Public Prosecutor v JO

• Date: 18 Septiembre 1979
• Court: Local Court (Netherlands)

The Netherlands, Local Court of Rotterdam.

Public Prosecutor

and

J.O.

Treaties Conclusion and operation Constitutional limitations Ministerial decree in conflict with provisions of prior enacted international treaty Whether decree binding on municipal courts Article 66 of Dutch Constitution The law of the Netherlands

State territory Parts of Rivers International rivers The principle of freedom of navigation on international rivers Restrictions in the interests of general security Reasonableness test Act of Mannheim, 1868, Article 1 Re-routing of inland shipping for benefit of seagoing traffic Whether ministerial decree which violates prior international treaty may be applied by the municipal courts Article 66 of the Dutch Constitution The law of the Netherlands

Summary: The facts:The accused, the skipper of an inland boat, was charged with navigating the Breeddiep on 21 May 1979, in contravention of the Ministerial Decree of 24 March 1971 which had closed that stretch of water to inland navigation. The accused pleaded that the Minister's Decree was not binding, since it was contrary to the Act of Mannheim, 1868.

Held:The prohibition on navigation was without legal force.

(1) Article 1 of the Act of Mannheim allowed free navigation on the Rhine and its mouths, from Basle to the sea, to be limited in the interests of general security. However, not every measure improving general security justified encroachment upon treaty provisions designed to ensure the freedom of navigation of the Rhine. It was necessary that the measure in question was both objective and reasonable and that there was a balance between the means used and the purpose in view.

(2) The Minister of Transport's decision to close the Breeddiep to inland shipping, forcing it to take a roundabout route through the Oude Maas and the Hartel canal, had been justified by the Minister on the basis that a corresponding stretch of water had been designated as a public waterway for seagoing vessels. But the measure could not be regarded as objectively and reasonably in the interests of general security since there was no evidence that the safety of shipping could not have been ensured by restrictions on inland shipping which were less severe than the far-reaching diversions and delays inherent in the closure.

(3) The Decree therefore violated the Act of Mannheim and, pursuant to Article 66 of the Dutch Constitution, was to be regarded as non-binding and inapplicable.

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