© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
about its jurisdiction in the case against the respondent is dismissed. Granting leave toproceed in default of appearance just means that the Court has established that the nonappearingdefendant was summoned in the manner prescribed by law logically precedes theassessment of the (international) jurisdiction of the Court with regard to the action againstthis defendant, for it is possible that the defendant wishes to submit his views on this tothe Court, and then it must first be established whether he was summoned in accordancewith the law if he failed to appear. A Court may render a decision about its jurisdiction atthe same time as granting leave to proceed in default of appearance, but does not have todo so. In this case this was not done; on 7 November 2007 the Court just gave a decision onthe leave to proceed in default of appearance as requested by the Association et al. butnot on its own jurisdiction in the case against the UN. In the extract of the record of thecause-list session in question, of which the parties appearing are cognisant, no mention ismade of (any assessment by the Court, ex officio or on application, concenrning) theCourt’s jurisdiction or the UN’s immunity.’Explanation of ground of appeal 320. The Association et al. under point 24 of its statement of defence argued at first instancethat the issue of jurisdiction was already a fait accompli. Leave to proceed in default ofappearance against the UN had already been granted on 7 November 2007.Leave to proceed in default of appearance against a non-appearing internationalorganisation can only be granted following an ex officio review by the Court of itsinternational jurisdiction. In procedural law terms granting leave to proceed in default ofappearance also entails acceptance of the status of the defendant as a party to theproceedings (see J. Spiegel, Vreemde staten voor de Nederlandse rechter, thesis 2001, page31).21. If the immunity of the UN were, however, to be absolute (which is the import of theargument of the State of the Netherlands preceding the granting of leave to proceed indefault of appearance, as suggested by letter dated 17 September 2007, a position repeatedwith extensive supporting argument in the letter of the Public Prosecutions Department,dated 2 November 2007, which letter was also submitted to the District Court under Article44 CCPr prior to the granting of leave to proceed in default of appearance), the cause listjudge should have ruled that no jurisdiction accrued to the Netherlands Court and shouldhave declared the Association et al. non-suited in their claims against the UN.© Van Diepen Van der Kroef Advocaten page 10 of 99
22. The Public Prosecutions Department, in the Advisory Opinion dated 2 November 2007 underArticle 44 CCPr preceding the granting of leave to proceed in default of appearance,referred to the letter of the UN dated 17 August 2007 to the Permanent Representative ofthe Netherlands to the UN. For that matter, the State of the Netherlands had also referredthe District Court to that letter in its letter dated 17 September 2007. The PublicProsecutions Department (see page 2, paragraph 5) stated:‘According to the letter dated 17 August 2007 the UN, precisely in respect of the immunityfrom jurisdiction to which it is entitled, did not appear before the Netherlands Court. Thisis in accordance with the settled practice of the UN.’This is entirely irreconcilable with the judgment of the District Court under legalconsideration 5.2, that:‘it is possible that the defendant wishes to submit his views on this to the Court, and thenit must first be established whether he was summoned in accordance with the law if hefailed to appear.’It was beyond any doubt, given the letter to the Permanent Representative to the UN, theletter of the State of the Netherlands to the District Court and the Advisory Opinion of thePublic Prosecutions Department under Article 44 CCPr, that the UN would not appear. Thethought that the UN might possibly appear in the proceedings to make known its view on theimmunity issue is incomprehensible and should be dismissed.23. The judgment of the District Court that the issue of leave to proceed in default ofappearance ‘logically’ precedes the judgment of the Court should likewise be dismissed.That is anything but logical and even erroneous given:1. the correspondence with the cause-list judge and the Advisory Opinion of the PublicProsecutions Department under Article 44 CCPr;2. the literature cited which demonstrates that leave to proceed in default ofappearance against a non-appearing international organisation can be granted onlyfollowing an ex officio review by the Court of its international jurisdiction. Inprocedural law terms granting leave to proceed in default of appearance also entails© Van Diepen Van der Kroef Advocaten page 11 of 99
- Page 2: Against:1. The State of the Netherl
- Page 6 and 7: - the motion by the State of the Ne
- Page 8: options exist side by side and do n
- Page 13 and 14: Explanation of ground of appeal 427
- Page 15 and 16: eferred to the fact that the proces
- Page 17 and 18: No legal relevant interest of the S
- Page 19 and 20: The Article envisages a situation i
- Page 21 and 22: The Hague District Public Prosecuto
- Page 23: 54. The District Court is evidently
- Page 26 and 27: functional necessity. In that conte
- Page 28 and 29: only in Germany. It was not dispute
- Page 30 and 31: immunity of the UN has no absolute
- Page 32 and 33: ‘Darüber hinaus kann gefragt wer
- Page 34 and 35: the purpose would become subservien
- Page 36 and 37: exercise of their functions in conn
- Page 38 and 39: ) leads to a result which is manife
- Page 40 and 41: 90. The ICJ gave an Advisory Opinio
- Page 42 and 43: of functional necessity for immunit
- Page 44 and 45: 100. Even where the District Court
- Page 46 and 47: 105. The District Court referred un
- Page 48 and 49: necessary that change is there effe
- Page 50 and 51: 115. It is also incomprehensible th
- Page 52 and 53: consideration 3.3.6). Under legal c
- Page 54 and 55: desirable that national courts do n
- Page 56 and 57: evidence of the necessity of conduc
- Page 58 and 59: The whole point of the Genocide Con
22. The Public Prosecutions Department, in the Advisory Opinion dated 2 November 2007 un<strong>der</strong>Article 44 CCPr preceding the granting of leave to proceed in default of appearance,referred to the letter of the UN dated 17 August 2007 to the Permanent Representative ofthe Netherlands to the UN. For that matter, the State of the Netherlands had also referredthe District Court to that letter in its letter dated 17 September 2007. The PublicProsecutions Department (see page 2, paragraph 5) stated:‘According to the letter dated 17 August 2007 the UN, precisely in respect of the immunityfrom jurisdiction to which it is entitled, did not appear before the Netherlands Court. Thisis in accordance with the settled practice of the UN.’This is entirely irreconcilable with the judgment of the District Court un<strong>der</strong> legalconsi<strong>der</strong>ation 5.2, that:‘it is possible that the defendant wishes to submit his views on this to the Court, and thenit must first be established whether he was summoned in accordance with the law if hefailed to appear.’It was beyond any doubt, given the letter to the Permanent Representative to the UN, theletter of the State of the Netherlands to the District Court and the Advisory Opinion of thePublic Prosecutions Department un<strong>der</strong> Article 44 CCPr, that the UN would not appear. Thethought that the UN might possibly appear in the proceedings to make known its view on theimmunity issue is incomprehensible and should be dismissed.23. The judgment of the District Court that the issue of leave to proceed in default ofappearance ‘logically’ precedes the judgment of the Court should likewise be dismissed.That is anything but logical and even erroneous given:1. the correspondence with the cause-list judge and the Advisory Opinion of the PublicProsecutions Department un<strong>der</strong> Article 44 CCPr;2. the literature cited which demonstrates that leave to proceed in default ofappearance against a non-appearing international organisation can be granted onlyfollowing an ex officio review by the Court of its international jurisdiction. Inprocedural law terms granting leave to proceed in default of appearance also entails<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 11 of 99
Change language