By Barend ter Haar. The words of Abraham Lincoln to honour the soldiers that sacrificed their lives in order “that government of the people, by the people, for the people, shall not perish from the earth” were spoken at Gettysburg, but these words apply as well to the countless soldiers that died for the cause of democracy in the following 150 years. Democracy has become such a sacrosanct concept that even the harshest dictatorships, such as the Democratic People’s Republic of Korea, call themselves a democracy. But what is democracy? Was it democracy to give the British people the opportunity to vote about membership of the European Union after providing them with contradictory information about the consequences of leaving? Was it democracy to ask the opinion of the Dutch people about an Association Agreement with Ukraine for improper reasons? (The committee that took the initiative admitted that it did not care at all about Ukraine but wanted to use the referendum to destroy the European Union or drive the Netherlands out of the EU.) Is it democracy when Dutch ministers shy away from telling the people that the Netherlands is giving up (for very good reasons) part of its sovereignty to the European Union because that would incite people to vote for anti-European parties? (See my column Who dares to be honest? [1]) Obviously, if politicians believe that voters cannot be trusted with the truth, democracy is seriously at risk. For a democracy to function it is essential that a government respects the people and takes them seriously, not only those that have voted for that government, but all people. Furthermore, in order to exercise their democratic rights properly, people should be informed as fully as possible. Democracy is a form of conflict management within states, just as diplomacy is a form of conflict management between states. Both therefore usually lead to a compromise between different views and different perceived interests. That is certainly the case when a decision requires both agreement between and within states. Democracy is a living system of government that can only prosper by being reinvented again and again. It can be strengthened by a referendum if a question can be answered by a simple yes or no. However, democracy is undermined when people are made to believe that a complicated question that involves the interests of different countries can be satisfactorily answered by a referendum in one of these countries. Neither the future of the relation between the EU and Ukraine, nor the future relation between the United Kingdom and the EU can be based on a simplistic yes or no. [1] https://www.clingendael.nl/publication/who-dares-be-honest

By Prof. Anis H. Bajrektarevic. A freshly released IMF’s World Economic Outlook brings (yet again, for the sixth year in a row, and for the third time this year only) no comforting picture to anyone within the G-7, especially in the US and EU. Will the passionately US-pushed cross-Atlantic Free Trade Area save the day? Or, would that Pact-push drag the things over the edge and mark an end of the unionistic Europe? Is the extended EU conflict with Russia actually a beginning of the Atlantic-Central Europe’s conflict over Russia, an internalization of mega geopolitical and geo-economic dilemma – who accommodates with whom, in and out of the Union? Finally, does more Ukrainian (and Eastern Europe) calamities pave the road for a new cross-continental grand accommodation, of either austerity-tired France or über-performing Germany with Russia, therefore the end of the EU? For whose sake Eastern Europe has been barred of all important debates such as that of Slavism, identity, social cohesion (eroded by the plunder called ‘privatization’), secularism and antifascism? Why do we suddenly wonder that all around Germany-led Central Europe, the neo-Nazism gains ground while only Russia insists on antifascism and (pan-)Slavism? Before answering that, let us examine what is (the meaning and size of) our Europe? Where, how and – very importantly – when is our Europe? For example, is the non-EU Europe the existent but invisible world, sort of the dark side of the moon? Or, is that something more? Beyond the ancient Maastricht and Schengen: the Roman Hadrian Wall and Limes Line there was no world at all. There was only (an instrument of) the Silk Road – that antique WTO, isn’t it? Hence, is this unionistic condominium the best of Europe, or Europe itself? Is the EU an authentic post-Westphalian conglomerate and the only logical post-Metternich concert of different Europes, the world’s last cosmopolitan enjoying its postmodern holiday from history?[1] Is that possibly the lost Atlántida or mythical Arcadia– a Hegelian end of history world? Thus, should this OZ be a mix of the endemically domesticated Marx-Engels grand utopia and Kennedy’s dream-world “where the weak are safe and the strong are just”? Or, is it maybe as Charles Kupchan calls it a ‘postmodern imperium’? Something that exhorts its well-off status quo by notoriously exporting its transformative powers of free trade dogma and human rights stigma[2]–a modified continuation of colonial legacy when the European conquerors, with fire and sword, spread commerce,[3] Christianity and civilization overseas – a kind of ‘new Byzantium’, or is that more of a Richard Young’s declining, unreformed and rigid Rome? Hence, is this a post-Hobbesian (yet, not quite a Kantian) world, in which the letzte Mensch expelled Übermensch? Could it be as one old graffiti in Prague implies: EU=SU²? Does the EU-ization of Europe equals to a restoration of the universalistic world of Rome’s Papacy, to a restaging of the Roman-Catholic Caliphate? Is this Union a Leonard’s runner of the 21st century, or is it perhaps Kagan’s ‘Venus’– gloomy and opaque world, warmer but equally distant and unforeseen like ‘Mars’?[4] Is this Brussels-headquartered construct, the 20th century’s version of Zollverein with standardized tariffs and trade, but of an autonomous fiscal policy and politics? Thus, is the EU a political and economic re-approachment of sovereign states or maybe just an(other) enterprise of the borderless financial capital? Ergo, would that be a pure construct of financial oligarchy whose invisible hand tacitly corrupted the Maastricht Treaty as to web-up a borderless, limitless, wireless and careless power hub, while at the same time entrenching, silencing and rarefying labour within each nation state? Is this a supersized Switzerland (ruled by the cacophony of many languages and enveloped in economic egotism of its self-centered people), with the cantons (MS, Council of EU) still far more powerful than the central government (the EU Parliament, Brussels’ Commission, ECJ), while Swiss themselves –although in the geographic heart of that Union – stubbornly continue to defy any membership. Does it really matter (and if so, to what extent) that Niall Ferguson wonders: “…the EU lacks a common language, a common postal system, a common soccer team (Britain as well, rem. A.B.) even a standard electric socket…“? Kissinger himself was allegedly looking for a phone number of Europe, too. Baron Ridley portrayed the Union as a Fourth Reich, not only dominated by Germany, but also institutionally Germanized. Another conservative Briton, Larry Siedentop, remarked in his Democracy in Europe that it is actually France who is running the EU ‘show’, in the typical French way – less than accountable bureaucracy that prevents any evolution of the European into an American-style United States. Thus, Siedentop’s EU is more of a Third Bonapartistic Empire than possibly a Fourth German Reich. The Heartland or Rimland? After all, is the Union yet another virtue out of necessity, as Brzezinski claimed, that after centuries of colonial overstretch and of mutual destructions (between protagonists in close geographic proximity), Europe irreversibly lost its demographic, economic and politico-military importance, and that the early EU was more of an attempt to rescue a nation state than it was the quest for a true enterprise of the European Community building? Despite different names and categorizations attached, historical analogies and descriptions used, most scholars would agree upon the very geopolitical definition of the EU: Grand re-approachment of France and Germany after WWII, culminating in the Elysée accords of 1961. An interpretation of this instrument is rather simple: a bilateral peace treaty through achieved consensus by which Germany accepted a predominant French say in political affairs of EU/Europe, and France – in return – accepted a more dominant German say in economic matters of EU/Europe. All that tacitly blessed by a perfect balancer– Britain, attempting to conveniently return to its splendid isolation from the Continent in the post-WWII years. Consequently, nearly all scholars would agree that the Franco-German alliance actually represents a geopolitical axis, a backbone of the Union. However, the inner unionistic equilibrium will be maintained only if the Atlantic-Central Europe skillfully calibrates and balances its own equidistance from both assertive Russia and the omnipresent US. Any alternative to the current Union is a grand accommodation of either France or Germany with Russia. This means a return to Europe of the 18th, 19th and early 20th centuries – namely, direct confrontations over the Continent’s core sectors, perpetual animosities wars and destructions. Both Russia and the US has demonstrated ability for a skillful and persistent conduct of international affairs, passions and visions to fight for their agendas. It is time for Brussels to live up to its very idea, and to show the same. Biology and geopolitics share one basic rule: comply or die.   Prof. Anis H. Bajrektarevic,  is professor in international law and global political studies, based in Austria. Vienna, 08 JUN 2016 / Contact: anis@bajrektarevic.eu   ^[1] One of the greatest historians of our age, Sir Toynbee, gives an interesting account of our civilizational vertical. He clas-sifies as many as nineteen major civilizations: Egyptian, Andean, Sinic, Minoan, Sumerian, Mayan, Indic, Hittite, Hellenic, Western, Orthodox Christian/Russian, Far Eastern, Orthodox Christian/main body, Persian, Arabic, Hindu, Mexican, Yucatec, and Babylonic. Further on, there are – as he calls them – four abortive civilizations (Far Western Christian, Far Eastern Christian, Scandinavian, Syriac) and five arrested civilizations (Polynesian, Eskimo, Nomadic, Ottoman, Spartan). Like to no other continent, majority of them are related (originating from or linked) to European proper. ^[2] Lately, it looks like a Gay-rights Jihad at many places. The non-selective, but massive push without premeditation on the key issue here: whether homosexuality should be either tolerated behavior or promoted life-style, has to be urgently revisited and (re-)calibrated. As it stands now, this Gay-rights Jihad serves neither the human/behavioristic rights nor a worrying birth-rates decline. The European demographics is far more of a serious and urgent socio-economic problem. Why? It is closely related to the emotional-charge inflammable triangular issues – identity, migration and integration, and by it triggered (to say: justified) right-wing anti-politics. ^[3] Is globalization the natural doctrine of global hegemony? Well, its main instrument, commerce –as we know – brings people into contact, not necessarily to an agreement, even less to mutual benefits and harmony…Or, “If goods cannot cross borders, armies will” is the famous saying of the XIX century French economist Frederic Bastiat, so often quoted by the longest-ever serving US Secretary of State Cordell Hull. ^[4] ”No venue has been created in which an EU-wide public opinion might be formed… European Parliament elections are not truly European because they are 27 different elections with different electoral systems after campaigns in which national issues predominate… Under present procedures, both the President of the European Commission and the President of the European Council are selected in private meetings of heads of governments..”, says former Irish Prime Minister John Bruton. Bruton, J. (2013), How real is the danger of an EU collapse?, EU Journal Europe’s World 23(13) 2013, Brussels    

By Jan Dop. Introduction Embassies and Consulates have to deal with the Dutch when they represent their country in the Netherlands. Embassies and Consulates, however, enjoy a special status because they are considered to rule under their own flag and not under that of the country of residency. Nevertheless, on occasion they do have to deal with Dutch law, for example with regard to their locally hired personnel working in the Netherlands, when buying or selling property (residence, Embassy) or concluding any other commercial contract. This chapter will discuss the limits of diplomatic immunity and how said limits are defined, the consequences of the diplomatic status and the situations in which Dutch law will apply. Definitions Embassy An Embassy is the representation of a particular state in another state. Most states have their Embassy in the Netherlands located in The Hague, where the Dutch government is seated. The Ambassador The Ambassador is a diplomatic official, assigned (and recognized) to serve as the official representative of a particular state in a foreign state or an international organization. He holds the highest rank in the diplomatic hierarchy. A diplomatic mission headed by an Ambassador is known as an Embassy. Consulate A Consulate (or Consular Office) is predominantly in charge of issues relating to individual people and businesses, in other words, issues outside the scope of inter-governmental diplomacy. A country may have several Consulates or Consulates General in major economic centres to support their economic interests. Diplomatic corps The collective body of all diplomats residing in a particular country is called a diplomatic corps. State immunity Scope of immunity The independent character of a sovereign state conflicts with being subjected to the laws and jurisdiction of another state. For this reason, but also in order to enable states to carry out their public functions effectively, states have (state) immunity. State immunity refers to the right or privilege of being exempted from the existing power or jurisdiction of another state. National courts do not have jurisdiction over claims against a foreign state, its diplomats and/or diplomatic services. There is no uniform law on state immunity, but there are several conventions, such as the European Convention on State Immunity (ECSI 1972). Immunity of jurisdiction only applies to activities of governmental or public nature, the so-called acta iure imperii. It is not applicable to activities of a private or commercial nature, the so-called acta iure gestionis. This distinction is widely accepted. When immunity cannot be invoked, this does not necessarily mean that a judgement can be executed or property can be seized in full. According to the ECSI for example, a convicted member state will have to comply with the judgement by choice. However, it is not possible to seize property meant for public services. It is not permitted either to attach any goods or financial assets of the foreign state that are intended for public services. It is not clear however, whether bank accounts of diplomatic missions and consular posts can be attached. From numerous court decisions it can be concluded that, in case the bank account only serves the purpose of allowing the diplomatic mission or consular post to function, it cannot be attached. Waiving immunity Immunity from jurisdiction is not absolute. Therefore, the question of immunity only arises when the foreign state refuses to submit to the jurisdiction of the local court. A state is considered to waive its immunity when it appears in court, when it acts as plaintiff or starts a counterclaim, unless, of course, it appears in court to invoke immunity. Foreign states can waive their immunity voluntarily (in advance), both explicitly and silently. When immunity is waived or not applicable, the substantial rules of law applicable by the local or territorial court are fully effective. Immunity of jurisdiction with regard to employment law Almost all employment law issues are considered as acta iure gestionis of the Embassy if the work is performed in the receiving state and the employee has the nationality of the receiving state. Therefore, in most employment matters, state immunity cannot be invoked. This might be different with regard to diplomatic staff or personnel employed directly with the Ambassador. With regard to a state that is not a party to the ECSI, the court will apply international customary law, which considers the conclusion of an employment agreement an actus iure gestionis. Case law shows that the employing state cannot invoke its immunity if the employee has the nationality of the receiving state, if he has permanent residency in the receiving state, and/or if there are convincing connections between the employment and the receiving state. Dutch employment law can therefore also apply to diplomatic missions. The exception with regard to the legal obligation of Dutch employers to obtain a UWV (Employee Insurance Agency) permit in case they want to dismiss an employee, has lapsed since 1 July 2015. Thus, in the event of dismissal of an employee, depending on the reason for the dismissal, either the UWV or the Subdistrict Court will have to be addressed. For more information on Dutch employment law see Chapter 3. Finally, a state can invoke immunity in legal proceedings with regard to the termination of a private (employment) contract if these proceedings interfere with state security. Immunity of jurisdiction with regard to social security Locally hired staff will not be exempt from national insurance and employee insurance, such as state pension (AOW), incapacity for work benefits (WIA), sickness benefits and unemployment benefits (WW). Social security is also compulsory for technical staff, administrative staff and operating staff staying permanently (for longer than ten years) in the Netherlands. Diplomatic staff and staff that don’t have the Dutch nationality and are already insured in the country of origin are exempt from the insurance requirement. The social security requirement also includes the employer’s obligation to comply with the Dutch regulations regarding guidance and reintegration of sick employees. This includes regular contact with the occupational health and safety physician. Failing this, the paying institution, the UWV, may decide that the employer has acted inadequately and thus has to pay the wages of the sick employee not only during the first two years of sickness but also during the third year. Immunity of jurisdiction with regard to commercial contracts A state’s conclusion of a commercial contract is, in principle, an actus iure gestionis and therefore not subject to state immunity. Such contracts may be so closely linked to the interests of a state that they nevertheless fall under state immunity, which is not very common, however. Thus, for instance, an agreement for the supply of computer equipment for the Embassy will, in principle, not fall under state immunity. One exception is, in particular, state security, as a result of which immunity may indeed be applicable to a security software agreement. Immunity of jurisdiction with regard to real estate Embassies and the premises of Ambassadors are inviolable, even if they are not yet utilized. They are on Dutch territory however, and thus Dutch law is applicable to these premises, including real estate law. This is all the more so if the Embassy owns real estate which is not used for diplomatic services. Therefore, it is important to verify in advance whether your intended use of the premises corresponds with the zoning plan (not all villas in Wassenaar may be used as an office) and whether municipal permits are required. Changes to the building that have an effect on the appearance of the premises (cleaning/painting the facade or changing single glazing into double glazing!) require a permit, especially if the premises are a registered monument or part of a conservation area, as is the case with most Embassies. Security measures for Embassies, such as alarms, cameras, fences and/or roll-down shutters, often require a permit. If premises are leased, the owner has to agree to changes before they can be made. The same rules as to other commercial contracts apply to real estate contracts. Disputes with lessees, sellers, contractors and maintenance companies will be examined by a Dutch court according to Dutch law, unless specifically agreed otherwise. Diplomatic immunity Diplomatic immunity is a form of legal immunity to ensure that diplomats are given safe passage and are considered exempt from lawsuit or prosecution under the laws of the receiving state. The rules concerning diplomatic relations are laid down in the Vienna Convention on Diplomatic Relations (VCDR 1961), which also applies in the Netherlands. The VCDR is an international treaty on diplomatic relations and the privileges and immunities of a diplomatic mission. According to the Convention diplomatic relations between states and permanent diplomatic missions are determined by mutual consent. The functions of a diplomatic mission include:

• Representing the sending state in the receiving state

• protecting the interests of the sending state and of its nationals in the receiving state

• promoting friendly relations between the sending state and the receiving state

• developing economic, cultural and scientific relations.In general, diplomatic missions and their members and families must respect the principles of Dutch law because their immunity does not extend to legislation itself. Diplomatic immunity only restricts the Dutch authorities in exercising their power with regard to the diplomats’ compliance with Dutch legislation.In addition, according to the VCDR, the territory of the diplomatic mission is inviolable and immune from investigation or taxes (extraterritoriality). Representatives of the receiving state can only enter the diplomatic mission’s territory with consent from the head of the diplomatic mission.The diplomat is also inviolable. The private residence of a diplomat receives the same protection as the premises of the diplomatic mission. In addition, a diplomat is immune from the criminal, civil and administrative jurisdiction (not relating to private immovable property or succession) of the receiving state. Immunity does not apply to the diplomat’s professional and commercial activities outside his official functions. The sending state can waive the diplomat’s immunity.Finally, even members of the administrative and technical staff and family members of the diplomatic mission enjoy some immunity, if they are not nationals of or residing permanently in the receiving state.Consular immunity Although Embassies and Consulates, and especially diplomats, enjoy immunity in the Netherlands, there are several situations in which they have to deal with Dutch law. The scope of their immunity depends on the diplomatic nature of their work and the nationality of their employees. Dutch employees are more likely to be subject to Dutch law than foreigners. In general, employees of diplomatic missions enjoy immunity with regard to their official acts, but not with regard to their personal conduct.

Conclusion The VCDR is not applicable to foreign Consuls and members of their staff. The consular mission falls within the scope of the Vienna Convention on Consular Relations (VCCR 1963), which confirms that Consuls and their staff enjoy immunity with regard to their official acts, but not with regard to their private acts.   About the author: Jan Dop is partner and Head of the Embassy Desk at Russell Advocaten. He advises and represents corporations, entrepreneurs and HR departments in corporate and commercial matters. Jan Dop, LL.M. (jan.dop@russell.nl).