concerning the Aliens Bill, Sch. & J. p. 53.

197. See supra supra p. 180 n. 173.

198. Cf. supra p. 180. According to the Wet Beroep Administratieve Beslissingen (Appeal from Administrative Decisions Act), Stb. 1963 No. 268, a refusal by the Minister for Foreign Affairs to issue a refugee passport is susceptible to appeal. (See Bijl.Hand.il 1971/72 - 11500 VI No. 15 p. 3). Similarly, an appeal from decisions in the field of social security may be brought to the authorities mentioned for this purpose in the relevant legislation.

199. See supra p. 179.

200. Cf. summary of the facts, supra p. 144 n. 3.

201. The wording refers to the criteria for admission as applied in the Netherlands. In reply to a pertinent question the Minister of Justice stated that “A residence permit is granted to an alien if his presence in this country serves an economic or cultural Dutch interest. Furthermore, reasons of a humanitarian character are also taken into account.” Aanh.Hand.II 1970/71 No. 331 p. 665.

202. See account of a discussion between the Minister of Justice and the Parliamentary Standing Committee for Justice, 10 June 1971 (see supra n. 4). See also supra n. 7.

203. See supra p. 170.

204. Decision of the Minister of Justice of 2 July 1971, refusing the request for admission as a refugee, see Stb. 1972 No. 427 p. 6.

205. Letter requesting a reconsidered Opinion, Stb. 1972 No. 427, p. 12. See also supra p. 171.

206. Waver's objections contained in his application for a review of the decision by the State Secretary of Justice of 2 July 1972, Stb. 1972 No. 427 pp. 6, 7 at p. 7.

207. See Waver's petition to the Crown for further review, also reproduced in Stb. 1972 No. 427 p. 8.

208. Quotation from Art. 15(1) Aliens Act. See supra n. 177.

209. See the draft Royal Decree, Stb. 1972 No. 427 p. 10.

210. See the State Secretary's objections against the Opinion as contained in his letter of 14 April 1972, Stb. 1972 No. 427 pp. 11–12 paras. 1 and 3.

211. Reconsidered Opinion of 6 June 1972, Stb. 1972 No. 427 p. 15.

212. This is apparent from his letter of 8 August 1972, addressed to the Queen. Regarding “well-founded fear” the State Secretary observed: “Contrary to the view expressed in the draft Decree, it is currently held [by the Judicial Committee] – a view with which I am in accordance – that the issue is well-founded fear of persecution rather than “well-founded reason for assumption that some one fears…” Stb. 1972 No. 427 p. 3.

213. For these views see supra p. 172.

214. Decision of the Minister of Justice of 2 July 1971, in Stb. 1972 No. 427 p. 6.

215. In his application for a review of the ministerial decision and in his later petition to the Crown. The former is unpublished, the latter can be found in Stb. 1972 No. 427 pp. 7–9 at p. 8.

216. In case the Minister of Justice persisted in his restrictive view, Waver alternatively objected that if the existence of persecution did indeed require infliction of a heavier punishment, the decision of 2 July 1971 could not be allowed to stand either, since the fact that he had repeatedly and publicly vented his political opinion and his political objections in the Netherlands could be expected to be taken into account to his detriment when he came to be punished for his desertion. See Stb. 1972 No. 427 p. 7.

217. Ibid. p. 6 and especially p. 8. Also Grahl Madsen, op.cit. Vol. I, pp. 250–251.

218. See supra pp. 174–175.

219. Stb. 1972 No. 427 p. 6 and p. 10 (draft Royal Decree).

220. Stb. 1972 No. 427 p. 10.

221. The State Secretary's present rather undifferentiated description of persecution calls to mind the views of the liberal school on this issue. See supra p. 172.

222. Stb. 1972 No. 427 p. 11. In evidence of his contention that draft dodging for political reasons is evidently not one of the fundamental human rights, the State Secretary adduced that this was manifest from the mere fact that as far as was known no State granted exemption from military service for reasons of political opinion.

223. Reference was made to Art. I(F) of the Refugee Convention which excludes any person with respect to whom there are serious reasons for considering that he has committed a crime against peace or against humanity or acts contrary to the purposes and principles of the United Nations, from the application of the Convention.

224. If one takes the Judicial Committee's view that normal prosecution arising from a politically motivated offence may be construed as persecution, the requirement of well-founded fear will practically always be met when such an offence has been committed, since in that case there is, according to objective standards, reason to fear prosecution qua persecution. The real issue in this connection is, however, to determine when the political motives have sufficient relevance for persecution for reasons of political opinion to be assumed.

225. Stb. 1972 No. 427 p. 16.

226. The State Secretary confirmed that prosecution resulting in an anticipated normal punishment may be construed as persecution, but only in the very special case of punishment according to penal provisions which in themselves were of a discriminatory nature. He did not think that in the Waver case such penal provisions were an issue. Stb. 1972 No. 427 p. 3.

227. Judicial Committee, which consistently pointed out that each case should be judged on its own merits, considered that, as far as it knew, a request to hand over a suspect under SOFA had so far never been addressed to the Dutch Government so that for this reason alone a specific situation might be said to exist. Reconsidered Opinion, Stb. 1972 No. 427 p. 16.

228. Ibid.

229. Objections against the Judicial Committee's Opinion, Stb. 1972 No. 427 p. 12.

230. In the first stage of the Waver case (in his decision of 10 June 1971, see supra n. 11) the State Secretary had already argued that in his view, conscientious objectors should try to get their objections recognized by the competent authorities. According to American law this could be effected both before the individual concerned entered the armed services and during his service. Opinions differ as to Waver's contention that he had initiated such measures. According to Waver himself he had made the relevant request but his request could not be considered as the captain of the ship refused to sign the accompanying standard request chit. A spokesman for the competent American authorities stated on the other hand that Waver had abandoned his plan to make the request when he was informed of his prospects of success. See also decision by the President of the Hague District Court of 14 June 1971 (supra n. 3).

231. HR 13 April 1960 in N.J. (1960) No. 436; HR 30 May 1967 in N.J. (1968) No. 64; Yearbook of the European Convention on Human Rights, vol. 5 No. 1068–61 of 14 December 1962 p. 279; No. 1497–62 of 14 December 1962 p. 287; vol. 10 No. 2988–66 of 31 May 1967 p. 472; Stb. 1972 No. 427 p. 11 mentions all the above sources.Google Scholar

232. Letter of 8 August 1972, Stb. 1972 No. 427 pp. 3–4.

233. Ibid. p. 4. In that document the State Secretary mentioned another reason why he could not accept the Committee's Opinion: To follow it would lead to the unacceptable consequence that the Netherlands might institute criminal proceedings against a Dutch conscientious objector or deserter because the latter's political objections against compulsory military service might not be recognized as serious conscientious objections within the meaning of Wet gewetensbezwaren militaire dienst [Conscientious Objectors Act] (Stb. 1965 No. 303) while she had simultaneously the obligation to grant protection as a refugee to a national of another Contracting Party who had escaped to the Netherlands and in presenting himself as a refugee invoked identical objections against compulsory military service.

234. It was considered in the Royal Decree to be unlikely that Waver would become the victim of persecution by reason of his political opinion upon his return to the United States, as such persecution could only be said to exist if his punishment for desertion would be out of proportion precisely because the offence was committed for political reasons or if there were reasons to think that, apart from a normal punishment, discriminatory persecution would be carried out, whereas it was assumed that Waver could merely expect normal punishment. Stb. 1972 No. 427 p. 1. For the relevant consideration in the decision of the Minister of Justice of 2 July 1971, see supra p. 187.

235. See supra p. 184–5. However, the other possibilities are merely academic since ultimately the opinion of the same persons (inter alia the Ministers of Justice and for Foreign Affairs and the Representative of the UNHCR in the Netherlands) is again decisive. In Waver's case a change of opinion on their part could hardly be anticipated after their long and scrupulous examination of the Refugee Convention and the Aliens Act.

236. Letter of 8 August 1972, Stb. 1972 No. 427 p. 4.