Rights for Others : The Slow Home-Coming of Human Rights in the Netherlands 9781107728639, 9781107041837

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RIGHTS FOR OTHERS

Rights for Others is an empirical study of what happens when international human rights are applied domestically in the Netherlands. It tracks recent debates in Dutch society on citizenship and the rights of immigrants, and analyses the shift from the perception of human rights as a ‘foreign policy concern’ to the slow processes of home-coming in what has traditionally been a left-wing society, but now includes many more right-wing political parties. Adopting an interdisciplinary approach, Oomen combines insights from law, sociology and anthropology to explain how rights gain significance in framing social and political discussions. The book provides comprehensive coverage on relevant constitutional law, legal culture and rights realization as well as discussing case material on human rights education, polarization, socio-economic rights, domestic violence and the rights of minorities. This is an invaluable contribution to the global fields of human rights and socio-legal studies for scholars and researchers. B A R B A R A O O M E N is Professor of Law at University College Roosevelt, Utrecht University and University of Amsterdam, the Netherlands.

CAMBRIDGE STUDIES IN LAW AND SOCIETY Cambridge Studies in Law and Society aims to publish the best scholarly work on legal discourse and practice in its social and institutional contexts, combining theoretical insights and empirical research. The fields that it covers are: studies of law in action; the sociology of law; the anthropology of law; cultural studies of law, including the role of legal discourses in social formations; law and economics; law and politics; and studies of governance. The books consider all forms of legal discourse across societies, rather than being limited to lawyers’ discourses alone. The series editors come from a range of disciplines: academic law; socio-legal studies; sociology; and anthropology. All have been actively involved in teaching and writing about law in context. Series editors Chris Arup, Monash University, Victoria Martin Chanock, La Trobe University, Melbourne Sally Engle Merry, New York University Susan Silbey, Massachusetts Institute of Technology A full list of titles in this series can be found at the back of the book.

RIGHTS FOR OTHERS The Slow Home-Coming of Human Rights in the Netherlands

Barbara Oomen University College Roosevelt, Utrecht University and University of Amsterdam

University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107041837 © Barbara Oomen 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY A catalogue record for this publication is available from the British Library ISBN 978-1-107-04183-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Acknowledgements List of Abbreviations

page vii xi

1

Introduction: the rights for others The rise of rights talk Human rights exportism Theories of home-coming Approaches Outline of the book

1 2 4 11 19 21

2

Internationalism as a constitutional identity An incomplete rights catalogue Support to the international legal order Direct effect Conclusion

25 27 31 44 50

3

Rights-free citizenship An unknown rights catalogue Legal culture: consensualism over adversarialism Culturalism and assimilationist citizenship Conclusion

52 56 62 67 79

4

The struggle over human rights education Actors negotiating human rights education NGOs International monitoring bodies Dynamics of human rights implementation Conclusion

80 84 84 85 95 103

5

A very un-Dutch case? Islamophobia The legal background The international human rights perspective The case of the century Conclusion

105 107 111 115 117 125 v

CONTENTS

6

Dealing with domestic violence the Dutch way Domestic violence in the Netherlands International human rights law and domestic violence Two worlds? Another chronicle of a death foretold Conclusion

128 131 134 139 141 143

7

Giving effect to social rights The ICESCR ‘No child put out onto the streets’: a case study Conclusion

146 148 154 164

8

The rights of the Reformed A special group Contested legal space National–international interplays Conclusion

166 168 172 180 188

9

Conclusion: the contested home-coming of human rights Resistance towards international human rights The home-coming of international human rights Giving meaning to human rights The sociology of rights and the case of the Netherlands Home-comings

190 191 195 199 203 205

Bibliography Index

vi

206 223

ACKNOWLEDGEMENTS

The first person to have made an important contribution to this book on international human rights in the Netherlands was the reviewer who gave a rather negative assessment of the project proposal ‘Why the Dutch don’t talk rights: universal human rights as a framework for the resolution of societal conflicts in the Netherlands’. Whereas the academic reviewers were generally very positive, the person looking into the societal relevance had his or her doubts. The reviewer agreed with the study’s points of departure, which are that human rights are generally considered a foreign policy issue in the Netherlands and that they are hardly ‘a daily topic of discussion in our society’. At the same time, looking into human rights as a framework for social and political issues in the Netherlands might be a worthwhile scholarly exercise, but would hardly contribute to ‘facing, preventing or solving problems in the field of conflict and security in the Netherlands’. The proposed case study on victims of domestic violence in Zierikzee was, for instance, about a tragic failure to provide safety to the victims, but could hardly be considered a human rights violation. In all, the reviewer concluded, the study would not result in insights on how to prevent or reduce tensions in Dutch society. I am very grateful to the Dutch Science Foundation for having accepted my response, which was that this review was a telling illustration of the project’s point of departure. This is that many policy-makers fail to see the relevance of international human rights treaties, that are part of Dutch law, to everyday policy discussions in the field of conflict resolution in the Netherlands. Understanding why this is the case, I argue, does not only contribute to scholarship on the sociology of rights, but also to Dutch society. A critical discussion of the potential of human rights to help address social conflicts in the Netherlands is not academic at all, I wrote. Or rather, ‘it should not be’. If, for instance, the case of domestic violence in Zierikzee and the calls for help by the victims had been considered a human rights issue this could possibly have led to a swifter response and the death of two children could have been avoided. vii

ACKNOWLEDGEMENTS

In conducting the research itself and developing an analytical framework that combines legal, anthropological and sociological insights in understanding why human rights, in the Netherlands, are generally considered as ‘rights for others’, I have received the assistance of many more people than can be named here. For one, there are the respondents who took time to fill in the survey for the research, or speak to me in person. The resulting insights were presented during an AAA panel on the anthropology of international law, two meetings of the Netherlands School of Human Rights Research, a seminar on the Wilders case at the University of Amsterdam, a seminar commemorating the late Peter Baehr, the annual meeting of the Netherlands–Flemish Socio-legal Research Association, a conference on the Politics of Justice at the Institute of Social Studies and a seminar dedicated to ‘Rights realized, rights resisted’ in Middelburg. Here, they benefited from the advice of colleagues like André Hoekema, Sally Engle Merry, Eva Brems, MarieClaire Dembour, Stephan Parmentier, Jenny Goldschmidt, Cees Flinterman, Fons Coomans, Leonard Besselink, Leo Gordenker and Michelle Parlevliet. One of the great joys of working at one of the first Liberal Arts and Sciences Colleges in the Netherlands is the permanent proximity of colleagues from all disciplines imaginable, and I have enjoyed sharing this research during official research meetings and over coffee. In doing so, I not only received input from my fellow jurists Pieter Ippel and Fried van Hoof, but also learnt from discussing citizenship in the Netherlands with historians Tobias van Gent and Nancy Mykoff, discussing domestic violence with psychologist Elizabeth Wiese, research methods with Nel Verhoeven, politics with Herman Lelieveldt and human rights education with the Going Glocal team including John Friedman, Fatima Muller-Friedman, Eri Park, Marcin Sklad and Anneke van Os. I am also indebted to the University College Roosevelt Board of Trustees, my predecessors Hans Adriaansens and Willem Hendrik Gispen, and our Managing Director Jorrit Snijder for encouraging me to combine teaching, research and management, making each of these functions all the more enjoyable. An additional advantage of an undergraduate setting that stimulates research is the wonderful support that many students gave to the project. Marloes Vrolijk played a key role in the research on human rights knowledge in the Netherlands. Iris Meijvogel, Niels Rijke, Matthias Ploeg and Joost Guijt made up the team that looked into the position of orthodox reformed in the Netherlands in relation to viii

ACKNOWLEDGEMENTS

the implementation of international human rights. Joey Hogeboom did archival research on the Dutch contribution to the Universal Declaration of Human Rights and the European Convention on Human Rights, while Arne Muis and Vicky van Hassel analysed the degree to which reference to human rights plays a role in current parliamentary debates. Simaya van Dooren organized the conference ‘Rights realized, rights resisted’, during which some of the findings were discussed. Moritz Baumgärtel, who is well underway to become a scholar in his own right, read and commented on all the chapters, and Zahra Yusifli played an important role in editing. Parts of this book were published elsewhere, but they have been substantially revised here. Parts of Chapter 4 were published in ‘Waving with Treaties? The Politics of Implementing Human Rights Education in the Netherlands’, Journal of Human Rights Practice, 5(2) (2013): 291–317, and a section of Chapter 8 in an article co-authored with N. Rijke titled ‘The Right to be Different: Homosexuality, Orthodoxy and the Politics of Global Legal Pluralism in Orthodox–Protestant Schools in the Netherlands’, Journal of Law and Religion, 28(2) (2013): 361–400. Much of the inspiration for the book, and the insights contained in it, comes from my work outside of academia. It was in my capacity as the Chair of the Netherlands Platform for Human Rights Education that I learned about the puzzled responses of Dutch policy-makers and politicians confronted with the notion of human rights violations in the Netherlands, and the fine art of ‘vernacularization’ of rights talk, forming NGO alliances and playing Putnam’s two-level playing field of national and international law – all theoretical concepts to be discussed in this book. Similarly, my membership of the Constitutional Review Commission gave me the type of insight into the limits to Dutch internationalism that no combination of formal interviews and participant observation would have yielded. My membership of the Human Rights Commission of the Advisory Council on International Affairs allowed me to follow the politics surrounding the formation of the Netherlands Human Rights Institute closely. Currently, my membership of the Institute’s Advisory Board also leads to insights on the politics of human rights implementation in the Netherlands. Whilst the work of current and former colleagues is subject to at times critical analysis in this book – and the methodological justification of this approach will be given elsewhere – it is important to express my admiration here for the work done by people like Pim Fischer, Carla van Os, Franka Olujic, Nathalie van Loon, Piet van Ledden, Kirsja Oudshoorn, Ton van den ix

ACKNOWLEDGEMENTS

Brandt, Harry de Ridder, Hans Sakkers, Dave Hardy and Laurien Koster and her team. Finally, Eleanor Roosevelt’s often-quoted saying that human rights begin close to home can be considered one of the underlying motto’s of this study. There are, of course, many other things that begin close to home, and happiness is one of them. It is for this reason that I am tremendously grateful for the daily company of Herman Lelieveldt, and our sons Tom, Bram and Jeroen.

x

ABBREVIATIONS

CAT CEDAW CERD CESCR CRC ECHR ECtHR ECJ ECOSOC ECRI ESC EU ETA ICC ICCPR ICESCR NHRI NPHRE OHCHR PVV SGP UDHR

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Elimination of Discrimination against Women Convention on the Elimination of Racial Discrimination Committee on Economic, Social and Cultural Rights Convention on the Rights of the Child European Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights European Court of Justice United Nations Economic and Social Council Council of Europe Commission against Racism and Intolerance European Social Charter European Union Equal Treatment Act International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights National Human Rights Institute Netherlands Platform on Human Rights Education Office of the High Commissioner for Human Rights Partij voor de Vrijheid (Freedom Party) Staatkundig Gereformeerde Partij (Reformed Political Party) Universal Declaration of Human Rights

xi

LIST OF ABBREVIATIONS

UN UNESCO UNICEF UPR

xii

United Nations United Nations Educational, Scientific and Cultural Organization United Nations Children’s Fund Human Rights Council Universal Periodic Review

C H A P T E R 1

INTRODUCTION: THE RIGHTS FOR OTHERS

On 10 December 2009 the Dutch Minister of Foreign Affairs handed out the ‘human rights tulip’ to Shadi Sadr, an Iranian activist. The ceremony took place in the stately Ridderzaal (Hall of Knights), a stone’s throw from the Peace Palace, the International Criminal Court and the other international tribunals that lead The Hague to call itself ‘The city of Peace and Justice’. Surrounded by a sea of specially grown yellow tulips, the minister reminded the audience of how the human rights tulip symbolized the prominent place of human rights in Dutch foreign policy, and was intended to give political support to human rights defenders. The Dutch government, it was said, was unique in giving such explicit encouragement to individuals whose main activity it is to take their governments to task. That same afternoon, a hundred kilometres from The Hague, the national ombudsman held a speech titled ‘The disappearance of human rights in the Netherlands’ (Brenninkmeijer 2010: 277–85). Referring to police shootings, the rights of children in care and the right to health in psychiatric institutions, he mused at the absence of reference to human rights in public discourse in the Netherlands: ‘human rights disappear in the sense that they don’t figure in public and political debate, even when they are relevant’ (ibid.: 278). Those who frame social problems in the Netherlands as human rights violations, he said, can count on ‘vehement, and often surprised, responses’ (ibid., 277). The governmental response to the ombudsman’s speech was furious, with the Vice President fuming that the remarks were ‘irresponsible and improper’ (Kok n.d.: 3). Clearly, whilst human rights were a cornerstone of 1

INTRODUCTION: THE RIGHTS FOR OTHERS

Dutch foreign policies, they were deemed less suitable as a yardstick for domestic affairs. It is this latter paradox that this book seeks to describe and analyse: the contested home-coming of human rights as a discursive frame and thus a political resource in what are generally considered the most völkerrechtsfreundliche countries in the world (Fleuren 2010: 245–266). It draws on a growing body of socio-legal studies on the role of international human rights in domestic policies, and hopes to contribute to them in mapping the politics and the processes by which these rights acquire meaning – or not – within this particular setting. For, whilst there is a great deal of literature on the rise of ‘rights talk’ elsewhere, more sociolegal analyses of civil law countries like the Netherlands invariably focus on human rights as a component of foreign policy instead of their domestic relevance. An analysis of the interrelationship between institutions, actors and legal consciousness in the encounter between domestic problems and international human rights can thus not only shed light on the puzzling paradox presented above, but also on wider theoretical questions on the way in which human rights acquire meaning. To start with, this introduction maps the rise of rights talk as a worldwide phenomenon and an object of socio-legal study and the way in which a country like the Netherlands has historically considered human rights as an export product but is increasingly confronted with the results of the expansion, external enforcement, the emancipation and the domestication of rights talk. It discusses the theoretical insights on the ‘home-coming’ of human rights that guide the inquiry and the multitude of methods needed to understand why international human rights acquire (or fail to acquire) meaning in addressing social and political problems in the Netherlands, and what insights this brings to the broader sociology of rights. THE RISE OF RIGHTS TALK

Human rights, it has been said, have become ‘global esperanto’ of our age, a ‘moral lingua franca’ in times of secularism, in which globalization is paired with fragmentation. Even Eleanor Roosevelt, when she famously stated that the Universal Declaration of Human Rights could well become ‘the magna carta of all mankind’ could not have foreseen the extent of the four key forces that characterize the place of rights in global politics today: their expansion, their external enforcement, their emancipation and their domestication. 2

THE RISE OF RIGHTS TALK

If one considers international human rights, as this book does, as those fundamental rights laid down in international treaties, their expansion is remarkable. The seeds sowed in the non-binding Declaration of 1948 have germinated into a fully fledged human rights regime, laid down in hundreds of international and regional treaties and a host of non-binding documents complemented by monitoring bodies and other agencies with the task of scrutinizing their interpretation (Donnelly 2003). From classic checks on state abuse of power, human rights have spilt over into the social, the economic and the cultural, and increasingly address the behaviour of individuals and companies. Whether it concerns combating poverty, insecurity, environmental degradation or disease: virtually all global problems have over time been reframed as rights violations with particular policy consequences attached to them. Whilst the first decades of the global ascent of human rights were mainly characterized by standard-setting, with lawyers and bureaucrats industriously negotiating and agreeing upon what many at the time still considered ‘nonsense on stilts’ – the real politics, after all, took place elsewhere – the end of the Cold War changed all this. By the end of the nineties the shifts in the global card play allowed for an increase in the actual external enforcement of human rights, whilst ethnic warfare provided an additional reason to make rights into realities. From Rwanda to Kosovo to East Timor, the global community that had long been an abstract presence became a palpable reality, and the language it spoke was that of universal human rights (Brysk 2002: 311; Fukuyama 2004). Thus, whilst the old ideal of a ‘world court’ is still far away, regional human rights courts like the ECtHR – boosted by the accession of former East Bloc countries – demonstrate what its work could look like. Also, the ICC is a prime example of a case where countries have agreed to partly shed their sovereignty in order to strengthen the ability of the world community to try individuals for those crimes that ‘shock the conscience of mankind’. Doctrines like the notion of universal jurisdiction and the responsibility to protect, furthermore, increasingly successfully call on other states to take action when individuals shielding behind the sovereignty of another state commit international crimes. Additionally, a growing number of treaty bodies have a monitoring and individual complaints procedure that allows for international scrutiny of domestic politics and provides findings that – at the very least – can be raised within domestic politics. A striking element here is the emancipation of rights talk. Human rights, in spite of brave attempts to point out their mixed descent and 3

INTRODUCTION: THE RIGHTS FOR OTHERS

links to all religious and cultural families in the world, were dominantly thought up in eighteenth-century parlours and laid down in writing under the auspices of western powers (Ishay 2004). These days, however, they are promoted in the streets of Kolkata and Kampala, functioning as a weapon of the weak and are directed not only towards the national governments, but also towards the international community at large. Just as in, for instance, UN monitoring mechanisms, Ghanaians, Peruvians and Indians hold to task the Americans, the English and the French in the language they once laid down (Simmons 2009). The arrival of rights talk in all corners of the world has an institutional component as well. An important marker in the move from standardsetting and external enforcement towards the domestication of human rights lies in the Vienna Declaration of 1993 (Cardenas 2009: 76–91). Since then, the Office of the High Commissioner on Human Rights has opened field offices in countries all over the world and Special Rapporteurs carry out country visits, as does the Council of Europe Human Rights Commissioner. A crucial linchpin in the ‘domestication of the international law’, over one hundred national human rights institutions worldwide seek to bridge international standards and their implementation at the national level (Carver 2010: 1–32). In addition, human rights education both in- and outside of formal education has increasingly been implemented in all corners of the world. HUMAN RIGHTS EXPORTISM

It was against this background that, in April 2008, the Netherlands underwent the first Universal Periodic Review of its human rights situation by the Human Rights Council. As one of the oldest democracies in the world, ranked third on the 2012 human development index, with a score of 0.95 for ‘political stability and absence of violence’ in the World Bank’s 2008 governance indicators, a solid welfare state and 16 million people ranked amongst the happiest in the world, the country had long pleaded for such an integrated human rights test. Once the Human Rights Council agreed to the procedure, the Netherlands had offered to be part of the first batch to undergo it, with civil servants working overnighters to compile the report (Human Rights Council 2008). Fearful of critiques of the anti-Islam film Fitna that had just been released, the cabinet had asked a young female Justice Minister of Turkish descent to chair the fifteen-person Dutch delegation. She, as was later smugly reported to parliament, ‘indicated that the government 4

HUMAN RIGHTS EXPORTISM

also recognizes problems, takes active measures to solve them and is open to recommendations and suggestions . . . thus enabling a dialogue that was evaded by other countries’.1 The main concerns raised during the review by countries ranging from the Holy See to Canada to Bangladesh concerned xenophobia and polarization, excessive force in repatriating migrants, the legality of prostitution, discrimination against migrants, sexual abuse of children and child pornography, the position of women in top positions, the lack of a national human rights institute, the fire in a detention centre, segregation of schools and the health rights of asylum seekers. The few newspapers to write on the review noted with some bemusement how Belarus had commented on the torture situation in the Netherlands, and were told by the minister that ‘instead of wagging our finger we now show vulnerability. If other countries see this, they might dare do so as well.’2 The recommendations by the Human Rights Council – on all the fields mentioned above, were sent to parliament but never discussed there. If the term UPR did come up in political or public discussions after 2008 it concerned human rights violations in other countries.3 An interim report on the Dutch progress, that indicated which recommendations the government ignored and which it carried out, was never even sent to parliament. The civil servants who had worked on the report did, however, successfully offer their assistance to other countries who still had to undergo the review. To a country like the Netherlands, this book argues, human rights are above all an export product, a moral cornerstone of foreign policy. This human rights ‘exportism’ should not be mixed up with the ‘exceptionalism’, often invoked to describe the American attitude towards human rights instruments (Ignatieff 2005; Van der Vyver 2001: 775–832). Ignatieff has identified three types of American ‘exceptionalism’: ‘exemptionalism’ (the support for treaties as long as the country concerned is not subject to them), double standards and legal isolationism. The Netherlands, in contrast, has ratified virtually all of the main UN human rights treaties4 and has a 1 2

3 4

Letter to the House of Representatives (4 September 2008, 31 200 V, 61). ‘Hoe Nederland mensenrechten “net niet” naleeft: “Vingertje heffen is voorbij”’ (How the Netherlands does ‘not quite’ live up to human rights ‘the time for wagging fingers is over’), NRC Handelsblad, 16 April 2008, p. 1. Search of parliamentary publications and lexisnexis, as of April 2008, conducted January 2012. With the International Convention on the Protection of All Migrant Workers and Member of their Families (1990) as an exception. The Convention on the Rights of Persons with Disabilities was signed but not yet ratified by 2012.

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INTRODUCTION: THE RIGHTS FOR OTHERS

uniquely monist constitution which recognizes the supremacy and the direct effect of human rights law. Nevertheless, the main motivation in developing international human rights law and determining its place in the domestic order seems to be to ensure its realization elsewhere: treaty ratification is not only a means to look good, but primarily intended to do good (see also Hathaway 2002: 111). A brief excursion into the history of the Dutch engagement with international human rights can illustrate this point. This engagement, in the decades after the Second World War, moved from hesitant first steps to the Netherlands becoming widely recognized as being in the forefront of the struggle for the establishment of human rights internationally. The country’s initial attitude towards the founding of the United Nations had been lukewarm. This was partly because of the fear of a repeat of the League of Nations, an experience that had fulfilled few of the hopes bestowed upon it by the Netherlands in joining in 1920, that ‘the League will contain the gems of a true organization of peace and law for all peoples’.5 The Minister of Foreign Affairs Schaper described the meetings in San Francisco as ‘dead boring’ and ‘endless blabla’, destined only to seal the hegemony of the great powers by means of a bombastic document with no actual content (Malcontent and Baudet 2003: 79). The fear that the new organization would simply not go far enough in curbing the power of the great nations led the Netherlands to advocate an insertion in art. 1 of the UN Charter, stating that the organization would operate with due regard for principles of justice and international law (Van Ditzhuyzen et al.; Schrijver 2010: 209–44).6 When the Dutch learnt of the work of the Economic and Social Council to set up a commission that would look into the formulation of human rights they attempted – to no avail – to put forward a candidate, a woman who had been active in the field of minority rights before the Second World War.7 In addition, the Netherlands instituted a special national commission to offer advice to the Human Rights Commission. In line with earlier Dutch thinking, this Commission would argue in favour of an organization that could come up with binding decisions in case of conflict. A High Commission, consisting of independent experts and placed under the International Court of Justice, could play that role. 5

6

7

6

House of Representatives, debate on the 1921 national budget, III, Memorie van Antwoord (17 December 1920, 9). Charter of the United Nations, San Francisco, 26 June 1945, in force 24 October 1945, 1 UNTS xvi. This was Mrs Bakker-van Bosse.

HUMAN RIGHTS EXPORTISM

At the same time, the Commission’s comments reveal the degree to which it considered the Declaration to be a utopian ideal: in discussing the limitations of rights it stated that ‘a Declaration should state the ideal situation and there is no place for limitations of a situation in which the ideal cannot be reached yet’.8 The Dutch contribution to the Universal Declaration of Human Rights thus took place during the UN General Assembly in 1948 in Paris. Here, the Dutch delegation – consisting partly of parliamentarians – operated rather clumsily. Instructed by a motion in the Senate to include reference to man’s divine origins in the preamble, it spent a great deal of time seeking to garnish support for this viewpoint, even though the Commission on Human Rights chaired by Eleanor Roosevelt had long decided to leave this out, so as not to ‘rouse the opposition of delegations representing more than half of the world’s population’.9 In addition, the largely Catholic delegation, consisting of amongst others the pastor Beaufort and M. Klompé, who would later become the first female Dutch minister, spoke out strongly in favour of the family, for instance through opposing the notion of equal rights for legitimate and illegitimate children as this would constitute ‘an inducement to beget and bear children out of wedlock’.10 A great deal of the delegation’s energy went into proposals that sought to defend Dutch particularities. The prohibition of Catholic processions in the Netherlands, for instance, spurred the Dutch delegation to argue that the right to assemble should not include the right to hold pageants or processions in the streets.11 Similarly, the Dutch interpretation of the freedom of education as the right of parents to select where their children would be educated – a right that had been battled over in the Netherlands and codified in the Dutch Constitution in 1917 – brought the Dutch to propose a successful amendment explicating this.12 And 8

9

10 11 12

Report of the National Commission of Advice on Human Rights, National Archives, Ministry of Foreign Affairs. The motion was proposed in the Senate on 24 June 1948 by delegate Van Voorst tot Voorst. Discussion: E/800, report of the 166th meeting, Palais de Chaillot, Paris, 29 and 30 November 1948, comments by Mr Davies. E/800, report of the 144th meeting, Palais de Chaillot, Paris, 18 November 1948. Commission on Human Rights Drafting Committee, 21 May 1948. E/800, report of the 146th meeting, Palais de Chaillot, Paris, 19 November 1948. This particular interpretation of the right to education, much desired by the religious political parties, was incorporated in the 1917 Constitution in the Netherlands in exchange for universal suffrage, and brought an end to the schoolstrijd – the schoolwars – fought out throughout most of the nineteenth century.

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whilst the Netherlands did put in an amendment to grant equal pay for equal work for men and women workers, it also sought to defend its position that married women should not be allowed to become civil servants.13 The delegates’ ability to negotiate was also severely limited by the Dutch reluctance to let go of the Indonesian colonies. As a Dutch parliamentarian reflected in 1947: ‘Stopping the war in Indonesia would truly contribute to peace: only then will we again be able to speak about human rights and their defence in the world.’14 The Dutch attitude was thus partly caused by its domestic concerns, and partly by the fundamental belief that what the world needed was a binding convention. Partly as a result of the formulation of the UDHR the Dutch did discuss the consequences of the efforts towards codification of fundamental rights at the international level for the national Constitution. As Prime Minister Drees put it: ‘The special attention [for the formulation of human rights] is understandable after all that the world has seen and sees in terms of denial of these rights . . . The question to what extent these rights in our constitution need to be reformulated, and whether – in addition to freedoms – a number of social rights need to be constitutionally guaranteed will be discussed by a Constitutional Commission’ (quoted in: Pelle 1998). The first Constitutional Commission to look into these matters, however, would be divided over the issue of social and economic rights. It would also hold that the respect for certain rights in the Netherlands was so self-evident that there was no need to codify them; when the only woman on the commission argued for inclusion of the right to equality – in line with international human rights law – the chairman stated that there was no need for the Netherlands to explicate this right: ‘the international conventions aim to elevate backward countries’ (Pelle 1998). Whilst the government was, as will be described later, just as hesitant to sign the binding ECHR, the Dutch did start to play an active role in stimulating human rights as an integral part of the international legal order in the 1960s and the 1970s (Castermans-Holleman 1992; Reiding 2007). In the 1960s, for instance, the Dutch initiated negotiations on the setting up an individual complaints procedure to the CERD and the ICCPR (Baehr and Castermans-Holleman 1990: 23–34). Under the 13

14

8

Discussion of the budget for the Ministry of Foreign affairs, House of Representatives, 1949, and E/800, report of the 150th meeting, 20 November 1948. House of Representatives, Delegate Schoonenberg (22 December 1947, 32nd meeting).

HUMAN RIGHTS EXPORTISM

influence of proactive civil servants, a progressive government and a supportive population, human rights would become more and more of a cornerstone of foreign policy in the 1970s, resulting in a fully fledged policy memorandum on the issue (Ministry of Foreign Affairs of the Kingdom of the Netherlands 1979; Egeland 2004; Egeland 1984; Hellema 2009). All this was in line with a report issued by a progressive think-tank in the early 1970s, that emphasized the role that the Netherlands had to play in changing the world, with international law as the main lever towards this change.15 In an influential article in 1973, politician B. de Gaay Fortman set out the reasons why the Netherlands should assume the role of ‘guiding nation’ (gidsland) on the world stage. Such a guiding country, he argued, would have to be small. In addition, the Dutch population density and its interrelationship with the global economic order strengthened the need for propagating a just international order (De Gaay Fortman 1973: 112). The term ‘guiding nation’ would continue to surface in subsequent political debates, for instance in the 2010 policy report by the Scientific Council for Government Policy, titled ‘Attached to the World’, that argued for a strong Dutch role in the ‘niche market’ of developing the international legal order (Wetenschappelijke Raad voor het Regeringsbeleid 2010). This emphasis on both the moral and the market-related reasons to strengthen international (human rights) law is in line with political analysis of what, over the years, has motivated the Dutch ‘internationalist idealist’ tradition, with its emphasis on the legal machinery to enforce norms (Castermans-Holleman 1992; Voorhoeve 1985). Voorhoeve, who distinguishes this tradition in addition to the maritimecommercial and the neutralist–abstentionist tradition in Dutch foreign policy, sees it as a combination of seven factors: naivety, pacifism, legalism, moralism, anti-militarism, weak patriotism and supranationalism (1985). Many historians have pointed out how developing the international legal order was very much in line with Dutch self-interest, as ‘Plutus sits on Pax’s lap, wealth is a child of peace’ (Van Ditzhuyzen et al. 1998: 147). A small player like the Netherlands, which earned much of its income on the world seas and in trade, only stood to benefit from international rules and institutions to enforce them 15

The Mansholt Commission, consisting of the Partij van de Arbeid (Labour Party), Democraten ’66 (Democrats ’66) and Politieke Partij Radicaten (Political Party of Radicals). See also Kennedy, Nieuw Babylon in Aanbouw: Nederland in De Jaren Zestig. (Amsterdam: Boom, 1995).

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INTRODUCTION: THE RIGHTS FOR OTHERS

vis-à-vis the larger countries (Reiding 2007; Kuitenbrouwer 1996: 156–201; Kuitenbrouwer 1999: 183–200). In addition to analysing the Dutch motives, historians have also pointed at the gaps between principles and practice in the development of international law. The Netherlands might be able to point to Erasmus and Spinoza in setting out a tradition of tolerance, but it was also amongst the largest slave-traders in the world, and one of the last western countries to abolish slavery. In colonies like the Netherlands Indies the notion of ‘ethical politics’ did not keep the Netherlands from committing excesses like torture and the killing of civilians by special units in the late 1940s (Kuitenbrouwer 1996: 156–201). In an overview of the actual Dutch human rights record, Malcontent concludes that ‘the rather pale contribution of the Netherlands to actually furthering the international legal order becomes even more colourless if one specifically takes human rights into account’ (2003: 75). Whether genuine and effective or not, human rights have played a key role in framing and focusing Dutch foreign policies since the 1970s. That this is much less often the case where it concerns domestic policies becomes clear when one analyses the subjects pertaining to which human rights were raised in parliament and in the newspapers over the past fifteen years. An investigation into the context in which the notion of human rights was raised in the Dutch House of Representatives over the past decades, for instance, leads to the following insights.16 Human rights were mentioned much more often in 2010 than they were in 1995.17 In nearly 73% of the situations in which human rights were raised (1,639 documents), the concern related to foreign policy.18 Human rights are most often referred to in documents sent to parliament by the government, more than in parliamentary discussions, and in questions addressed to the government. Among the ministries that refer to human rights, 16

17

18

10

All policy documents in the Dutch Hansard, the ‘officiele bekendmakingen’ for the years 1995, 2000, 2005, 2010 were screened for reference to the general term ‘human rights’. This led to 1,639 documents, which were labelled according to the Ministry responsible, the policy field at stake, and the type of parliamentary documentation. The aim of this research was to acquire insight into the relative frequency of the invocation of the term human rights: in foreign or domestic policies. In 574 as opposed to 152 documents. In general, this reflects an increase in parliamentary documentation; the relative attention given to human rights increased from 2.27 to 2.75%. Of the 1,639 documents analyzed 59.1% of the documents were directly related to foreign policies, 13.7% to budgeting (and thus also coupled to foreign policies). Other fields in which human rights were raised were: integration and migration (49 documents, 3% of the total), corporate social responsibility (1.4%), medical affairs (1.6%), terrorism (2.3%), justice and migration (1.6%), the Constitution (1.3%), sustainable development (0.9%).

THEORIES OF HOME-COMING

Foreign Affairs and Justice invoke the notion most often, whilst the Ministry of Agriculture, the Ministry of Housing, Spatial Planning and the Environment and the Ministry of Education, Culture and Sciences hardly ever refer to the general notion of human rights in their policy documentation and debates pertaining to them in parliament. Whilst the Netherlands might thus technically abide by many international human rights standards, these are hardly ever raised in connection with those social and political problems that do exist in the country. THEORIES OF HOME-COMING

Even if ‘human rights talk’, in the Netherlands, is mostly destined for others, it does also slowly make its way into national politics. An illustration here is the setting up, of a Dutch national human rights institute, nearly twenty years after the adoption of the Paris principles that called for these institutions, and with over one hundred predecessors in other countries. The few parliamentarians that made it to the debate on the bill concerned, on a Tuesday morning in 2011, virtually all exclusively emphasized the importance of the institute for Dutch foreign policy: ‘this is important for our lead position in the human rights field’, ‘a human rights institute is in line with Dutch standing’ and ‘our role is to play first, and not second violin here’.19 One member of the parliamentary opposition suggested, however, that – even if rights violations were generally not a problem in the Netherlands – ‘there might still be a few dots to put on the i’s’. It is the question as to how international human rights sporadically do come to play a role in discussing which ‘i’s to dot’ and how to do so in a country like the Netherlands that guides this investigation. With its focus on the mobilization of international human rights in a specific social and cultural context, it can draw on an ever-expanding socio-scientific literature on international rights. Over the past years, historians, sociologists, anthropologists and political scientists have described the processes by which this universalist discourse takes on meaning in a variety of settings (Goodale 2009; Moyn 2010; Simmons 2009; Somers and Robert 2008: 385–425). This literature, however, 19

House of Representatives, debate on the Bill concerning the Foundation of the National Human Rights Institute (Wetsvoorstel Oprichting van het College voor de Rechten van de Mens) (30 March 2011, 32467).

11

INTRODUCTION: THE RIGHTS FOR OTHERS

largely discusses common law countries and the global South. In addition to a longstanding interest in the politics of rights in general (Epp 1998; Glendon 1991; Scheingold 1974) Anglo-Saxon scholars have increasingly focused on the place of human rights in their societies. In a volume on Bringing Human Rights Home, Soohoo et al. charted the history of human rights in the United States, and the movement from civil rights to human rights as a lever for social change (Soohoo, Albisa, and Davis 2007) Similarly, Merry notes the lack of a human rights frame in many discussions in the ‘imperial homeland’, stating that ‘this is an ideology for the export, not for domestic consumption’ (Merry 2009: 50). In the United Kingdom, the adoption of the Human Rights Act lead to a flurry of socio-legal scholarship on its history, background and effects, as well as the backlash against the notion of human rights that it gave rise to (Halliday and Schmidt 2004a). Similarly, there is a wealth of scholarship on the role of human rights in social and political struggles in the global South. Here, the emphasis is often on the clashes between universal human rights and local customary and religious norms as well as the way in which these social fields influence one another (An Na’im 2002). In addition, the contested role of human rights in the empowerment of social movements in the South has received a great deal of attention (De Sousa Santos and Rodriguez-Garavito 2005; Rajagopal 2003). As Schmidt and Halliday set out, there is, in general, a gap in human rights research ‘seeking focused empirical study of human rights implementation at the domestic level of developed nations, where that includes an interest in institutional and individual behaviour deeper than legislatures or constitutional courts’ (Schmidt and Halliday 2004: 3). This applies even more to code law countries than to common law countries. One exception is the study of national human rights organizations by Mertus, in which she describes the ‘tough battle’ fought by the Danish Human Rights Institute to make the discourse of practice of human rights relevant to its constituents, who deemed human rights a concern for ‘over there’ and not ‘right here’. The Institute was most successful when it reframed human rights issues to fit with domestic concerns (Mertus 2008). Another exception is Tuomisaari’s interesting analysis of the human rights community itself, which focuses conceptions of knowledge and expertise within the Nordic human rights community (Halme-Tuomisaari 2010). Nevertheless, it could well be that the dynamics of rights mobilization in ‘mature states’ (Halliday and Schmidt 2004a) in the civil law tradition 12

THEORIES OF HOME-COMING

differ from those in common law counterparts. The emphasis on parliamentary democracy, on codes – as opposed to case law – as the prime mechanisms of legislative change, the very different role of the judiciary in the balance of power and of rights in both legal consciousness and legal culture could well lead to dynamics in the home-coming of human rights that differ from those in other founding fathers of the international human rights regime. Although a comprehensive comparative study is not proposed here, the Netherlands can function as an example of such a country and thus enrich the socio-legal literature on ‘the home-coming of rights’. Rights: law, and much more than that Of course, the notion of international human rights asks for further precision. Operationally, this book will define international human rights as those fundamental rights enshrined in international treaties (Donnelly 2003). Substantively, however, there is a lot more to say. Central features of all fundamental rights are the fact that their normative power does not derive from their mere codification and institutionalization, but also from their assumedly ‘suprapositive’ character (Neuman 2003: 1865). Human rights, in addition, have a number of features in addition to the fundamental rights, here called constitutional rights. They, as Gardbaum has convincingly argued, give states an interest in how other governments treat their populations, create an external stage for the development of constitutionalism, add an international dimension to the separation of powers and – most notably – enshrine the rights of human beings instead of citizens (2009: 253–254). Human rights are law, but also much more than that. The first part of this statement is often forgotten by social scientists, whilst the second part tends to be overlooked by legal scholars. Let us first focus on the legal qualities of international human rights. The time that lawyers could do away with international human rights as ‘nonsense upon stilts’ is long gone (Claude and Weston 2006: 18). The success of, for instance, the European Convention on Human Rights in all fields of law in the Netherlands and all other member states of the Council of Europe is a case in point. Recognizing the legal potential of international human rights also entails – as this book will – taking seriously the more technical discussions on the direct effect of international human rights law, its supremacy and the core content, positive obligations and horizontal application related to specific rights. 13

INTRODUCTION: THE RIGHTS FOR OTHERS

There is, at the same time, an enormous variance in the types of obligations that the hundreds of rights laid down in international treaties put on states and, increasingly, on other entities (as duty-bearers) and the rights that they grant to, primarily, individuals (as rights-holders). The flat prohibition of torture as enshrined in the ICCPR and CAT, for instance, differs strongly from the state obligation to modify the social and cultural conduct of men and women in CEDAW, or the right to shelter as laid down in the ICESCR. Some human rights, as Schmidt puts it, are more of a damp squib than others (Halliday and Schmidt 2004a). In general terms, social and economic rights will call for positive action, and extensive resources, whereas civil and political rights are generally easier to implement (Galligan and Sandler 2004: 23–55). Next to the fact that the actual legal power of specific human rights varies enormously, human rights are much more than law alone. Human rights have increasingly become a language in which to state claims, an important political resource for reasons that go much further than their legal power alone. As a discursive frame, they enable domestic actors to link their social and political concerns to global discourses and the resources that underpin them. Frames, after all, are ways of ‘packaging and presenting ideas that generate shared beliefs, motivate collective action and define appropriate strategies of action’ (Merry 2006b: 41). Next to law, human rights point at values, and at good governance (Merry et al. 2010). Rights talk, as many authors have pointed out, is increasingly ‘a core aspect of a new global, transnational culture, a sui generis phenomenon of modernity’, which entails specific constructions of the ‘self and sociality, and specific modes of agency’ (Cowan, Dembour, and Wilson 2001: 12). Mapping how rights acquire meaning The wide range of duties embodied in international human rights law combined with the fact that much of the power in rights talk is not limited to the legal realm, make any effort to measure their ‘homecoming’, or – more scientifically – their ‘implementation’, ‘enforcement’ or ‘mobilization’, a tricky endeavour. Apart from the legal responses to rights obligations, there are also the social and political responses to map out (Landman 2009: 46–58). Whilst lawyers will generally understand enforcement as the passing of enabling legislation and the absence of violations of particular rights, social scientists have increasingly developed other methods for measuring rights implementation. In one of the most comprehensive studies of why states commit to and comply with 14

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international human rights obligations, for instance, Simmons measures treaty compliance in referring to statistical data on the death penalty, educational opportunities and immunizations (Simmons 2009). This is in line with the expanding field of human rights impact assessment, that calls for ‘events-based data, standards-based measures, survey data including public opinion research’ (Landman 2009: 55). But even such broad data do not capture the mechanisms and the processes by which human rights acquire meaning. Instead, any social constructivist analysis should emphasize ‘the social life of rights’, the role that international human rights play in social and political struggles in a given context, and how and why they are invoked by specific actors as a discursive frame to provide meaning to the situation at hand and suggest solutions to it (Goodale 2006b; Short 2009: 93–108; Wilson 1997: 3). Cowan put the challenge that rights put to the social sciences as follows: it is time that ‘more attention is paid to empirical, contextual analyses of specific rights struggles. This intellectual strategy allows us to follow how individuals, groups, communities and states use a discourse of rights in the pursuit of particular ends, and how they become enmeshed in its logic’ (Cowan, Dembour, and Wilson 2001: 21). Studying rights implementation as a process should not only focus on the domestic politics pertaining to human rights but also calls for an eye on the extensively theorized relationship between the ‘two-level playing field’ of the national and the international in this respect (Putnam 1988: 427–460). This implies an understanding of what motivates governments to ‘sign away sovereignty’ in the first place by means of a treaty. Some authors have suggested how international human rights treaties can be used to lock in certain policy preferences for the future, when the politicians concerned are long out of power but their countries still bound to the treaties (Keohane, Moravcsik, and Slaughter 2000: 457–88). Others have emphasized the ‘expressive’ element in ratification; how ‘the expressive benefits that countries gain from the act of joining the treaty will be enjoyed to some extent by all those who join, regardless of whether they actually comply with the treaty’s requirements’ (Hathaway 2002: 101). As suggested above, human rights exportism and the desire to do good elsewhere could provide an additional motivation for signing treaties. Whilst the initial motivation of various actors to push for or sign a specific treaty matters in what subsequently happens within the domestic context, so does the relationship between the rights concerned and ‘local legal consciousness’ and legal culture (Banakar 2004: 165–84). 15

INTRODUCTION: THE RIGHTS FOR OTHERS

Whilst both are notoriously slippery terms, that run the risk of obscuring the constructed nature and the processual character of rights mobilization, suggesting fixedness where there is none, it is clear that those rights that reverberate with local understandings, deep-rooted traditions, cultural and religious beliefs stand a greater chance of acquiring meaning – even if at times not explicitly – than those beliefs which are alien to a given setting. Legal consciousness, here, should be understood as a ‘collective construction that simultaneously expresses, uses, and creates publicly exchanged understandings’, constituted ‘in relation to the legal processes available to people, the ideas and the practices of legal professionals and laypeople, and also discourses circulating nationally and internationally’ (Ewick and Silbey 1998; Hirsch 2002: 15). Additionally, it is important to distinguish the various mechanisms by which rights acquire meaning. From a schematic point of view, the global human rights regime can acquire meaning through a number of different, and often overlapping, mechanisms, each with different actors driving the process. At the most basic level a government can sign and ratify a human rights treaty, after which, in the Netherlands, it becomes part of domestic law upon promulgation. A more comprehensive effort can comprise reviewing existing legislation and policies that go against the human rights laid down in the treaty, and amending them where necessary. A step further would consist of the formulation of new policies destined to realize the treaty rights. In all cases, the government will be the driving force, though it may well be spurred to do so by civil society, parliament, specific governmental departments or – surprisingly often – influential individuals. A wholly different mechanism of enforcement is via human rights litigation, in which lawyers demand, and judges order, that states comply with treaty obligations. Here, scholars have often pointed out the way in which successful litigation depends on factors like approval by parliament and the executive, vulnerable defendants and responsive judges, as well as support amongst the public at large (Tolley 1990: 617–38), though they have also pointed out the limits of rights litigation (Rosenberg 2008). A next phase in the continuum would be the situation in which the right in question, and the treaty in which it is laid down, actually become an important framework for public and political discourse on a given social problem, and a rallying point for a variety of actors seeking to address that problem. Finally, the right in question can be considered to have (partially) impacted upon society if infringements of that right actually decrease, as is often measured by human rights indicators. 16

THEORIES OF HOME-COMING

The role of actors Whatever the politics and the processes of rights implementation, it is the people behind them and the organizations and networks in which they participate that play a key role. In theorizing the role of actors in rights implementation, the emphasis should first be on the executive. Far from being an amorphous entity, any government consists of different departments with often conflicting interests: the ministry of foreign affairs could well be motivated to ratify treaties out of foreign policy concerns, whilst other departments could seek to limit external influences on policy. Whilst the – supposedly – highly technical work of treaty negotiation is often the work of civil servants with a legal background, the political climate in which they operate and the political coalitions from which they receive their orders can differ dramatically (Simmons 2009). In addition, parliamentarians can theoretically play an important part in either pushing for or obstructing the implementation of particular treaty obligations. Often the drivers, whether within the executive or within the legislature, are individuals, who might or might not work together with civil society. Davis, for instance, describes the strategy of ‘sneaking human rights in’, and how CERD was craftily introduced into municipal legislation in San Francisco thanks to the legislative skills of one progressive American quoted as saying: ‘International law is complicated and not a lot of people understood it, so they just said “we are not going to vote either way”: it only got attention once it was on the books’ (Davis 2007: 274). This legal technical character of human rights law also offers expert legal networks a privileged position in their implementation. The human rights community, for instance, has recently been subject to a number of critical studies, with Tuomisaari concluding that the Scandinavian human rights community is predominantly Northern and masculine, with importance for the inclusiveness of its activities (Halme-Tuomisaari 2010). Kennedy even suggests that the human rights community is ‘part of the problem’, by – amongst others – formulating human rights concerns too narrowly, generalizing too much, promising more than it can deliver and creating a non-effective bureaucracy (Kennedy 2002: 101–25). Here, a point of criticism concerns the ability of human rights experts to ‘think up’ instead of down, and to couple domestic concerns to international standards. Where human rights are not ‘snuck in’ via technical provisions, but enter the stage via public and political discourse, this is often due to the 17

INTRODUCTION: THE RIGHTS FOR OTHERS

work of civil society and advocacy networks. Human rights frequently provide a rallying point for domestic and international groups working on specific themes, often even named after treaties or specific articles; the Coalition on the Rights of the Child, the CEDAW network, the Dutch non-discrimination coalition art. 1 or the international free expression coalition labelled art. 19 after the relevant ICCPR provision. Risse has described the important role of transnational advocacy networks in ‘norms socialization’, and how – in particular – the interaction between international NGOs, other states and domestic society can create a ‘boomerang’ pattern of influence, with human rights spiralling into the domestic order (Risse, Ropp, and Sikkink 1999). These networks can link less powerful actors, with local concerns, to global cosmopolitan networks, providing a global language for their concerns and a great deal of experience in how to bring them successfully to the public domain (Merry et al. 2010). In these processes, too, people are key, for instance in their role as translators between the global and the local (Merry 2006a). For civil society (coalitions) applying a rights-based framework to obtain social goals, can be truly empowering. Ideally, rights motivate, mobilize and legitimate collective action, advance aspirations, demobilize antagonists, transform the terms and the nature of the debate and fit within favourable institutional venues (Miller 2010: 915–31). They also link local struggles to universal notions of justice, and struggles elsewhere. Nevertheless, rights-based claims are also invoked in what are often highly unequal power relations, both in- and outside advocacy coalitions. In addition, public funding, internal interests and pure chance can lead civil society to adopt certain rights agendas whilst completely neglecting others (Clifford 2008). In a broader sense, many scholars of rights have also emphasized how framing social and political problems in terms of rights also entails losses. Rights talk, for one, tends to ‘narrow or limit the discursive resources available to civil society groups by suppressing alternative claims rooted in labor-based organizing, nonalignment or nationalism’ (Massoud 2011: 17). This is in line with earlier critiques of rights talk as overemphasizing the interests of the individual and standing in the way of a broader balancing of competing interests in the public sphere, and leading to a judicialization of politics (Glendon 1991; Goldstein et al. others 2000: 385–99). The domestication of rights, others have noted, can also lead to its ‘taming’, and thus the loss of its revolutionary potential (Halliday and Schmidt 2004b). 18

APPROACHES

The most vehement strand in the critique of international human rights as a frame for social and political action, however, is directed towards the supposedly universal nature of these rights. Since its inception, the UDHR has faced philosophical critiques of the Western nature of rights and demands for cultural relativism. This can currently be seen in the work of authors who primarily consider rights talk as a form of neo-imperialism, functioning within the Enlightenment paradigms of modernity and rationality (Douzinas 2000; Moyn 2010). This need not, however, entail the wholesale rejection of rights talk: Rajagopal, for instance, calls for the ‘de-elitizing’ of international law by writing subaltern voices into it (Douzinas 2000; Moyn 2010; Rajagopal 2003). Rights resistance exists, however, not only amongst philosophers but also in political and public debates worldwide. In an empirical sense, this resistance can be understood as being closely related to the constitutional pluralism that characterizes today’s world. Lawyers use the notion of pluralism descriptively, and consider the coexistence of various fundamental rights as an asset in ‘crystallizing’ the essence of core values (Halberstam 2009: 326–55). Legal anthropologists, however, have, in looking at ‘mutually constitutive normative orders’ interacting in unequal power relations pointed out the dialectics between these orders, including the way in which in which ‘subordinate’ systems subvert, resist and evade the dominant legal order. These processes of ‘glocalization’ can lead to an emphasis on ‘autochthony’, ‘indigeneity’ or ‘home-grown rights’ (Roudometof 2005: 113–35). Whilst such dynamics are visible in the rise of indigenous peoples’ movements worldwide, similar processes are at work in the resistance against the Human Rights Act and the call for a home-grown Bill of Rights in Britain and – as we shall see – in resistance against the European Court of Human Rights in the Netherlands (Pinto-Duschinsky 2011). APPROACHES

The aim of this book is thus not solely to understand formal legal compliance with international human rights law in the Netherlands, whether measured as treaty ratification or the absence of judicial reports on non-compliance. For one, this record is rather positive but says little about the relevance of human rights to social and political discussions. Neither is the aim to ‘measure’ human rights compliance, as is increasingly done by means of human rights indicators. The emphasis is rather on understanding how human rights do or do not come to play a role as a 19

INTRODUCTION: THE RIGHTS FOR OTHERS

discursive frame for particular social problems, and on understanding why and how, in a country like the Netherlands, this is the case. Against the theories described above, this calls for an emphasis on the legal framework, legal consciousness and legal culture and the role of different actors in mobilizing international human rights in domestic social and political discussions. In addition, the emphasis on the people, the processes and the politics at stake calls for the analysis of particular case studies, with an eye on the cases in which international human rights could have provided a discursive frame but did not, cases in which they were invoked and cases of rights resistance. Such an approach calls for a variety of research methods (Donnelly 2003). In the first place, it necessitates classic legal analysis of the laws involved (often overlooked in socio-scientific studies on human rights), their historical and doctrinal background and their interpretation in case law. At the same time, there is a need to understand legal consciousness, starting with knowledge of and attitudes towards human rights and the role of human rights in public discourse but also focusing on the ‘collective construction’ of such consciousness and its dynamics. Here, quantitative survey research combined with open-ended questionnaires and other forms of qualitative research form a starting point. Also, the focus on rights talk calls for discourse analysis and a study of parliamentary documentation and debates in the media. In addition, the focus on case studies, and the people, politics and processes involved, necessitates interviews and participant observation. In short, the material presented in this book is based on my full background not only as a lawyer and a political scientist, with a longstanding interest in legal anthropology, but also as a policy advisor and activist in the Netherlands over the past years, amongst others as a member of the human rights commission of the Advisory Council of International Affairs, a member of the Constitutional Review Commission and as the Chair of the Netherlands Platform on Human Rights Education. I chaired, for instance, the handing out of the human rights tulip described above, spending much of the reception afterwards in convincing parliamentarians to support human rights education in the Netherlands, and discussing constitutional reforms in the Netherlands with the minister concerned over dinner. It is in the latter capacities and through participation in rights implementation in general that I have learnt more about the day-to-day politics of rights and the interactions between the actors involved than any preset questionnaire or series of interviews could have taught me. 20

OUTLINE OF THE BOOK

Using the results of a combination of distanced research and insights acquired through activism is, of course, not new. Ever since the statement of the American Anthropological Association on human rights in 1947, sociologists and anthropologists have reflected on their normative engagement with rights (Goodale 2009). Goodale, for instance, argues for ‘an essentially ecumenical anthropology of human rights, one that can tolerate, and indeed encourage, approaches that are both fundamentally critical of contemporary human rights regimes and approaches that are politically or ethically committed to these same regimes’ (Goodale 2006a: 5). Many sociologists of law have attained and described insights acquired in a more activist capacity (Halliday and Schmidt 2009: 74–186). Some legal anthropologists argue that ethnography not only always entails ‘devising complex relationships with people who are themselves positioned in social institutions, groupings and processes’, but that critically engaged activist research can actually lead to stronger analyses (Coutin 2002: 108–27; Speed 2006: 71). Nevertheless, this movement from being a fly on the wall to being one of the wasps in the room also poses methodological perils. The central aim of this particular study is to set out empirically the dynamics of rights implementation in the Netherlands. This calls for triangulation, substantiation and methodological thoughtfulness in presenting insights acquired in activities geared, initially, towards other aims. As Hynes put it: ‘Understanding and illuminating social change is the heart of sociological research and should not be confused with normative commitment, but be grounded in theoretical and methodological rigour’ (Hynes et al. 2010: 76). In addition, the careful selection of cases, becomes important. These cases should not only concern pressing social and political problems in the Netherlands, but also be representative of the dynamics of rights indifference, strategic invocation of human rights and rights resistance, driven by either the government or – via litigation – lawyers and civil society. OUTLINE OF THE BOOK

These considerations, then, inform the answer to the central question of how, when and why international human rights are invoked in addressing social and political problems in a country like the Netherlands, and what this means for the broader sociology of rights. The theoretical point of departure, that human rights acquire meaning in the interplay between laws, legal consciousness and legal culture, and the activities of 21

INTRODUCTION: THE RIGHTS FOR OTHERS

different actors, shapes the first part of this book, which in three chapters addresses each of these elements. Following the theoretical point of departure that ‘law matters’, Chapter 2 describes the privileged place of international human rights within the Dutch constitutional order, and its background. It sets out the incomplete rights catalogue, combined with the constitutional commitment to furthering the development of the international legal order, the possibility of transferring powers to supranational bodies and of concluding treaties – even those that conflict with the Constitution – without the need for express approval by parliament, the direct effect of (parts of) international human rights law and the possibility for review of acts against treaties (and not against the Constitution). All this, it is argued, accounts for a central place for international human rights in the Dutch constitutional dispensation. In Chapter 3, the overarching importance of international human rights from a legal point of view is juxtaposed with a lack of rights consciousness, and a distrust of rights talk, in social and political discourse, as it emerges from survey research. Whilst certain rights – most notably the freedom of expression, of education and of religion and equal treatment – play a role in the public imagination, many others do not. This lack of rights consciousness is illustrated by the way in which ‘citizenship’, in the Netherlands, is made specific in terms of civic values and assimilation, instead of understandings of rights. Rights also play a relatively minor role in legal culture, and the interaction between parliament, the executive and the judiciary in which ‘juridification’ of social issues is frowned upon and consensualism and an emphasis on the sovereignty of parliament prevail. Having set out the legal framework and discussed the role of rights consciousness and Dutch legal culture, Chapter 4 focuses on the actors involved in giving human rights meaning in this particular setting. Instead of presenting an abstract discussion, the chapter discusses (unsuccessful) attempts to implement human rights education and traces the role of different actors in the process: civil servants in different government departments, politicians with competing agendas, parliamentarians, non-governmental organizations, advisory bodies, the judges, the media and schoolteachers themselves. In doing so, the chapter provides a rich and in-depth understanding of the people, the politics and the processes involved in mobilizing human rights in this particular context. The next section of the book provides two examples of rights that are ignored: cases in which international human rights talk could have 22

OUTLINE OF THE BOOK

‘nudged’ public and political discourse in a certain direction, but which was barely invoked. One case played out via the courts concerned Geert Wilders’s utterances on Islam. This case is not only about the right considered most important by the Dutch – namely, the freedom of expression – but also about one of the main concerns raised by the international human rights community: the increase in xenophobia and polarization in the Netherlands. From a legal point of view, international human rights law puts far more emphasis on the responsibility that comes with the freedom of expression than does the Dutch Constitution. Chapter 5 not only describes how international human rights law was irrelevant to political and public discussions, but also introduces anti-immigration debates, renationalization, populism and the limited standing of NGOs as elements in the wider discussion on (the lack of) rights talk in the Netherlands. Chapter 6 on ‘rights ignored’ in policy discussions – as opposed to litigation – examines positive state obligations in combating domestic violence. Here too, international human rights law applies a different emphasis from domestic law. Taking a case in Zierikzee – the murder, long foretold, of two children by their father – as its point of departure, it investigates to what extent the authorities felt the type of responsibility set out in international human rights law, and places these findings in a broader discussion of the irrelevance of international human rights law to policy-making in the Netherlands. An additional question explored in this chapter is whether inclusion of the right to life in the national Constitution (which is not the case in the Netherlands) could have made a difference here. Chapters 7 and 8 looks into the strategic invocation of rights by, respectively, civil society/lawyers and the government, and the politics of the interplay between the domestic and the international. In spite of the international legal consensus in this field, socio-economic rights are denied direct effect in the Netherlands. Calling into mind Risse’s ‘boomerang’ theory, Chapter 7 discusses instances in which civil society advocacy and lawyers have sought to strengthen enforcement of socioeconomic rights via international monitoring bodies. The case of ‘no child put out onto the streets’, for instance, was successfully brought to the European Committee of Social Rights by Defence for Children, after which domestic courts confirmed the enforceability of the right to shelter. Mapping out the standpoints of the government and civil society, this chapter also critically discusses the politics of international enforcement and the limited potential of rights talk in this field. 23

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Next, turning back to policy-making, in particular in the field of three pivotal rights in the Netherlands – non-discrimination, the freedom of education and the freedom of religion – Chapter 8 discusses global-local interplay in securing minority rights. In the Netherlands, state-funded religious schools have long had the right to refuse gay teachers, although not merely on the grounds of sexual orientation. In negotiating the EU Directive on equal treatment, the Dutch government sought to ‘lock in’ this particular policy preference. In later years, this situation embarrassed Dutch international activities into promoting LGBT rights. This chapter discusses how the interplay between national and international politics shaped policies in this field. Finally, Chapter 9 discusses the interplay between laws, legal consciousness and legal culture, and the position of different actors in mobilizing human rights in a civil law country like the Netherlands, and relates the findings to the wider literature on the sociology of human rights.

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C H A P T E R 2

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

In June 2009, the 17th Dutch Constitutional Review Commission since 1848 was installed by both the Minister of the Interior and the Minister of Justice. In the stately National Archive, surrounded by images of the 1579 Union of Utrecht and the 1581 Act of Abjuration, both ministers reflected upon the Commission’s mandate. The Minister of the Interior was not only concerned about the ‘fragile consciousness’ of the Constitution in the Netherlands, but also about its limited use – ‘for protection of their fundamental rights citizens have to rely on the international legal order’.1 She quoted the concerns raised by the Council of State in defining the Commission’s mandate; could internationalization not also lead to encroachment upon fundamental rights? The Minister of Justice, in turn, openly wondered whether certain human rights which were only laid down in treaties, like the right to life, should not also be codified in the Constitution.2 Internationalism, defined here as openness towards the international legal order, is as much a defining feature of the Dutch constitutional order as is the lack of constitutional patriotism described in the next chapter. As the Council of State wrote in its advice on the mandate of the Commission: ‘In the 1950s the Netherlands opted for a system of direct effect of treaties and decisions by international organizations. In the years that followed responsibilities were brought to the international 1

2

Speech of the Minister of the Interior and Kingdom Relations G. ter Horst at the Installation of the Constitutional Review Commission, The Hague, National Archive, 9 July 2009. Speech of the Minister of Justice E. M. H. Hirsch Ballin at the same occasion.

25

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

level . . . For years, this was considered to be a positive thing, in line with the constitutional provision that requires the government to promote the development of the international legal order.’ Nevertheless, the Council had also continued to signal, ‘reason for concern for possible encroachment of the Netherlands’ democratic order by international cooperation outside the EU, which has deeper and deeper effects on Dutch society and is not always in line with fundamental principles of democracy and the rule of law’.3 This apprehension would turn out not to be shared by the legal scholars in the Commission. They would, instead, endorse those central features of the Constitution, features that will now be discussed and that are deeply rooted in Dutch history and determine the nation’s formal position towards international human rights law. They comprise a firm commitment towards building the international legal order and using the Constitution as an example for other countries to follow, with prevalence of treaties over constitutional provisions, a striking indifference towards the notion of sovereignty, the direct application of human rights in treaties combined with a limited rights catalogue in the Constitution, and the possibility of judicial review of acts only in respect of treaties. This internationalism and support for international human rights law is the common thread that runs through Dutch constitutional history, and was spun out by a small number of parliamentarians, politicians and civil servants. The following paragraphs will describe the main features of the Dutch constitution and the way in which it sets out relationships between government, parliament, citizens and the international legal order against their historical background. First, it is important to describe how the Constitution contains an incomplete rights catalogue, with many fundamental rights of the Dutch only spelt out in international treaties, or laid down in other laws. A section on the promotion of the international legal order discusses the relevant articles in the Constitution: Art. 90 calls upon the government to promote the development of the international legal order and encapsulates the history of a nation long involved with the development of international law, which has often presented itself as a ‘guiding nation’ in this field. Art. 91 calls for parliamentary approval of treaties but also allows for the signing of (human rights) treaties that violate the Constitution. The subsequent 3

House of Representatives, 31570–3, Advice of the Council of State on Constitutional Review, 2007–08, 21–2.

26

AN INCOMPLETE RIGHTS CATALOGUE

art. 92, providing for the transfer of powers to international institutions, caused the Netherlands to be classified as ‘less than a nation’. A further section discusses art. 93, which essentially turns individuals into subjects of international law, and art. 94, which allows courts to review acts against treaties (whereas they are not allowed to review acts against the Constitution) and thus makes them into agents of international law. This, brought together, provides insight into an important part of the legal framework that determines how international human rights can potentially acquire meaning in the Netherlands. AN INCOMPLETE RIGHTS CATALOGUE

One of the reasons why international human rights are relatively important in the Dutch constitutional order is the incomplete character of the Bill of Rights (Elzinga, De Lange, and Hoogers 2008). This does not mean that the codification of certain fundamental rights does not have a long and deep-rooted history in the Netherlands (Panhuys et al. 1978: 110). The freedom of religion, for instance, dates back to the war of liberation against the Spanish, was formulated at the pacification of Ghent in 1576 and reaffirmed with the Union of Utrecht in 1579. The Act of Abjuration, the formal declaration of independence from the Spanish king in 1581 famously stated that ‘God did not create the subjects for the benefit of the prince . . . but the Prince for the benefit of the subjects, without which he is no Prince’, and is rumoured to have inspired Thomas Jefferson in writing up the American Declaration of Independence (Lucas 1994: 189–207). The first constitution of the Netherlands, the Bataafse staatsregeling was proclaimed under French rule in 1798 and strongly inspired by the French Declaration of the Rights of Man and of the Citizen. Nevertheless, there were specific Dutch accents like the wide-ranging freedom of religion and the codification of the golden rule: ‘Do unto others as you would that they should do unto you’ (Kuitenbrouwer 1996: 156–201).4 Whilst certain civil and political rights like the freedom of the press were introduced in the 1814 and 1815 Constitutions the main foundations for the current Constitution were laid in 1848, by the liberal statesman Thorbecke. It was this Constitution that severely limited the powers of the king and introduced direct elections for the House of Representatives, the provinces and the municipalities. In addition, 4

Arts. 6, 19, 22 of the Bataafse Staatsregeling 1798.

27

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

the freedom of education and of assembly was enshrined in this Constitution. Discussing the codification of civil and political rights between 1795 and 1870, Kuitenbrouwer concludes that the ‘Netherlands was not behind other western European countries, but the introduction was more incremental and moderate than in other countries’ (Kuitenbrouwer 1996, 167). The end of the nineteenth century, however, was marked by a heated debate on the public financing of religious schools that would only be concluded with the pacification in 1917, during which the religious parties ‘exchanged’ support for universal suffrage for the guarantee of such funding. In 1948, Prime Minister Drees pointed at the consequences of the efforts towards codification of fundamental rights at the international level for the Dutch Constitution: ‘The special attention [for the formulation of human rights] is understandable after all that the world has seen and sees in terms of denial of these rights . . . The question to what extent these rights in our constitution need to be reformulated, and whether – in addition to freedoms – a number of social rights need to be constitutionally guaranteed will be discussed by a Constitutional Commission’ (quoted in Pelle 1998). The first Constitutional Commission to look into these matters, however, would be divided over the issue of social and economic rights. It would also hold that the respect for certain rights in the Netherlands was so self-evident that there was no need to codify them; when the only woman on the commission argued for inclusion of the right to equality – in line with international human rights law – the chairman stated that it would be shameful for the Netherlands to explicate this right: ‘the international conventions aim to elevate backward countries. In the Netherlands development will take place without such a provision’ (Pelle 1998). It would take over thirty years before the Dutch Constitution did come to include a selection of both civil and political and social and economic rights. The 1983 major constitutional revision brought the Netherlands a Bill of Rights, spearheaded by a brand new equality clause in art. 1 (Kortmann). The bill placed together civil and political rights codified over nearly two centuries: the right to vote (art. 4) and to petition (art. 5), the freedom of religion and belief (art. 7), the freedom of association (art. 8) and of assembly (art. 9) and the right to privacy (art. 8) also of one’s home (art. 12) and of correspondence (art. 13). It also introduced a new freedom: the inviolability of the body (art. 11). In addition, it introduced a set of social and economic rights, albeit as topics that are the ‘concern of the government’ rather than subjective 28

AN INCOMPLETE RIGHTS CATALOGUE

rights: employment (art. 19), the spread of wealth (art. 20), the environment (art. 21) and public health (art. 23). The only fundamental right that was not reformulated at all was the freedom of education including the state obligation to fund both public and denominational education that had been inserted in 1917 (art. 23). Many rights considered fundamental both in- and outside the Netherlands were thus not included in this bill. The right to a fair trial is one of them. The Constitution might codify related principles like nulla poena (art. 16), the principle of ius de non evocando (art. 17) and the right to legal assistance (art. 18) but the right to a fair, public and expedient hearing by an impartial and competent tribunal and the presumption of innocence are not elaborated (De Lange, Leeuw, and Mevis 2009). Neither is there mention of the right to life, the prohibition of torture and of slavery or, for instance, the right to family life. The provisions on social and economic issues lack, as stated, the status of subjective rights. Another striking feature is the absence of a general limitations clause: most rights can be limited by ordinary law, which means that the actual meaning of a specific right for a citizen will be set out in specific criminal, civil, administrative and other codes. This, in combination with the prohibition of judicial review of acts against the Constitution – not, as will be discussed later, against international treaties – also impacts upon the normative force of those rights that are included in the Constitution. In the context of this chapter it is interesting to consider what role the post-war codification of international human rights law played in setting the agenda for reforms in the Netherlands. Like Drees in the 1940s, the Cals-Donner Constitutional Review Commission in the late 1960s explained that the interaction with the international legal order was an important ground for review, together with national developments requiring a more active government (Commissie Cals-Donner 1969). The government, in motivating the constitutional revisions, also emphasized the international developments, outlining two legal spheres in permanent dialogue with and in support of one another, but of which ‘a fusion should not be the final aim’.5 According to the government, international human rights are directed towards a wide variety of social situations, and formulated as such. The fundamental rights in the

5

House of Representatives, Statement on the grounds of revising the articles on fundamental rights in the Constitution, explanatory memorandum, (1975–76, 13872–3, p. 12).

29

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

Constitution are more narrowly circumscribed, and contain ‘more precise guarantees deemed important within our own legal sphere’ (ibid.). This meant that a number of the new provisions were copied from, or formulated with reference to international human rights law. The grounds on the basis of which discrimination was prohibited, for instance, were copied from the ECHR, the ICCPR and other international instruments. The expansion of the freedom of religion to also include the freedom of belief was also motivated by pointing to international human rights law, as was the necessity of including some form of social and economic rights: it would be ‘peculiar’ if the Netherlands ratified the ICESCR but did not guarantee these rights in its own Constitution (Pelle 1998). At the same time, however, some rights were deemed superfluous in the Netherlands ‘because they are simply removed too far from the Dutch situation’.6 Here, the prohibition of slavery and of exile were given as examples. An outside reader of the Dutch Constitution as a catalogue of rights might be struck not only by its incomplete, but also by its sober character. There is no preamble, nor is there mention of sovereignty, the rule of law or democracy. ‘The new constitution lacks the revolutionary appeal of many other constitutions. It does not refer to concepts of state or society and does not formulate . . . aims of the state’ (Kortmann 1998). The cleavage between the lofty, aspirational language of international human rights instruments and the sober, at times incomprehensible prose of this layered Constitution could not be wider. However, the fact that prominent Dutch constitutional scholars speak of ‘a pretty sad instrument’, ‘soft law’ and ‘a soldier’s handbook’ or – meant more positively – as ‘congealed past’ is only partly due to the incomplete rights catalogue (Elzinga, De Lange, and Hoogers 2008; Kortmann 2005; Ministerie van Binnenlandse Zaken en Koninkrijksrelaties 2008). Another reason lies in the prohibition of judicial review in relation to the Constitution, whilst judges are allowed to review acts that contravene treaties like the ECHR (art. 94). This is only one of the far-reaching provisions that give international human rights law an important place in the Dutch constitutional order, and make it ‘one of the most friendly constitutions towards international law in the world’ (Fleuren 2004). Of equal importance to art. 94 are the other four articles that were inserted in the Constitution in the 1950s 6

House of Representatives, Statement on the grounds of revising the articles on fundamental rights in the Constitution, memorandum in answer (1976–77, 13872–7).

30

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

(now arts. 90–93), whilst the horrors of the Second World War still echoed through society and local branches of the European movement and the Netherlands United Nations associations cropped up all over the country (Schrijver 2010: 209–244; Besselink 2003: 89–138). The articles mandate the government to promote the development of the international legal order (art. 90), allow for the adoption of treaties in conflict with the constitution (art. 91), the transfer of sovereignty to international organizations (art. 92), and for Dutch citizens to directly derive rights and obligations from international human rights law (art. 93). These provisions, their background and their consequences, will be discussed in the coming pages. SUPPORT TO THE INTERNATIONAL LEGAL ORDER

Promoting the development of the international legal order Art. 90: The government shall promote the development of the international legal order

The section of the Dutch Constitution that deals with the interrelationship between the international and the national legal order starts, atypically, with a clarion call. Such an explicit order to the government to not only respect, but actually develop the international legal order is rather unique, and the provision plays an important role in public debates (Besselink 2003: 89–138).7 The insertion of this particular provision, in 1953, was not the idea of government itself, but the result of a motion put forward by the Catholic parliamentarian Jos Serrarens. As one of the ‘pioneers of Europe’, Serrarens had not only been an advisor to the UN ECOSOC Committee, but also a member of the Constitutive Assembly of the Council of Europe. In 1948 he had already co-authored an influential motion urging the government to ‘permanently join international organizations set up for particular purposes, in order to transfer power to supranational organs’, thus paving the way for European integration. In 1952 Serrarens had secured a last-minute parliamentary majority in favour of the possibility of judicial review

7

Art. 2(4) of the Swiss Constitution states that the government should strive ‘to promote a just and peaceful international order’. In addition, the Constitution of Surinam states in art. 7(2) that the ‘Republic of Surinam promotes the development of the international legal order and supports the peaceful settlement of disputes’.

31

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

against treaties.8 In a debate on the newly adopted Universal Declaration the parliamentarian had elaborated on the underlying vision: ‘If we desire that the relations between States are not governed by the law of the jungle, but by law that stands above States, and if we seek to achieve an international legal order in which it is not individual interests that dominate, but a commonly accepted law of morality’, he argued, we will need ‘institutions to develop newer, better, higher laws of morality, a higher order, that is the foundation for a world law’.9 The Joan of Arc of international law Of course, these thoughts and parliamentary motions tapped on a long tradition of support for the international legal order. The incitement of the government, in 1953, to promote the development of the international legal order, had, in the first place, a precursor in the 1922 Constitution, which stated that ‘[t]he King shall attempt to resolve conflicts with foreign powers through judicial and other peaceful means’ (art. 57) . The provision, in turn, can be linked to the intellectual tradition of the commitment of Dutch intellectuals like Grotius to developing ‘that body of law, which is concerned with the mutual relations among states or rulers of states, whether derived from nature, or established by divine ordinances, or having its origin in custom and tacit agreement’ for the sake of ‘the welfare of man’ (Grotius 1625). It was in this tradition that Tobias Asser, for instance, organized the Hague Conference for the Unification of International Private Law in 1893 that later earned him the Nobel Peace Prize. Further steps towards the ‘foundation for a world law’ were taken during the Hague Peace Conferences of 1899 and 1907. When the ministers of Czar Nicholas II contacted Asser, looking for a place to further ‘La paix par la justice’ that would not arouse political sensitivities, the lawyer invited the 100 delegates from twenty-six nations to come to the modest beachside town of Scheveningen (Eyffinger 2007; Eyffinger 2003). It was here that ‘a parliament of men’ first came together to discuss world governance and a world court and laid the 8

9

The motion Van der Goes/Serrarens II adopted in March 1948. See Annemarie Van Heerikhuizen, ‘Pioniers Van Een Verenigd Europa: Bovennationaal Denken in Het Nederlandse Parlement (1946–1951)’ (Doctoral thesis, University of Amsterdam); M. D. Bogaarts, De Periode Van Het Kabinet-Beel: 3 Juli 1946–7 Augustus 1948, Vol. C (Nijmegen: Centrum voor Parlementaire Geschiedenis, 1989). House of Representatives, Confirmation of the budget of the Ministry of Foreign Affairs for 1949, 1 February 1949 (1117, p. 27).

32

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

foundations for the Permanent Court of Arbitration. Whilst the 1907 follow-up conference, organized by Theodore Roosevelt, was generally considered a failure, the year did mark the start of the building of a ‘temple of peace’, the magnificent Peace Palace financed by the steel baron Carnegie that would house the Permanent Court of Arbitration and, later, the International Court of Justice (Eyffinger 2007). The 3rd Peace Conference would never take place, due to the outbreak of World War I. In preparing its agenda in 1910, however, international law professor Cornelis Van Vollenhoven gave an insight into how the Netherlands had come to see its role in the development of the international legal order (Van Vollenhoven 1910: 144–57). In an article titled ‘The Dutch Mission’ he argued that Dutch history and its position as a small country put it in a unique position to advocate an international court that would adjudicate both written and unwritten law, as well as an international police force. In addition, he advocated selecting half a dozen rights and obligations in the 1907 treaties which states would respect under all circumstances. Advocating this, he argued, was the Dutch vocation: ‘If, in our days, the circle of the influential and powerful other nations – its diplomats, lawyers, military – smiles apathetically and in disbelief at this noble aim of world justice strengthened by a world military force, then let the Netherlands dare be the Joan of Arc’ (Van Vollenhoven 1910, 157; Van Vollenhoven 1919: 467–78). The same ideals were echoed by the parliamentarian Serrarens discussed before. In explaining the Netherlands’ neutral position in World War I, he stated: ‘We, who as neutrals are not being carried away by the passions of war, have the duty in these days to guard the higher ethical values for mankind and in particular for Europe’ (Voorhoeve 1985). This self-image of a Dutch vocation to develop international law would continued to surface in debates on foreign policy. When the Dutch, in 1945, succeeded in adding to art. 1 of the United Nations Charter that the main aim of the United Nations would be ‘to maintain international peace and security with due regard for principles of justice and international law’, the Minister of Foreign Affairs boasted to the Senate how ‘the smaller countries are setting an example’ (Schrijver 2010: 219–20). Similarly, when the Dutch followed the UN call to set up a national advisory board on human rights the Minister of Foreign Affairs stated that the Netherlands might be one of the first to do this because ‘of our important mission in the international field, especially as the rights of man have been firmly anchored 33

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

in our national spirit for centuries’.10 Similarly, in describing the constitutional changes in the 1950s to an international audience, Assistant Legal Advisor to the Ministry of Foreign Affairs H. F. van Panhuys explained that these were ‘animated throughout by the desire to adapt constitutional rules concerning the conduct of foreign affairs to recent developments of international law and accept courageously a limitation of national sovereignty, if the development of the international legal order – which means the progress of humanity – so requires’ (Van Panhuys 1953: 158). The introduction has already set out how this combination of a formal, principled ideological stance towards international law and a much more pragmatic practice play out in the Dutch contribution to the Universal Declaration of Human Rights. Let as now briefly dwell on the Dutch stance in negotiating the European Convention on Human Rights that made the UDHR truly binding in the Netherlands. The European Convention on Human Rights It was the Netherlands that, in May 1948, hosted the Congress of Europe during which 750 delegates, under the honorary chairmanship of Winston Churchill, decided to found the European Movement and aim for a European Convention on Human Rights together with a European Court of Justice (Council of Europe 1999). Nevertheless, the Dutch attitude towards the Convention, particularly from the governmental side, would turn out to be strongly reticent (Klerk and Van Poelgeest 1991: 220–47; Lanotte and Haeck 2005: 57–83). The Minister of Foreign Affairs, faced with a draft for the European Convention speedily drawn up by P. H. Teitgen in 1949, initially proposed to ditch the proposal altogether, by ‘making it as small as possible’, and getting rid of the notion of a monitoring mechanism (Klerk and Poelgeest 1991: 220). During the first meeting of the Consultative Assembly the Dutch representative recommended the homo strasburgensis to proceed in the same manner as a horse pulling a barge down the canal: ‘let us proceed slowly, so the rope shall not be broken’.11 In further negotiations this reticence remained, even if the Dutch delegates

10

11

34

Speech of the Minister of Foreign Affairs B. van Boetzelaer van Oosterhout at the installation of the National Advisory Council on Human Rights, as quoted in M. C. Castermans-Holleman, Het Nederlands Mensenrechtenbeleid in De Verenigde Naties (The Hague: Asser Instituut, 1992), p. 101. Travaux préparatoires ECHR, vol. II, p. 22–6.

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

only dared to explicitly doubt the use of the Convention in internal memoranda, and not during the meetings in Strasbourg.12 What were the reasons for these reservations? For one, the Dutch wanted to await the discussions on the UN Conventions. In addition, there was the idea that such a Convention would be superfluous ‘now that the rights and freedoms are secure enough in the individual democratic countries of Europe’.13 Also, the topics concerned lacked legal consensus: ‘the international unification of the rights of man is only possible if there is consensus on the relationship between individual and community, as tailpiece of a process of international integration’ and writing them down now would be premature.14 The planned court was also considered a threat to the International Court of Justice in The Hague. And finally, even if civil servants and ministers often reassured one another that such a Convention would be superfluous in the Netherlands, there was the nagging fear that certain Dutch practices might not be in line with the Convention, or that it would be abused by, for instance, the communists (Klerk and Van Poelgeest 1991: 220–47). When it became clear that movements towards a Convention could not be stopped, the Netherlands concentrated upon inserting provisions in line with Dutch priorities and practices. The Dutch interpretation of the freedom of education, as the positive state obligation to grant parents the right to educate their children as they wanted in schools with state grants was presented as a breaking point. Without such a provision (to become art. 2 of the 1st protocol), the delegates held, the Convention would never obtain a parliamentary majority. In addition, the Dutch sought to safeguard the trial of war criminals that was taking place at the time through the insertion of a limitation to the nulla poena principle, resulting in the addition of art. 7(2): ‘this Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general law recognised by civilised nations’.15 Tensions signalled but unresolved between Dutch practices and the emerging Convention

12

13

14

15

See also Notes to the Minister by Mr Riphagen on the Dutch position during the first session of the Committee of Experts, National Archives NA 2.05.59.02, no 1498. Internal memorandum to the Minister of Foreign Affairs, 26 October 1949, National Archives 2.05.59.02, 7398. Internal memorandum to the Minister of Foreign Affairs, 21 January 1950, National Archives, 2.05.117, 7399. Ibid.

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included – again – the prohibition of Catholic processions and the practice of dismissing female civil servants after their marriage.16 After it became clear that the big powers like France, Germany and the UK as well as neighbouring Belgium would sign the Convention the Dutch would concentrate on emphasizing the need for clear definitions and lack of a supervisory mechanism.17 ‘The time has not yet come to set up a Court with the authority to interfere in the internal affairs of states’.18 In the Committee of Ministers, therefore, the Dutch still voted in favour of strict definitions but against both a European Court of Human Rights and the possibility of individual complaints to it.19 Nevertheless, they lost the legal discussions and whilst the Dutch parliamentarian Burger would remain sceptical to the end, he did state: ‘I am impressed by the courageous way in which the idea of a Convention and its implementation in this field is defended by personalities whose views are worthy of attention’.20 Whilst the Dutch Council of State shared the government’s hesitance towards the Convention, fearing amongst other things too large a role for the judiciary, parliament was much more enthusiastic. Many of the parliamentarians who had to approve the bill had been present at the Congress of Europe and at the UN meetings. They ‘welcomed the concretization’ of the general principles in the UDHR, the ‘making serious work’ out of the solemn declarations, even if the rights were already ‘anchored in Dutch legal consciousness’.21 At the same time, they were less sure that the Netherlands fully complied with the Convention than the government. Was the post-war practice of the government claiming housing accommodation compatible with the right to privacy? And the firing of married female civil servants with the principle of equal treatment? After approval of the Convention and the protocol in 1954 it would also be Parliament that nudged government into approving the individual complaints procedure. In internal memoranda, the reasons for the government’s reticence shift between a fear of abuse by ‘querulous people’, the fear of tensions between certain practices and the Convention, the conceited conclusion that there were none of these 16

17

18 20 21

36

See also the Letter from the Minister of Justice to the Minister of Foreign Affairs, 25 July 1950, National Archives 2.05.117, 7399. Instruction to the Dutch representatives in preparation of the decision of the Committee of Ministers on the ECHR, undated, National Archives, 2.05.59.02, 7398. Travaux préparatoires, IV, p. 114, Mr Patijn. 19 Travaux préparatoires, IV. House of Representatives (3 March 1952, 2374). House of Representatives, parliamentarians Oud, Schmal and Tendeloo (3 March 1952, 2374).

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

tensions and the fear of an activist Commission (Klerk and Van Poelgeest 1991: 220–47). It was the self-restraint exercised by the Commission, combined with the permanent pressure from Parliament – partly via motions – that caused the ministers to discuss the issue again in 1957. The Prime Minister at the time, Drees, was not totally opposed to the ratification but did fear legal uncertainty and extra costs. Parliament, in advising the government, pointed out the symbolic importance of a country like the Netherlands accepting the individual complaints procedure, in referring to discussions on the matter by the International Commission of Jurists in New Delhi.22 It was against this background that the individual complaints procedure finally, in 1960, also entered into force for the Netherlands. Whilst art. 90 of the current Constitution, inserted in 1953, thus encourages the government to promote the international legal order, Dutch post-war practice in developing and accepting the emerging international human rights regime was much more hesitant. Here, there was a striking contrast between the internationalist parliamentarians, who proposed the introduction of art. 90 and played a key role in getting the ECHR ratified, and the reticence of the government. Their interrelationship was codified in the next article to be discussed. Art. 91: Mapping relations between government and parliament Art. 91: 1. The Kingdom shall not be bound by treaties, nor shall such treaties be denounced without the prior approval of the States General. The cases in which approval is not required shall be specified by Act of Parliament. 2. The manner in which approval shall be granted shall be laid down by Act of Parliament, which may provide for the possibility of tacit approval. 3. Any provisions of a treaty that conflicts with the Constitution or which lead to conflicts with it may be approved by the Houses of the States General only if at least two-thirds of the votes cast are in favour.

After the clarion call firmly mandating the government to promote the development of the international legal order, the subsequent provision has two aims: it sets out the interrelationship between government and parliament in concluding treaties and stipulates that treaties can – be it only with strong Parliamentary approval – be entered into in conflict 22

House of Representatives, report on parliamentary discussion (1959, 5359, 4).

37

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

with the Constitution. Both provisions are rather unique from a comparative perspective, and will be discussed against their historical background (Besselink 2002a). At first glance, the provision stating that the Kingdom will only be bound by treaties subject to parliamentary approval is a revolutionary form of democratization of foreign affairs. The provision sought to meet concerns raised by parliament after the Second World War: ‘Gone are the days when the Dutch ship of state sailed the calm waters of neutrality and independence. The storm of war has blown it towards the wide and wild seas of global politics. In the old days Ministers of Foreign Affairs would only go abroad on holidays . . . nowadays the ivory tower of the department has become a pigeonry . . . with the minister gone, just back or ready to leave again.’23 Parliamentarians wanted a say in what took place during these trips: partly because of the internationalist inclination shared by many of them who had experienced the war, and partly because of the fear of a managerialist revolution, in which the expansion of the international legal order would become a bureaucratic, technical process (Hoetink and Van Leeuwen 2011). The parliamentary demands for a greater say in foreign policy-making in general, and treaty-making in particular, resulted in the installation of a specific Constitutional Commission. It was chaired by Professor Van Eysinga who had, in 1906, written his Ph.D. thesis on parliamentary involvement in international law. In describing the importance of international organizations in codifying fundamental rights in post-war Europe, the Prime Minister described the mandate of the Commission as follows: ‘How can the position of parliament be organized, or the constitution amended to take into account the creation of supranational organs, together with the necessity to transfer sovereignty to them under certain circumstances?’24 The Commission put forward a number of proposals for the democratization of treaty negotiations, amongst which was a provision that would order the government to, at its own initiative, to inform parliament or specific commissions verbally or in writing on governmental policies in these matters (Constitutional Commission Van Eysinga 1951). This was, mainly, in order to avoid decisions binding Dutch 23 24

38

House of Representatives (3 March 1952, 2374). Inaugural address, Prime Minister Drees at the installation of the Constitutional Commission Van Schaik, 28 April 1950, pp. 3–4, archives NL-HaNA, BiZa/Wetgeving, 2.04.62, inv.no. 116, accessible via www.inghist.nl/Onderzoek/Projecten/Grondwetscommisies1883-1983/onderzoeksgids.

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

citizens being taken ‘at international conferences . . . over lunches and dinners where important decisions are taken over drinks and tea’.25 Much to the regret of parliament, the government did not adopt this particular recommendation. One reason for this would be given later by a senior civil servant: ‘the making of treaties was (and sometimes still is) considered as being not of such a nature as to make it possible for the procedure to be discussed coram publico’ (Panhuys 1953: 544). Nevertheless, the constitutional revisions proposed by the Van Eysinga Commission did lead to some formal guarantees to parliament: the Kingdom would not be bound by treaties without the approval of parliament, which would have to approve with a two-thirds majority in the case of treaties deviating from the Constitution. Whilst promising in theory, the provisions would not lead to strong parliamentary involvement in treaty negotiations in practice. For one, there was the possibility of tacit approval of these treaties. Whereas the Van Eysinga Commission had suggested making explicit parliamentary approval mandatory in the case of treaties that would bind citizens, this suggestion was not followed. The National Law on the Approval and Publication of Treaties26 provides that a treaty, for instance one that contains human rights, is approved silently unless one–fifth of the parliamentarians have demanded explicit approval within 30 days (art. 5). The only category of treaties that does demand explicit, two-thirds approval, are those that conflict with the Constitution. This provision is considered problematic by lawyers as there is no indication as to who decides whether there is such a conflict: government, the House of Representatives or the Senate (Besselink 2002a; Besselink and Wessel 2009). In addition, it has only been invoked four times in its history. Three instances took place at the instigation of government: the foundation of the European Defence Community, the agreement with Indonesia on the transfer of New-Guinea, and the Rome Statute. In addition, the Senate also felt in 1999 that the treaty allowing the Lockerbie trial to take place in the Netherlands deviated from the Constitution, thus necessitating approval from a two-thirds majority. Of course, the fact that the Constitution actually allows the government to enter into treaties in conflict with its provisions is an indication 25 26

House of Representatives (14 March 1952, 2374). Rijkswet, houdende regeling betreffende de goedkeuring en bekendmaking van verdragen en de bekendmaking van besluiten van volkenrechtelijke organisaties (Law concerning the ratification and publication of treaties and the publication of decisions of international organizations), 7 July 1984.

39

INTERNATIONALISM AS A CONSTITUTIONAL IDENTITY

of the Dutch commitment towards furthering the international legal order.27 If anything, the parliamentary proceedings on these provisions make clear that the government gave more weight to this aim than to the democratization of treaty negotiations: ‘The government realizes that increased international cooperation might necessitate deviation from the Constitution in international agreements. Postponing these agreements until the Constitution has been amended is practically impossible.’28 For, ‘Neither the government nor parliament would want to put into place a situation in which – purely to give parliament a larger say – the Netherlands would be in a worse negotiating position internationally because of . . . lengthy and long-winded procedures.’29 In response, the communists spoke about the provision as ‘a Trojan horse’ and the small nationalist party called it ‘hara-kiri for an independent nation’, stating that the bill would ‘put aside our fundamental rights and freedoms in favour of the interests of international organizations, whilst the questions how these organizations will be controlled has not even been considered yet’. Nevertheless, the majority in parliament went along with the vision of the Minister of the Interior, who stated that the Netherlands simply had to accept that sovereignty was not as important as it used to be, and that ‘this generation has the moral obligation to build the international legal order’, even if this would demand ‘offers’. In convincing parliament, a familiar reasoning was put forward: ‘Why should the Netherlands not be the first country to “break open” its Constitution to further the development of international law? After all, there is the proud tradition of being the “country of Grotius”.’30 Art. 92 The transfer of sovereignty to international organizations Art. 92 Legislative, executive and judicial powers may be conferred on international institutions by or pursuant to a treaty, subject, where necessary, to the provisions of Article 91 paragraph 3

Whilst art. 91, allowing for treaties to be closed in conflict with the constitution, fits squarely within the Grotian tradition, it was the next provision that would prompt the Chicago Daily Tribune to describe the 27

28 29

40

The phrasing ‘Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Houses of the States General only if at least two-thirds of the votes cast are in favour’ dates from 1983. Up to that time, the provision was preceded by the phrase ‘If the development of the international legal order makes it necessary’. House of Representatives (23 January 1952 , 2374–7). House of Representatives (1951–52, 2374–3). 30 Senate (1951–52, 2374 – 113a).

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Netherlands as ‘less than a nation’ in 1952. Of course, the editorial held, the Dutch were free to do as they pleased. However, they would have to acknowledge that, in conferring legislative, executive and judicial powers on international institutions, ‘one of the prices of internationalism is that those states who subscribe to it must acknowledge in the end that they have become less than a nation’.31 As with many of the other manifestations of internationalism in the Constitution this provision was inserted at the initiative of a small group of internationalist parliamentarians, who had witnessed the war and were determined to prevent its repetition (Breillat, Kortmann, and Fleuren 2002). In a 1949 motion, that sought to endorse the setting up of the Council of Europe, they reiterated the need to ‘transfer authority to specific supranational organizations’, emphasizing the importance of parliamentary involvement in these organizations.32 There were a number of reasons why the proposal eventually made it to a widely acclaimed constitutional provision. For one, sovereignty and national identity were far less important in the post-war Netherlands than in other countries (Van Heerikhuizen 1998; Te Velde 2006). In addition, the constitutional review commissions and the legislator saw the constitutional limitation of sovereignty as the codification of a status quo: ‘the notion of sovereignty is not that important anymore’,33 it was stated, and, anyway, ‘every treaty limits the sovereignty of the nation’ (Kennedy 1997). Even if, thirdly, the Netherlands would want to stop this development, ‘an isolated existence, protected from outside influences by an armour of sovereignty, cannot be realized by small, or even by large nations anymore’.34 Finally, the notion of the guiding nation became clear in statements like ‘our national community is no more than a means to attain a higher goal’.35 Over the years, the main supranational institution to which the Netherlands would yield sovereignty was what started as the European Coal and Steel Community, and is now the European Union. Again, it was parliament and public opinion that spurred the Netherlands to sign the Treaty of Paris in 1951 and become one of the founding members (Constitutional Commission Van Eysinga 1951: 21). Government went along, inspired by the same ‘instrumental supranationalism’ and emphasis 31 32 33 34 35

‘Less than a Nation’, Chicago Daily Tribune, 12 December 1952, p. 18. House of Representatives (4 February 1949, motion 1000-III-29). House of Representatives, Minister of the Interior Beel (14 March 1952, 2374). House of Representatives, Memorandum in answer (2374–10). House of Representatives, Parliamentarian Burger (2 December 1952, 2374).

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on economic, not political, integration that guided decisions in other fields (Bogaarts 1989). The supranational character of the Union to be established would be so strong that art. 92 of the constitution would not even formally apply; it is the founding treaties that lay the basis for principles like the primacy of EU law over national law, the EU competence to determine the limits and the nature of its authority itself, and the fidelity principle that requires public institutions to secure its effective implementation and enforcement (Van Keulen 2006). As the European Court of Justice put it in the landmark Van Gend en Loos case: The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.36

Over the years, fundamental rights have become more and more important in this ‘ever closer union’, with the emphasis shifting from economic and social progress towards constitutionalization (Brouwer 1992a; Chalmers and Monti 2008). Of course, the EU was founded on the principles of, as the Lisbon Treaty phrases it, ‘the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’.37 In the 1979 Hauer case, the European Court of Justice spelt this out by stating: ‘Fundamental rights form an integral part of the general principles of the law, the observance of which is ensured by the Court. In safeguarding those rights, the latter is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community. International treaties for the protection of human rights on which the Member States have collaborated, or of which they are signatories, can

36

37

42

Case ECJ 26–62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration. Reference for a preliminary ruling: Tarifcommission – The Netherlands [1963]. Art. 2 Treaty on European Union and of the Treaty on the Functioning of the European Union, signed 13 December 2007 in Lisbon

SUPPORT TO THE INTERNATIONAL LEGAL ORDER

also supply guidelines which should be followed within the framework of Community law.’38 Whilst rights like the right to property and the freedom of movement were important from the onset, increased EU powers in fields like nondiscrimination, privacy and asylum law have led to a broad range of regulations and directives that directly impact upon the rights of Dutch citizens and have led to adaptations of national legislation, as will be discussed later.39 In addition, the creation of a European citizenship in the treaties of Maastricht and Amsterdam with its elaboration by the European Court of Justice has strengthened the importance of the EU in both setting and enforcing fundamental rights (Kostakopoulou 2008). The European Constitution was, of course, destined to be the tailpiece of this process were it not for the rejection of the document by the Dutch and the French voters. The question as to why 61.6% of the Dutch voted no in the referendum, whilst the main political parties were all in favour, has been analysed extensively (Weiler 1999). The main reasons why the Dutch voted against were the lack of information (32%) and the fear of a loss of national sovereignty (19%) (Chalmers and Monti 2008). Whilst the majority of the Dutch were still proEuropean Union, a mistrust of the euro, the East (Turkey) and the elite also caused the rejection (Aarts 2006). In the end, however, the Reform Treaty was ratified by the Netherlands, mainly because the Council of State had assisted the government in stating that, once stripped of symbols like the flag and the anthem, and with the Charter of Fundamental Rights not included in the Treaty, it had lost its constitutional character and thus did not necessitate a second referendum.40 The Charter would, however, be attached to the Lisbon Treaty and be applicable not only to EU institutions but also to member states in applying 38 39

40

Hauer v Land-Rheinland-Pfalz [1979] ECJ 321, 3 See on discrimination: Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; on privacy: Regulation No. 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data; on asylum and family reunification: Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. House of Representatives, Advice of the Council of State (31259–5).

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EU law. The European Court of Justice, again, underlined its importance as the articulation of fundamental rights in EU law, for instance in the Family Reunification case.41 The increased importance of the EU as a supranational institution in defining and enforcing fundamental rights is also enhanced by the foreseen accession of the EU to the ECHR. In addition, the Fundamental Rights Organization plays a role in researching fundamental rights, monitoring compliance and advising on legislation that will strengthen the role of the EU in matters of fundamental rights. In all, the transfer of sovereignty to international organizations sanctioned by art. 92 of the Constitution might have baffled outsiders in the 1950s but was deemed a mere codification of the state of events in the Netherlands. The organization to which the Netherlands transferred much of its sovereign powers, the EU would, in the course of time, also come to have more and more of an impact on fundamental rights in the Netherlands. DIRECT EFFECT

Whilst arts. 90–92 reflect the Dutch post-war commitment to developing the international legal order and a preparedness to relinquish sovereignty in order to do so, arts. 93 and 94 crucially stipulate the effects of this choice on the meaning of international human rights law for both individual citizens and for the relationship between the legislator, parliament and the judiciary. Art. 93 opens up the possibility for individuals to directly derive rights and obligations from international human rights law (and thus point to its direct effect or self-executing character42) and art. 94 allows for judicial review of acts of parliament against treaty provisions. Whilst art. 93 thus turns individuals into subjects of international law, art. 94 turns courts into agents of international law. Baron Van Panhuys explained and justified the radical Dutch choice to an international audience in 1954: Moreover, it means that the national courts will be justified in considering themselves in a certain way as organs of the international community, because no other power of the State to which they belong, unless, theoretically, the pouvoir constituant, by repealing [the article], will be able legally to force their will upon them, if this ‘will’ conflicts with 41 42

44

Case 540/03, Parliament v Council [2006], I-5769. For a discussion of the subtle differences between these notions see J. W. A. Fleuren, Een Ieder Verbindende Bepalingen van Verdragen (The Hague: Boom Juridische Uitgevers, 2004), pp. 32–64.

DIRECT EFFECT

international law. It cannot be denied that a state accepting the new principle runs certain risks as long as its example has not been followed by all other civilized countries, but this should not be a reason for rejecting it. The more the principle of the supremacy of international law is adopted by national legal systems the more the international legal order will become a reality (Van Panhuys 1953: 556).

Art. 93 Establishing international legal subjectivity Art. 93: Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.

Art. 93, out of the articles inserted in the 1950s, is pivotal in determining the place of international human rights law in the Dutch constitutional order. It explicates that individuals can directly derive rights and obligations from international treaties, without these having to be transformed within the domestic legal order. It thus explicitly puts the Netherlands in the monist tradition. Whilst the degree to which there exists such a thing as international legal subjectivity was, and continues to be, debated in other parts of the world, the article was merely considered a codification of existing jurisprudence in the post-war Netherlands. Treaties, as Fleuren puts it, had created rights and obligations for Dutch citizens ever since the sixteenth century (Fleuren 2004: 15). The Supreme Court had already ruled in 1841 that treaties could not only bind the contracting parties but also ‘subjects and citizens’, even in the absence of explicit parliamentary approval.43 This was the beginning of a long line of case law supporting the monist position, for instance a 1906 ruling that underlined the power of the executive to enter into treaty obligations binding citizens.44 This rejection of the transformation doctrine and the notion of dualism was endorsed by the Dutch Association of Jurists in 1937, when a majority of its members voted for this interpretation of international law (Fleuren 2004). Against this background, the provision on the direct effect of international treaties was considered to be largely declaratory; the government motivated its explicit insertion in the constitution mainly because ‘this is a rather unique viewpoint in the rest of the world’ (Claes and De Witte 1998: 171–94). 43 44

Supreme Court (25 June 1841, W (1841) 221). Supreme Court (25 May 1906, W (1906) 883).

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Once explicated, the Dutch doctrine would also have its imprint on the nascent European order; there are clear indications that the twin foundations of working EU law in national orders – supremacy and direct effect – were developed in dialogue with the Dutch (Brouwer 1992a). It was the Dutch tariff commission that referred the prejudicial question to the European Court of Justice as to whether individuals could derive rights directly from EU law, leading to the landmark response in Van Gend and Loos. The affirmative answer was also given by a court presided over by Justice Donner, who had debated these matters in the Van Schaik Constitutional Commission and thus advised on the insertion of the provision in the Dutch Constitution in 1953. Justice Donner himself would suggest the link between the Dutch constitutional revision and the development of ECJ case law, boasting in 1980, that ‘the question as to whether provisions of the treaty itself could have direct effect, could in that sharp form only have been raised in the mind of a Dutch judge’ (Claes and De Witte 1998: 178). Just like the constitutional provision had given the Dutch judges a role in furthering the international legal order, so did the Van Gend and Loos case turn national judges into ‘spokespeople of community law’ and the judiciary into the ‘tirailleur of European integration’ (ibid.). Even if the working of EU law is no longer considered to depend on a constitutional mandate – whether in the Netherlands or elsewhere, the Dutch Constitution formed a stepping stone towards the development of its independent position. Art. 93 is thus not considered relevant for the working of EU law anymore, but all the more so where it concerns international human rights treaties. It stipulates that provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published. The requirement of publication has everything to do with this binding force: it was deemed undesirable to bind private persons without notification (Donner 1980: 359). In addition, the Supreme Court has ruled that the provision only concerns treaties and resolutions by international institutions and thus not, for instance, principles of jus cogens, international customary law.45 The key term to be interpreted in this provision is, however, what are the treaties and resolutions that ‘may be binding on all persons by virtue 45

46

Supreme Court, Nyugat II (6 March 1959, NJ 1962 ) and, more recently: Supreme Court, Bouterse (18 September 2001, LJN AB1471).

DIRECT EFFECT

of their contents’? These words were only inserted in 1956 and presented as a mere technical revision, but turned out to be much more than that (Fleuren 2004; Fleuren 2010: 245–266). A first question is, of course, who gets to decide on whether the provisions may be binding on all persons? This is the judge. Next, the question arises as to what criteria are used. Here, the case law has shifted over the years, and shows a certain degree of ambiguity. In early case law, the Supreme Court looked primarily into the parties intentions upon entering into the treaty. In current years, however, ‘to determine whether a treaty provision is selfexecuting or not, the courts no longer exclusively examine its nature, contents, wording and the parties’ intentions, but also the domestic context in which the judge is requested to apply the treaty provision in question. If treaty law in combination with domestic law is unequivocal in its meaning, courts regard treaty law as self-executing, unless the application of the international provision would require a decision on a political question to be made by the judiciary (Brouwer 1992b; Fleuren 2004). This doctrine of consistent interpretation, combined with judicial restraint, has become dominant in the application of art. 93 (Brouwer 1992b; Fleuren 2004). As a rule of thumb, this approach has the effect that the civil and political rights in the ECHR and the ICCPR are considered to be selfexecuting, and therefore to directly create rights and obligations for individuals. In the case of the ECHR the self-executing character also concerns all the case law of the court: the so-called incorporation theory (Betlem and Nollkaemper 2003: 569–89). When the court in Strasbourg ruled, for instance, in a case against Turkey, that a lawyer needs to be present during police hearings, this was also deemed to be part of the contents of art. 6 in Dutch discussions and case law.46 In contrast, the social and economic rights in, for instance, the European Social Charter and the ICESCR are generally not considered to be binding (WRR 2002). Neither was, for instance, the UN Charter. In a ruling on the Kosovo bombings, the Supreme Court stated that art. 2(4) of the Charter had no direct effect because it was not drawn up to protect the rights or interests of private parties.47 Exceptions to this general rule exist: in 1986, the Supreme Court in its famous Railroad Strike judgment, considered the right to strike in the European Social Charter to be binding, in spite of early denial of this force in parliamentary 46 47

Case 36391/02, Salduz v Turkey [2008] ECHR. Amsterdam Court of Appeal (6 July 2000, LJN: AO0070, 759/99 SKG).

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proceedings.48 Recently, art. 7(3) CEDAW was also considered to have direct effect in forcing the Dutch government to take effective measures against a political party that barred women from its ballot list.49 There is further discussion in later chapters of the significance for a number of specific human rights of both of this provision and the filter upon fullfledged monism created by the words ‘binding on all persons’. Art. 94 Judicial review against treaties only Art. 94: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.

Whilst art. 93 grants international human rights law an important role in determining the rights and obligations of individuals in the Netherlands, art. 94 gives this body of law a special place in the interrelationship between the judiciary and the legislator. For, whilst art. 120 bars the judiciary from reviewing acts against the Constitution, the current provision does allow for review against the self-executing provisions of international treaties and resolutions. To provide a theoretical example: a law banning headscarves from the public sphere, for instance, could not be struck down by the judiciary in referring to the Constitution, but could on the basis of international human rights law laid down in treaties like the ECHR. The prohibition of constitutional review stems from the important role granted to the (elected) legislator in the French-inspired code law system of the Netherlands. Whilst the judge is no longer considered to be a mere bouche de la loi, judicial activism in frowned upon, especially by those parliamentarians who would have to put an end to the prohibition. The absence of constitutional review has, however, been lamented for years. The auctor intellectualis of the constitution of 1848, Thorbecke, called it a ‘lock on the constitution’ and warned the parliamentarians who disregard this element of his constitutional proposals that, without review, ‘the constitution would cease to be a constitution’ (Elzinga, De Lange, and Hoogers 2008). Ever since, constitutional review commissions have proposed striking down the prohibition, but to no avail. In 2003, there was a parliamentary proposal to allow for review against the civil and political rights, but decision-making on the 48 49

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Supreme Court, Spoorwegstakingarrest (30 May 1986, NJ 1986, 688). Supreme Court, SGP (9 April 2010, LJN BK4549 and BK4547).

DIRECT EFFECT

topic was still pending in 2013.50 Whilst it received the necessary majority in both the House of Representatives and the Senate in its first round, it also needed – as with all constitutional revisions – a twothirds majority in both Houses after elections and a government with the political will to put it before parliament in the first place. It is against this background that the possibility of review of acts against (human rights) treaties is all the more surprising. Even more striking is the fact that this provision, which could and would limit the powers of parliament, was inserted by a parliamentary motion in 1953. The government had shied away from inserting such a provision, arguing that – whilst the supremacy of treaties was undisputed – the Netherlands was not yet ready for their review judicially, and that if the legislator considered its laws in line with international treaties the judiciary should not be allowed to subsequently strike these down (Asscher 2003: 18– 22). Parliament, however, through the insistence of the internationalist Serrarens, decided in favour of the possibility of judicial review, even in relation to treaties concluded after the making of the law in question (lex posterior). Just as with art. 93, the provision that the treaties and resolutions to be reviewed had to be binding upon everyone was only inserted three years later and presented as a technical revision (Fleuren 2004). Here too, however, the addition would have important consequences in limiting the influence of the provision. For one, it led the Supreme Court to rule in 1959 that judges could not review acts against jus cogens.51 This viewpoint was repeated in a case concerning the crimes allegedly committed by Desi Bouterse in 2001 (Brouwer 1992a).52 Also, just like art. 93, the provision would lead to a limitation of the number of treaties where actual review took place. Judicial review of the ECHR, for instance, takes place regularly and has led to the striking down of many provisions, and at times Dutch acts in their entirety. In ratifying the Convention, the government had insisted that there were no tensions with existing Dutch legislation. Whilst the Supreme Court supported this view in one of the first cases brought to it, concerning the 50

51 52

House of Representatives, Voorstel van wet van het lid Halsema houdende verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet, strekkende tot invoering van de bevoegdheid tot toetsing van wetten aan een aantal bepalingen van de Grondwet door de rechter (Bill by Halsema for the purposes of constitutional amendments in order to allow for constitutitonal review against a number of provision by the judiciary), 28831 (5) ff, 18 November 2002. Supreme Court, Nyugat II (6 March 1959, NJ 1962, 2). Supreme Court, Bouterse (18 September 2001, LJN AB1471).

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prohibition of certain Catholic processions, this prohibition was struck from the Constitution in 1983 (Besselink and Wessel). In later years, however, Supreme Court rulings necessitated a fully fledged revision of Dutch family law and social benefits legislation deemed discriminatory (Elzinga, De Lange and Hoogers 2008). Of course, there were not only rulings by Dutch courts, but also incompatibilities between acts and the Convention signalled by the court in Strasbourg that led to legislative revisions, whether in the field of administrative procedure, the rights of mental patients or the right to family life.53 In all, the combination of the prohibition of constitutional review and the expansion of the importance of human rights law is another element in determining the relative importance of international human rights law within the Dutch constitutional order. CONCLUSION

In setting out the role of the legal order in determining how international human rights acquire meaning in the Netherlands, this chapter has concentrated upon the Constitution. At first glance, this might be a peculiar choice. Many fundamental rights, for instance, are not even enshrined in the Dutch Constitution: they are either laid down in domestic laws, or in international treaties. Additionally, the document has been called ‘a pretty sad instrument’ by prominent constitutional lawyers because judges are not allowed to review legislation that is contrary to it, whereas they can review legislation contrary to treaties. A discussion of the Dutch Constitution does show, however, how a core feature of Dutch constitutional identity is its internationalism. The high degree of openness towards the international legal order has deep roots in Dutch history, but it also received an important impulse from the post-Second World War desire to never see the horrors of the Holocaust happen again. Through a number of constitutional amendments in the 1950s, individuals were made into subjects of international law, and thus bearers of international human rights, and courts into its agents. The government was mandated to develop the international legal order, even if this entailed signing treaties that violated the Constitution.

53

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See also Benthem v Netherlands, ECtHR, 23 October 1985, No. 8848/80; Marckx v Belgium, ECtHR, 13 June 1979, app. 6833/74

CONCLUSION

In turning the Dutch Constitution into an instrument to further the development of the international legal order, those driving the process were mainly trying to set an example for others, and to exercise the Dutch role of a guiding nation. One striking element in constitutional history is the key role played by a group of internationalist parliamentarians, who argued that ‘signing away sovereignty’ was a small price to pay for the higher aim of the development of international law. Whilst the Dutch Constitution is thus hardly unique in its openness towards international human rights law, very few Dutch people are aware of this. The next chapter, in turning away from the law towards legal consciousness and legal culture, will discuss the relative irrelevance of rights to the Dutch in general.

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C H A P T E R 3

RIGHTS-FREE CITIZENSHIP

Because there’s nothing one can know for sure and everything passes by But I have faith I have faith, I have faith, I have faith, I have faith in you and me1 Country of a 1000 opinions Level-headed place . . . Country that hates paternalism No uniform is holy . . . Country full of tolerance Except for the neighbours . . . 15 million people On that tiny spot on earth Not to be overregulated But to be left in dignity2

The Dutch Constitution, as the reader knows by now, contains an elaborate Bill of Rights but grants international human rights a privileged position. Few Dutch people, however, share this knowledge. A representative research survey into knowledge of and attitudes towards the Constitution that I conducted with colleagues in 2008 showed how 94% of the respondents lacked basic knowledge of the Constitution, and indicated that they knew little of its contents, even if they did feel the document to be (very) important. At a symposium titled ‘the invisible constitution’ with politicians and constitutionalists, during which the research was presented, the Minister of the Interior argued for a change: The Constitution, she stated, could and should ‘bind and inspire’ a country in search of ‘a point of convergence’ and a central beacon (Elzinga, De Lange and Hoogers 2008). The minister was politely, but unmistakably, rebuked. Why, as one eminent constitutionalist 1

2

Lyrics from ‘Avond’, by 1960s singer Boudewijn de Groot, voted the best Dutch song of all times in the Radio 2 top 2000, www.top2010.radio2.nl. Parts of a song that originally accompanied a Postbank advertisement in 2007, but unexpectedly became a number 1 hit, appreciated for the degree to which it captured Dutch identity.

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argued, should the Netherlands be in need of a constitution as a ‘flûte enchantée, a Zauberflöte for all of us, Dutch and non-natives to follow dancing and yelling during a yearly constitution-party?’ (Ministerie van Binnenlandse Zaken en Koninkrijksrelaties 2008: 11–14). Why not consider the Constitution as a necessary evil, not to be given any more attention than needed? A sociologist of law couldn’t agree more: ‘The Constitution is no maizena’, he argued – no corn starch to bind society (ibid., 2008: 17). This chapter moves from the place of rights in law to their position in society, in social and political discourse. It starts by presenting some of the survey data referred to above, as well as more qualitative research on what the Dutch know about fundamental rights in general, and human rights in particular, and how they feel about them. Whilst pointing out how the Dutch generally have little knowledge of rights, it also pays attention to those rights that do often figure in the political arena and Dutch self-understanding: the freedom of expression, of religion and of education and the right to equal treatment. Seeking to move beyond a mere representation of attitudes to rights towards a dynamic understanding of the way in which (perceptions of) rights are negotiated within the public sphere it focuses on two cases studies: fear of juridification as indicative of wider legal culture, and the rise and the conceptualization of the notion of citizenship in politics and society at the beginning of the millennium. This, then, calls for a venture onto the slippery slopes of legal consciousness and – even more perilous – legal culture. As stated in the introduction, legal consciousness – dubbed external legal culture by some (Hertogh 2008: 7) – will be taken as a ‘collective construction that simultaneously expresses, uses, and creates publicly exchanged understandings’, constituted ‘in relation to the legal processes available to people, the ideas and the practices of legal professionals and laypeople, and also discourses circulating nationally and internationally’ (Friedman and Scheiber 1996: 183). Legal culture, then, is wider. As Nelken defines it: ‘The identifying elements of legal culture range from facts about institutions such as the number and the role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour, such as litigation or prison rates and, at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do’ (Ewick and Silbey 1998; Hirsch 2002: 15). Both concepts, crucially, can function as explanatory variables but are, in turn, also in need of explanation (Nelken 2007a: 11). 53

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A large part of this explanation lies, of course, in Dutch history and the social, economic and political conditions that shaped the Dutch republic and the Kingdom of the Netherlands, and the shifts and continuities that characterize it. The Dutch republic, which was formed as a result of the rebellion against the Spanish, has often been described as unique (Nelken 2007b: 369–74). This is only partly because of the unprecedented wealth that the republic brought to the seven provinces in the seventeenth century, with the formation of the East India Company (VOC) and the central Dutch role in world trade (leading Prime Minister Balkenende to yearn for a more ‘VOC-mentality’ in 2006, which in turn caused opposition leaders to ask whether this included the slave trade). Another reason lies in the religious freedoms partially laid down in the 1579 Union of Utrecht and expanded in the 1581 Act of Abjuration that allowed scholars like Erasmus and Spinoza to flourish. The Dutch, as Daalder phrased it in the seventeenth century ‘had many liberties and rights that others could only claim via revolution’ (De Vries 1973: 191–202). This, in turn, was possible because it was the urban bourgeoisie, with its variety of opinions, instead of an aristocracy, that held power from the sixteenth to the eighteenth century. Even if strife between the cities was rampant and brought down the republic, these regents founded the tradition of cooperation, consensus and pluralism that still forms a central feature of Dutch legal culture (Daalder 1989). This tradition, historians have argued, in turn goes back to the fight against flooding and the Water Boards that were put in place to manage it in the Middle Ages (Lijphart 1989: 139–53). In this sense, the nineteenth century is often described as a departure from the decentralized and pluralist Dutch political tradition. It brought, after 1795, the formation of a centralist unitary state with, for instance, a common civil and criminal code and a court hierarchy. Even if the Batavian republic was molded upon the French example, and was essentially a client state of France, it was put in place more smoothly and democratically, with the 1798 constitution paving the way for the 1848 foundation of the current Constitution (Toonen, Dijkstra and Van der Meer 2006: 181–201). This latter established the constitutional monarchy with parliamentary sovereignty and ministerial responsibility. It, in essence, placed more emphasis on the delimitation of State powers than on nation-building and the rights of citizens, and – characteristically – does not even include a constituendum, that is a reference to the political entity (‘We’, ‘The People’) that puts in place the Constitution. As the main drafter, Leiden law professor Thorbecke, spoke about the 54

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degree to which the people were written out: ‘the Constitution has left citizenship, the driving force of our century, asleep as much as possible. To avoid passion the soul was broken.’3 This passion, however, would characterize the late nineteenth century, which was marked by protracted fights over voting rights and labour rights on the one hand, and discussions on the separation of Church and State, and the institutionalization of pluralism, on the other (Te Velde 2010). The historical accord, the Pacification, that in 1917 put an end to this by including both universal suffrage (a socialist demand) and state recognition and funding of religious schools (a confessional demand) encapsulated a return to the pluralist politics of accommodation. It formed the basis for the pillarization of politics, a system in which the Protestants, the Catholics and the liberals each had their own political parties, schools, sports clubs, media and hospitals, with a relatively apathetic population trusting its elite to close political deals stabilizing an essentially volatile form of pluralism (Lijphart 1989: 139–53). For all the impact that the Second World War had on Dutch society, it hardly influenced this form of consensual and cooperative elite politics (Lijphart 1968). This relatively calm institutional landscape, organized around religious pluralism and deference to authority, underwent massive changes in the 1960s. Kennedy has argued that there was no country in which the twin forces of emancipation and secularization had such an impact, turning the Netherlands into an epicentre of tolerance, with the Red Light District, coffee shops, gay pride and topless women as markers of its identity (Kickert 2003: 119–40). It was in this era that specific Dutch policies like the gedogen (toleration) of euthanasia and soft-drugs were put into place, and the Dutch fully developed their self-image as a guiding country described in the last chapter. For all the changes of this era, there were also continuities: the elite, due to the fact that it went along with the changes, retained its position, and the immigrants that started arriving in the 1970s organized within the same pattern of pillarization (Kennedy 1995). The pragmatism, corporatism and consensualism with which the results of the global economic crisis were successfully mitigated in the 1980s led to a global interest in the ‘Dutch miracle’ and the institutions underlying it (Kickert 2003: 119–40).

3

Report of the Constitutional Review Commission, 11 April 1848, available via www.home. planet.nl/~janss281/Grondwet_Herziening.html.

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It could well be that the beginning of the millennium marked a transformation both as massive and as relatively uncontested as in the 1960s, wrenching Dutch politics from multiculturalism, internationalism and elite politics into the direction of anti-immigration, neonationalist and populist politics. The global 9/11 shock effect, in the Netherlands, was amplified by two murders. The shooting, in 2002, of the first real Dutch populist Pim Fortuyn, who flamboyantly4 and highly successfully kicked against the elite under the kaasstolp in The Hague. Subsequently, in 2003, there was stabbing by a Muslim fundamentalist of the just-as-outspoken filmmaker Theo van Gogh because of his cooperation with Ayaan Hirsi Ali on Submission, a documentary criticizing the position of women in Islam. These events catalysed the discussion on the downside of multiculturalism started a few years earlier with Scheffer’s denouncing of the ‘apologists of diversity’ and calling for a farewell to the ‘cosmopolitan illusion’ and an emphasis on national pride and integration (Scheffer 2000). Within a few years, the ‘nation in bewilderment’ had taken an assimilationist and culturalist turn, with discussions on national identity and Dutch values in vogue as they had not been since the early nineteenth century (Scheffer 2000). How, now, are these historical forces of bourgeois governance, consensual decision-making, liberalism, pluralism and pragmatism and their current contestations reflected in Dutch rights consciousness, legal culture and discussions on citizenship? AN UNKNOWN RIGHTS CATALOGUE

The Dutch, thus, have, had in the course of history very little experience of the struggle for individual rights as safeguards against a centralist government that other countries have had, whilst simultaneously founding a country on values of liberalism and tolerance. How does this translate into legal consciousness, in the classic K.O.L. sense – the knowledge and opinion of law? In line with the notion of the ‘invisible constitution’, the Dutch generally know little about the contents and workings of rights that it contains. A representative survey, in 2008,5 4 5

Literally ‘cheese cover’ a bell jar used to keep cheese fresh. Hereafter: the research on the Constitution. This concerns a survey carried out by TNS Nipo amongst 1,246 citizens, selected from a 200,000 person database in 2008, survey questions were drawn up and analysed by the author, and put to the respondents via an online questionnaire. The results have been weighed pertaining to sex, age, education and region to ensure representativeness for the Netherlands.

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found that 84% of the respondents indicated that they were ‘not very’ or ‘not at all’ familiar with the contents of the Constitution. This selfassessment proved to be realistic: out of six basic knowledge questions no one answered everything correctly, 10% of the respondents had everything wrong, 24% had one right answer, 40% two, 22% three, 5% four right answers and not even 1% gave five correct answers. Overall, 94% had more than half of the answers wrong. Of course, the analytical value of such a test depends strongly on the standards set. What is more interesting is to see what elements of the Constitution were better known than others. The question on civil rights, for instance, was answered correctly most often: when choosing which fundamental right is not enshrined in the Dutch Constitution, 77% correctly opted for the right to property instead of the freedom of expression, the freedom of religion or the prohibition of discrimination, with significant differences depending on the level of education. A question on ministerial responsibility, and the relationship between the executive and the monarchy was answered correctly by 60% of the respondents. In contrast, only 22% were aware of the conditions for amending the constitution: a majority in both chambers, followed by elections of the parliament, and a subsequent two-thirds majority in both chambers. Concerning the way in which the Constitution begins, only 18% knew that this was with the non-discrimination clause (whereas, for instance, 40% did not know). Concerning social rights, only 2% knew that the right to safety is not enshrined in the Constitution, with the majority incorrectly assuming that the document lacks due diligence provisions like care for the environment, employment and health care. Where knowledge of the constitutional dispensation was concerned, it is striking that most people were not aware of the supremacy of international treaties. Asked whether the government could conclude a treaty that went against the constitution, 71% answered ‘no, never’ and only 14% correctly indicated that this was possible, though only under certain conditions (a two-thirds majority in both chambers). This is in line with the findings in another research project, on Dutch knowledge of and attitudes towards human rights.6 Here, when asked for 6

Hereafter: the human rights research: Face-to-face interviews held by students with 399 respondents in the ‘Freedom Train’, a regular train that was dedicated to commemorating Dutch liberation after the Second World War, as part of the ‘human rights research project’ in 2010, with partly open and partly closed questions. The sample is representative for age, education, sex and region. The results presented are the answers to the open question: ‘can you name three treaties or other documents that contain fundamental rights’?.

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‘treaties or other documents in which fundamental rights are laid down’, 20% of the respondents who answered at all named the Dutch constitution, 9% the Universal Declaration of Human Rights, 5% the Convention on the Rights of the Child and only 4% the European Convention on Human Rights (as many as named the Geneva Conventions), notwithstanding the fact that the ECHR, as was discussed in the last chapter, is arguably a much stronger and more important source of protection of fundamental rights in the Netherlands than the Constitution itself. Most Dutch people thus appear to know little about rights in general and about the hierarchy of fundamental rights laid down in the Constitution and in international treaties. They also turn out to have a particular understanding of the essence of rights. In contrast to the classic image of rights as limits set to state power, this image strongly emphasizes individual responsibilities, and the horizontal application of rights. When asked the open question ‘what is the Constitution about?’, for instance, 38% of the respondents in the research on constitutional knowledge inaccurately emphasized duties, in – for instance – answering that the constitution contained ‘the rights and responsibilities of Dutch citizens’ or ‘duties and commandments’. In the human rights research respondents were asked whether they felt that the Dutch Constitution, like the EU Charter on Fundamental Rights, should contain a provision on responsibilities.7 Here, 40% opted for ‘Yes, no rights without responsibilities’, 18% answered ‘Yes, I actually thought that the Constitution already contained responsibilities’, 20% did not know, 12% answered ‘No, this is included in the Charter’ and only 11% answered ‘No, it’s up to me to determine what my responsibilities are’. Whilst the knowledge of fundamental rights and of the constitutional dispensation has never been comprehensively researched in a comparative perspective, and it would be difficult to do so, there are some indications that Dutch knowledge of international human rights lies lower than that in surrounding countries. A Eurobarometer on the Convention on the Rights of the Child, relatively one of the bestknown conventions in the Netherlands, found for instance that Dutch youngsters were amongst the least aware of children’s rights in Europe, ranking 24th out of 27, with 59% awareness as opposed to an average 67% (Schoo 2000). Another Eurobarometer indicated that 7

The preamble of the EU Charter emphasizes how ‘Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations’.

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65% of the Dutch did not feel well informed about their rights as EU citizens, ranking the Netherlands 22nd out of the 27 member states (European Commission 2009: 6). The actual awareness of specific EU rights did indeed lag behind the average: 71% of the Dutch, for instance, were aware of the right of EU citizens to be treated exactly in the same way as Dutch nationals, ranking the country 25th within the EU (European Commission 2008: 7). All these figures on knowledge of rights, of course, say little about the degree to which the Dutch value fundamental rights, both at home and abroad. Here, the statistics confirm the classical image of the Dutch as a liberty-loving and tolerant people who strongly value human rights within the domain of foreign policies. The research on the Constitution, for instance, showed that 94% of the respondents found it important or very important that the Netherlands had a Constitution, even if there was little knowledge of its contents. When asked what they were proud of pertaining to their country, ‘The way of living together, norms and values’ came out first (16%), closely followed by ‘freedoms’ (15%), much higher than the health care, the social system and the economy (Steenvoorden 2011). Within the World Values Survey and the European Values Survey the Dutch rank highly in their support for secular-rational (as opposed to traditional) values and the degree to which they value post-material issues such as tolerance of minority groups and environmental protection.8 This is reflected, for instance, in the fact that only 5% of the Dutch would object to having someone of a different race as their neighbour, and 6% to a homosexual living next door, whilst these percentages are 19% and 42% worldwide. In addition to valuing fundamental rights at home the Dutch also relatively attach a great deal of importance to the realization of human rights worldwide. In 1999, there was no country in the world in which more people belonged to a human rights organization: 24% in relation to a global average of 3% (World Values Survey). Asked, within the Eurobarometer, what policy areas the EU should look into, 26% of the Dutch named ‘human rights around the world’, as opposed to an average 19%.9 In terms of valuing the realization of human rights close to home, for instance the rights of immigrants, the picture is more mixed. The International Civic and Citizenship Study found the preparedness of

8 9

See www.worldvaluessurvey.org/and www.europeanvaluesstudy.eu/. Flash Eurobarometer, data over 2001.

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young people in the Netherlands to accept that immigrants have certain inalienable rights to be much lower than in other countries (Ibid., 21). The human rights of some seem therefore to be more important than those of others. In addition, in the Netherlands as elsewhere, some specific rights are better known and valued more highly than others. When, in the human rights research, respondents were asked to name three fundamental rights, they spontaneously came up with the freedom of expression (43%), the freedom of religion (21%), the right to education (15%) and the right to equal treatment (10%). In choosing one right that was most valuable to them, the majority of a representative sample of Utrecht citizens opted for the principle of equality (45%), followed by freedom of religion (30%), freedom of expression (30%) and the right to education (20%).10 This corresponds with earlier results of comparative research, in which the Dutch were generally inclined to be (strongly) in favour of the protection of these particular rights (Maslowski et al. 2010). Whilst this quartet of fundamental rights deemed more important than others will be extensively explored in subsequent chapters, it is important to note here how each of these rights has a deep-rooted historical background and strongly correlates with the values of tolerance and self-expression that the World Values Survey found to be characteristic of the Netherlands. The value attached to freedom of expression is in line with the Dutch history of tolerance towards different opinions, characterized by the works of Erasmus and Spinoza, and the early codification of this particular right. These days, people interviewed on rights often say something like: ‘To me, the most important right is the freedom of expression. Everyone should be able to say what they think about something. This doesn’t mean, however, that you have the right to insult people.’11 As another respondent phrased it: ‘I like to write in my spare time. A poem, a critical blog, loose thoughts. In sharing these thoughts on an international site I met 19-year old Abbas from Pakistan. When he criticizes his government he runs the risk of being arrested. This has really made me aware of how happy I am to live in the Netherlands, where I can say what I want without fearing the consequences.’

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Utrecht citizens panel, November 2010, 1181 respondents, available via www.utrecht.nl/onder zoek, visited 29 June 2011. All quotations come from the open answers in the human rights research project.

AN UNKNOWN RIGHTS CATALOGUE

Another freedom often named, highly valued and closely related to the freedom of expression concerns the freedom of religion. It was this freedom, in particular that of the Protestants, that was at stake in the Dutch revolt against the Spanish in the sixteenth century, with religious tolerance laid down in the 1576 Pacification of Ghent, and the 1581 Act of Abjuration. In the twentieth century, respect for religious communities would be the basis for the pillarization policies, in which Protestants and Catholics, but also socialists and liberals, received state recognition of their political parties, denominational schools, media, sport clubs and universities. The freedom of religion – with positive state obligations attached – was therefore a central political organizing force. The Dutch separation of Church and State, as Van den Burg has argued, is thus one of inclusive neutrality, in which there is place for (all) religions within the public domain (WRR 2003, referring to the 1997 eurobarometer). With the rapid Dutch secularization of the 1960s, and the ensuing emphasis on equal treatment, there are tendencies to move towards an exclusive neutrality along the lines of the French laïcité, but the Dutch still often name this right, and explain, for instance, ‘Everyone has the right to decide what he or she believes in, no religion should feel better than another and none should be turned down, because this is a personal thing.’ Closely related, in turn, to religious freedom is the freedom of education. This entails a number of components: the right to education, the freedom of parents to choose a school for their children and the denominational freedoms of schools. It is only the third element that is enshrined in the Dutch Constitution, in one of the best-known provisions: art. 23. This article is the outcome of the schoolstrijd, the battle of the schools, that raged throughout the nineteenth century and was resolved, in 1917, by exchanging universal suffrage (a socialist demand) for publicly funded denominational schools (a confessional demand) (Van den Burg 2009). The ‘art. 23’ that protects this denominational freedom is today a constitutional classic in the collective imagination, and the fact that all constitutional reviews since 1917 have not changed a word in its (rather impenetrable) phrasing bears witness to this. Not only was this right often mentioned in the human rights research, but respondents also reflected on issues like: ‘To what extent is there truly freedom of education these days? In the case of younger children the government pays for travel to denominational schools further away, but this is not the case for pupils between 16 and 18 years old.’ 61

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If the overview of ‘rights deemed more important than others’ were a chart, the right to equal treatment would be the fastest riser. Of course, this right is also a fundamental principle, underlying many other rights. However, it was only enshrined in the Dutch constitution as its art. 1 in 1983. Since then, ‘Art. 1’ has been accompanied by enacting legislation and institutionalized by means of an Equal Treatment Commission, and has also given its name to a large NGO, been engraved in stone in front of parliament, functioned as an accreditation label for schools working against discrimination and has thus risen to the status of – according to some – a ‘superright’ (Hooker 2009). In the words of one respondent who has witnessed the rise of this particular right: The right to non-discrimination, to me, is the most special and farreaching right. As a western woman I belong to the generation that could first profit from feminism in the 1960s and 1970s, with schooling and a free choice of lifestyle and partner as a given. The government ensures that I can develop myself as a woman and society has slowly followed. Of course there is still work to be done, but the effect of an independent woman is enormous, with positive influences on the family, the neighbourhood and the wider environment.

In all, whilst the Dutch know very little about both constitutional and human rights they do value liberty as such, and have a particular preference for certain rights.

LEGAL CULTURE: CONSENSUALISM OVER ADVERSARIALISM

Approached at an individual level, the Dutch know little about (the sources of) fundamental rights, find human rights to be an important element of foreign policy, view rights horizontally and tend to couple rights to responsibilities. How, from a more institutional perspective, does ‘rights talk’ feature in demarcating the interrelationship between the executive, the legislative and judicial power and in their respective relationship with citizens? Here, classically, Dutch political culture has been characterized by corporatism, consensualism, judicial reticence and informal pragmatism. In political and legal culture, ‘rights talk’ generally tends to give way to finding common solutions, even if a movement towards, for instance, polarization, populism and rights talk can be discerned. 62

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To start with the legal apparatus itself, the lack of litigiousness in the Netherlands has long captured the surprise of observers. In a classic article, Blankenburg compared Dutch legal culture in this field to that of neighbouring Germany, with as much regulation, welfare state provisions and as strong a participatory democracy, to find that the Netherlands had far fewer courts, judges and practising lawyers (Blankenburg 2007). The explanation was found in the fact that the Netherlands has many more alternatives and pre-court conflict institutions; legal behaviour, the article concluded, was determined by institutional supply instead of popular demand here. Kagan took the Netherlands as the prime antipole to US adversarial legalism, and wrote. I have interviewed ocean shipping firm officials who assert that although the substantive law in New York and Rotterdam is the same, they prefer to resolve cargo damage disputes in Rotterdam; because Dutch lawyers are far less expensive, adversarial and legalistic than their New York counterparts, because adjudication in the Dutch courts is faster and more reliably professional; and because overall, negotiations in the Netherlands are ‘more human’. (Kagan 1997)

This emphasis on ‘informal pragmatism’ within the legal apparatus is also visible in typical Dutch policies of the prosecutorial principle of expediency, opportuniteitsbeginsel, and the more general policy of gedogen, toleration of specific crimes (Kagan 1997: 171). The opportuniteitsbeginsel grants the prosecutor the discretionary power to only prosecute when the public interest is served by doing so.12 Under the principle of gedogen there is – under conditions laid down in public policy – no prosecution of crimes without victims, such as drug use and prostitution, and also euthanasia. As Bruinsma described the underlying rationale: ‘The Dutch approach to crimes without victims is usually moralistic, but permissive in practice. The law in the books symbolically keeps up moral condemnation, while the law in action formulates a beleid [policy] of non-enforcement’ (Bruinsma 2003). The deliberate toleration of minor wrongdoings can have the effect of preventing more serious offences, like dope smokers turning towards hard drugs, and can reflect changing policies in society (Bruinsma 2003). Cases that are taken to court are considered by a judiciary consisting of civil servants, that takes decisions collectively and keeps judicial 12

Arts. 167 and 242 of the Code of Criminal Procedure

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deliberations behind closed doors. Judgments therefore do not contain dissenting opinions. Judges are generally conservative, and deferential to parliament, with general legal opinion holding that a judge should stand ‘with his back towards the future’ and not engage in judicial activism (Pakes 2004: 294). Over the years, this has resulted in a relatively high degree of public confidence in the judiciary, adding the Netherlands to the Northwest European pattern of high trust in law and legal institutions (Blankenburg 2000). In recent years, however, the more general wave of populism and mistrust of authorities has also resulted in criticism of the judiciary, and it could well be – as Hertogh has argued – that the high degree of confidence that can be seen in the statistics is more reflective of ‘sullen toleration’ than of solid support (Hertogh 2010). This enhanced public scrutiny of the judiciary could well be related to a number of more structural power shifts within the trias politica, and in the relation between Dutch citizens and the judiciary. With regard to the latter, Van Waarden reports how globalization, economic liberalization and the rise of regulatory agencies have led to an increase in litigation. Since the 1970s, the Netherlands has seen a shift from corporatism to ‘lawyocracy’, from the power of associations of civil society towards the power of courts, lawyers and judges (Van Waarden and Hildebrand 2009: 259–86). This process is visible in civil litigation, but also in criminal law, which has increasingly taken a punitive turn, away from gedogen and prosecutorial discretion, and in administrative law characterized by the expansion of the regulatory state (Pakes 2004: 284–98). Within constitutional law, the possibility of review against treaties might be exercised with caution and a fear of actual law-making, but has lead to a relative increase in judicial power. Overall, the relative power of judges has been substantively strengthened over the past decades. Nevertheless, legal and political culture still firmly endorses the primacy of parliament in political and legal decision-making, and in weighing the constitutionality of these decisions. A proposal to allow for the constitutional review of acts by the judiciary, tabled in 2002, was regarded with high suspicion, with the chances of it achieving the twothirds parliamentary majority needed for such a constitutional amendment deemed to be very slim. The main reason for this mistrust lies in the self-identification of parliament as the constitutional assembly, with the democratic mandate to judge the constitutionality of its laws and policies. In fact, the House of Representatives often fails to actually 64

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perform this task, which it leaves to the Senate and, above all, the Council of State (WRR 2002). Far from the public eye, this Council advises on proposed legislation, often – for instance in judging compliance with the principle of equality – only holding the proposals to be contrary international treaties, and not even considering their legality in terms of the Constitution. A striking feature of debates in the House of Representatives, found on virtually all sides of the varied political spectrum, is the fear of juridification and of the rise of a claim culture. Searching for ‘juridification’ in the parliamentary debates from 1995 to 2010 generated 1,154 hits, invariably negative.13 ‘Juridification’ was considered a threat in fields as varied as the asylum debate, health insurance, the rights of tenants, prostitution, the conditions of detention, waste processing, the organization of the public space, building permits, discrimination of homosexuals, euthanasia, addressing the economic crisis, the safety of patients and combating unemployment. The notion of a ‘claims culture’ was only invoked 182 times, but by as wide a variety of political parties and in relation to as many different topics. In a debate on health insurances, for instance, one parliamentarian typically remarked: ‘I am very scared of the rise of a claims culture that invites people to try to receive the maximum amount possible. What is needed here is a substantive weighing of the quality of care and life, to be made by professionals and clients.’14 This parliamentary reluctance towards rights talk and a claims culture – and a fear of ‘American situations’ has led, for instance, to much lower compensation of immaterial damages in torts cases than in neighbouring countries (Staatscommissie Grondwet 2010: 44). Even if the traditional parliamentary role of a place for the corporatist management of interests has partially shifted to that of a stage for the ‘drama-democracy’ (Elchardus 2002), its power in relation to the executive has diminished. To some extent, within the context of consensual decision-making, parliament – in particular those parties represented in government – has always functioned more as a partner than as a watchdog to the executive. Te Velde, for instance, considers the layout of parliament, with a secret network of corridors leading to the 13 14

Search conducted on 11 July 2011, with a random sample of 1 out of every 10 hits analysed 2008/2009 parliamentary debate on the bill Wijziging van de Invoerings- en aanpassingswet Zorgverzekeringswet in verband met voortzetting van de subsidiëring van de MEE-organisaties (31550) (Amendment of the Health Care Act with regard to the subsidy of MEE-organizations).

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government – including the tiny tower which houses the Prime Minister – and to the most important advisory bodies as indicative of the decentral, consensual organization of power (Te Velde 2010; Van Waarden 2009: 268). The relative power of the executive, however, has also increased with the rise of the regulatory state and the increased importance of European and international legislation and policies. In looking at the role of rights as a check on this executive power observers have noted with amazement how administrative review did not exist in the Netherlands for most of the twentieth century (Andeweg and Irwin 2002). The Netherlands only established general administrative courts in 1974, and it took an appeal to the European Court of Human Rights to force the Dutch legislator to replace the judicial division of the Council of State with independent administrative chambers within the courts. The Council of State still challenges classic thinking on the separation of powers by combining the role of appeals court in administrative cases and legislative advisor, albeit within two separate departments.15 Policy-making in the Netherlands, according to Andeweg, has classically resembled an orchestra without a conductor (Blankenburg and Bruinsma 1994). Key players in this orchestra are a combination of advisory bodies and corporations, within which opposition is contained and muted (Andeweg and Irwin 2002). There are the high organs of State, with a constitutional status, like the Council of State, the Ombudsman and policy advisors like the Council on Scientific Policies, as well as a variety of advisory councils on various policy matters, corporations of employers and employees, the former denominational interest organizations with a wealth of platforms in which various organizations are assembled. Frissen has sketched the function of these bodies within the political system, emphasizing how ‘corporatist institutions of interest mediation’ play a role in ensuring participation in policy-making and add a longterm horizon to negotiations, particularly as they lead to ‘frequent, protracted, multiple exchanges’ (Frissen 2002). Even if Dutch legal culture is so much in flux that the standard work changed its title from Dutch Legal Culture to Dutch Law in Action, there is a common thread in corporatism and consensualism, a frowning upon litigiousness and adversarialism and an activist judiciary, and an

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The government installed in 2012 announced in its Governmental Agreement that it would change this.

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emphasis on consensual decision-making. Public discussions depart more from the notion of common interests and negotiated outcomes than from the idea of individual rights. This relative lack of rights talk, as we shall see, also pertains to the role of rights in the discussion where one would most obviously expect them: on citizenship. CULTURALISM AND ASSIMILATIONIST CITIZENSHIP

One concept pivotal in allowing for an in-depth understanding of the place of rights in the interrelationship between individuals and the polity at large is that of citizenship. Citizenship, of course, is a widely ambiguous term with a wide variety of meanings. There is Marshall’s classic subdivision into social, political and civil citizenship. Currently scholarship has increasingly juxtaposed a cosmopolitan citizenship centred around universal human rights and respect for diversity with more communitarian versions that emphasize common bonds over the right to differ and can or cannot be covered with an ethno-nationalist sauce (Benhabib 2008: 18–35; Van Gunsteren 1998). With this, the prime locus of citizenship varies from the community, the city, the nation, a region like Europe and the globe. The ties that the term seeks to capture can, at each level, vary from the purely legal (the rights and obligations connected to belonging) to more political (emphasizing participation) to more social, linking the citizenship to the identity of the individual. Essentially contested, the meaning given to citizenship in a particular time, place and context is an important inroad to legal consciousness and legal culture. The Dutch term for citizen is burger, a concept that is, however, closer related to the French bourgeois than citoyen – for which there is no Dutch translation. Viewed semantically, the concept of the burger has been subject to numerous changes over the centuries, whilst always maintaining a common core (Kloek and Tilmans 2002). Being a burger, in the Netherlands, was linked to living in a city and participating in its community from the thirteenth century onwards. As such, being a burger started as a social, and not a legal category, that over time would come to include rights but always emphasized responsibilities. The rise of bourgeois capitalism in the seventeenth century came with an understanding of civic values that emphasized honesty, virtue and politeness. In turn ‘the political variant of citizenship, legal and political citizenship, came about with difficulty, only with French help, and was quickly made devoid of meaning, also after 1813. In the Dutch political tradition, 67

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it seems, the practice of participation via petitions and negotiations was no fruitful ground for revolutionary political alternatives’ (ibid.: 9). The constitution of 1848 would, in this tradition, couple socio-economic and cultural citizenship to political rights. Even with the introduction of universal suffrage, and thus inclusive political citizenship, the notion of burger would continue to stand for the decency, virtue and modesty considered as key Dutch virtues. As Huizinga wrote at the time when historians still dared make statements about national identity: ‘Whether we jump high or low, we Dutch are all burgerlijk, from the notary to the poet and the baron to the proletarian . . . the political features of the republic are rooted in our civic virtues’ (Huizinga 1935). It was only in the 1960s, in the spirit of individual liberation, that this notion of burgerlijk came to acquire an explicitly negative connotation, and symbolize small-town narrowmindedness and lack of individual identity, to be contrasted with the cosmopolitanism and tolerance taken up as the main features of identity. During these years, the term hardly played a role in political discourse. This changed around the turn of the millennium. Hurenkamp and Tonkens demonstrate how the use of the term burgerschap tripled over the period 1995–2005, and came to occupy a central place in policy memoranda and political commentaries. This occurred mostly in reference to education and immigration, in which fields, ‘the reference to burgerschap primarily designates that there should be certain shared norms and values, and that this is currently not the case. It is not about what type of citizenship, but about how there should be more burgerschap, via education, via integration, via the transfer of norms and values’ (Hurenkamp and Tonkens 2008). In short, what came to be promoted since 1995 was a culturalist and assimilationist understanding of citizenship as an attitude that emphasized acceptance by citizens, most notably immigrants, of ‘Dutch’ norms and values. How this happened and what the implications were is well illustrated by a brief examination of the three discussions in which this type of burgerschap became the centre of the debate: the integration of immigrants, the formulation of a Citizenship Charter (Handvest Burgerschap) and the introduction of civic education in Dutch schools. Immigration via integration and citizenship A seismic shift that took place in the Netherlands around the turn of the millennium was the move from multiculturalism as the dominant 68

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discourse in discussing immigration to assimilationism and culturalism (Hurenkamp and Tonkens 2008). Paul Scheffer started the Dutch discussion with his essay on the ‘multicultural drama’ in which he pointed at the segregation and low socio-economic status of many immigrants, and advised the Dutch to explicate their national identity, culture and history in order to transfer them to immigrants (Scheffer 2000). However, it was the triple impact of the 9/11 terrorist attacks in 2001, the murder of Pim Fortuyn in 2002 and of Theo van Gogh in 2003 that stirred politicians to make sweeping policy changes directed towards – mostly Muslim – immigrants. Pim Fortuyn had been the first to bank upon the unease about mass immigration amongst certain parts of the Dutch population, and whilst he did not live to see his party victorious in the 2002 elections, this did bring about a political will focused on ‘clamping down on immigration’. In many ways, the 2003 killing of Van Gogh was the final hole in the dyke that allowed for a radical turnaround of immigration policies, and an emphasis on integration by ethnic minorities and immigrants alike. One important step in this process was the Civic Integration Act. A predecessor to this act, that demanded newcomers take a language test and produce knowledge of Dutch society, was passed as early as 1998. However, under a new government, regulations were severely tightened with the Integration Abroad Act and the Civic Integration Act of 2006. The Integration Abroad Act makes family reunification dependent on spouses having successfully passed an integration exam in the country of origin. The Civic Integration Act requires immigrants to conduct an integration test within three-and-a-half years after their arrival in the Netherlands, and will only obtain a Dutch passport or permanent residency if they succeed. Naturalization, consequently, from being an invitation to integration, came to be dependent on the degree to which immigrants were ‘integrated’ and thus deemed to be able to fully participate in Dutch society (Prins and Saharso 2010: 72–91). Immigrants who obtain the Dutch nationality are obliged to attend a naturalization ceremony and to declare: ‘I swear (declare) that I will respect the constitutional order of the Kingdom of the Netherlands, its freedoms and rights, and I swear (promise) that I will faithfully fulfil my duties as a Dutch citizen.’ One striking emphasis in the integration and naturalization proceedings is the emphasis on responsibilities over rights; an emphasis that is not in line with the actual Dutch constitutional dispensation. The folder on the mandatory declaration of solidarity explains: ‘The rights and 69

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freedoms not only apply to you, but also to your fellow-citizens, and this has to be respected. As a Dutch citizen you are part of Dutch society. This implies that you must do what is necessary to actually be able to live together with others’ (Vermeulen 2007). A booklet on the Dutch constitution for ‘new-comers’, for instance, writes on the cover: ‘New citizens find their place in Dutch society. They soon find out about responsibilities’, to only add later ‘people in the Netherlands do not only have duties, but also rights’ (Ministerie van Justitie 2009). Next to the heavy-handed emphasis on responsibilities, the policy rendition of the Dutch constitutional framework to immigrants – mandatory for their acceptance – also emphasizes acceptance of the norms and values underlying rights like equal treatment over mere knowledge of them (Spijkerboer 2007). The underlying rationale seems to be Verkaaik’s observation: ‘Today’s revival of nationalism, however, defines its key values, such as gender equality, sexual emancipation, and freedom of speech, in opposition to a perception of Islam as essentially unfriendly to women, homosexuals and heretics’ (Verkaaik 2009). Generally, however, the political and legal dimension of citizenship plays a minor role in integration tests and naturalization ceremonies, which are highly culturalist. Even if the exam changes permanently, the versions that become public contain questions that people born in the Netherlands would probably get wrong. One instance is: ‘What would you do after your neighbour has given birth?’ (giving flowers is wrong, sending a card is the correct answer). In questions that do concern rights, emphasizing rights over social mores leads to a wrong answer (and thus to a failed test and a missed residence status). The sample exam posted on the internet, typically about a Muslim girl who works in a nursing home, features the following question: ‘Mrs van Dam was not nice to Zahra, what would be the best thing for her to do?’ Here, the answer ‘file a complaint with her boss’ is incorrect, and ‘Stay calm and tell Mrs Van Dam that she does not like this’ the only acceptable answer.16 Similarly, when an elderly lady says to Zahra’s colleague, who wears a headscarf, ‘How stupid! I never do that!’, the only correct thing for Zahra to do is ‘Explain why her colleague wears a headscarf’. The answer ‘File a complaint against the elderly woman’ is incorrect (as is ‘pretend she

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Via www.inburgeren.nl. The computer does not give the right answers and I am grateful to the two Dutch students who tried until the system indicated that they had answered all questions correctly.

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did not hear’), even though Dutch anti-discrimination legislation allows for these types of complaints. Just like the integration exams, the naturalization ceremonies emphasize norms and values, manners and duties and purport to convey the essence of Dutch culture. Oskar Verkaaik, one of the Dutch anthropologists to observe the seismic shift in the Dutch policy towards immigrants in bewilderment, describes the difficulties that – generally progressive – civil servants had in designing ceremonies which, according to the minister, had to convey ‘who we are’ and ‘our history that has formed our identity’ (Verkaaik 2009: 69–82). This was not without reason. If defining and explicating national identity is always a tricky business, this is arguably even more so in a country that, already in the 1930s, considered ‘the lack of national pride . . . and openness towards the values of others’ as the key national virtue (Huizinga 1935). National identity, as another famous historian wrote, was best treated as a jellyfish on the beach: to be observed with interest, but not touched (Kossman quoted in: Verkuyten 2010). And yet, when – Argentine immigrant – Princess Maxima, at the presentation of a policy report arguing against the usage of a historically fixed and static notion of national identity for policy measures, stated that ‘There is not one national identity’ she was subject to vehement criticism for her ‘politically correct chit-chat’.17 Of course, the policy emphasis on culture and social citizenship, and the way in which this ‘thick’ conception of citizenship was turned into a precondition for political citizenship, was criticized from many sides. Human Rights Watch tellingly titled its first report on the Netherlands ‘Discrimination under the Name of Integration’. Some scholars pointed out how the Dutch policies changed the order of becoming a citizen: ‘the migrant has to become a citizen in the social-psychological sense – and integrate into society – before he can legally become a citizen’ (Vermeulen 2007). Others emphasized how, for immigrants, this formal citizenship is actually only the beginning and how this group is permanently put aside in policy documents as having to integrate into a society and show more citizenship than others in order 17

Máxima Zorreguieta, born in Argentina, was engaged to Crown Prince Willem-Alexander of Orange in 2001. The engagement led to political debate because of her father’s role as a minister under the Argentinian junta. When Willem-Alexander became King of the Netherlands on 30 April 2013, Máxima Zorreguieta assumed the role of Queen. E. Wytzes, ‘Klaar om Koningin te zijn’ (Ready to be Queen), Elsevier, 14 May 2011, p. 18. The report concerned was WRR, Identificatie Met Nederland, vol. 79 (The Hague: WRR/Amsterdam University Press, 2007).

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to complete a process of integration in which – because of the inability to define the end goals – they will never succeed (Schinkel 2008). A key discursive strategy here is the distinction between autochtonen (natives) and allochtonen (the others, Dutch with one foreign parent or grandparent) that is even made in formal statistics, and gives rise to arguments like ‘just like autochtonen, allochtonen are expected to’, with surprisingly little awareness of the racist undertones of this distinction (Geschiere 2009). As the Netherlands made the U-turn from multiculturalism to assimilationism in its immigration policies, a particular conception of citizenship thus occupied the discursive centrepiece. In this conception, rights – and most definitely human rights – were subservient to responsibilities, and citizenship was understood more as a socio-cultural attitude than as a legal-political status. A similar conception, however, also arose in more general Dutch policy debates. Towards a Charter of Responsible Citizenship ‘It sounds like the minister would like another populace’, was but one of the milder responses to government-led attempts, from 2007 onwards, to define and stimulate ‘active’ and ‘responsible’ citizenship. What was the place of rights in these governmental policies that not only targeted immigrants, but also the population at large? The governmental agreement of 2007, closed by the ChristianDemocrats, the Social-Democrats and the Christian Union, stated that ‘All citizens protected by the constitutional freedoms in this country, have the duty to defend these fundamental rights, like the freedom of religion and the freedom of expression, not only for themselves but particularly for others. For this purpose, a Charter of Responsible Citizenship will be developed.’ The aim of such a Charter, as a later policy document stated, was ‘greater social cohesion, more respect and more dedication towards the public good’ (Uitermark 2010). A subsequent policy document coupled responsible citizenship to shared values. ‘This dialogue about our shared values will explicate what we expect from ourselves and each other, and how we engage with one another’ (Bureau Veldkamp 2009: 1). The values concerned, according to the document, were showing respect, engaging with each other, focusing on the future and contributing to society. Rights hardly featured in this analysis of citizenship, but the last element – out of twelve – mentioned was ‘core democratic values’. As the minister explained: ‘Freedom of religion and expression, elected representatives, equality; those are core 72

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democratic values. Democracy means governance by the people, and we are thus all responsible for governmental policies.’ Tellingly, the single reference to human rights in the whole process was to art. 29 of the UDHR, ‘everyone has duties towards the community’, skipping the rights in the Declaration.18 This emphasis on responsibilities and values over rights in the conceptualization of citizenship is in line with public perceptions. A number of opinion surveys shows how the Dutch generally couple citizenship to practical moralism, and ‘a sense of responsibility, helpfulness, cleanliness, caution and reliability’, with good citizens performing ‘social behaviour and showing responsibility towards other people’ (Ministerie van Binnenlandse Zaken 2009: 5). Citizenship, in a public rendition that reflects age-old thinking about the urban bourgeoisie, is mostly coupled to the locality, and the main problem with current-day citizenship is considered to be ‘the lack of respect for one another’ (Dekker, De Hart, and De Beer 2004: 61). During the regional meetings held in preparation for the Charter on Responsible Citizenship it was also this aspect that was named most often. Nevertheless, there was also cynicism about the governmental ambitions, in particular in focus groups organized with individuals less engaged in society: ‘Actually, I am allergic to a government that interferes with everything like this’ (Bureau Veldkamp 2009: 34). The Netherlands is not, of course, the only Western country in which the government has sought to emphasize the responsibilities of citizens as an antidote to a perceived lack of social cohesion and civic unease with the consequences of globalization. Parallel to the Dutch efforts, for instance, the British government brought out a Green Paper on ‘Rights and Responsibilities’. This Green Paper put more emphasis on rights than the Dutch policies, as it concerned ‘the relationship between the citizen and the State and how this relationship can best be defined to protect fundamental freedoms and foster mutual responsibility as this country is going through profound changes’. One commonality, however, was the widespread cynicism encountered by the public servants in both countries who had to carry out the politicians’ plans to formulate the Charters in a participatory manner.19 Another commonality was 18

19

Letter to the House of Representatives on the Charter for Responsible Citizenship, 26 May 2009. Personal observation during an exchange between the Dutch and English civil servants on the process, London, 16 December 2008.

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that the efforts were basically shelved. In the United Kingdom Jack Straw’s ‘ditching’ of the policy proposals in 2009 caused the Liberal Democrats to sigh in relief ‘the last thing we need is a constitution by press release’.20 In the Netherlands, the Charter – originally intended to have next to constitutional status – ended up as a calendar with entries on the importance of issues like taking a new year’s dive, keeping new year’s resolutions, opening up to the other, reading to children, demanding the government to shape up, learning Dutch, eating fair trade chocolate and putting up a Christmas tree together. This, however, hardly meant the end of the governmental attempts towards what Schinkel has called a responsibilization of citizenship in the context of neo-liberal communitarianism (Schinkel 2008). The next government, that consisted of Liberal Democrats and Christian Democrats with the support of the right-wing nationalist Freedom Party, defined citizenship as the core component of its integration policy. The cabinet, it held, ‘expects participation and engagement from all its citizens . . . common rules and demands upon citizens are the foundation of the solidarity expected of citizens in society’ (Ministerie van Vrom VROM/WWI 2007) There were three reasons, the cabinet held, to strengthen ‘engaged’ (betrokken) citizenship: the striving towards smaller government, mobilizing the engagement and responsibility of citizens with respect to their environment, and a search for ways in which to organize participation in times of governmental centralization. In essence, the combination of government withdrawal and heightened emphasis of civic responsibility was visible in a letter on discrimination: ‘Discrimination is the antipode to the spirit of citizenship. It hurts people and stops engagement with society . . . it is up to the inhabitants of this country to shape community and to get rid of prejudice and discrimination . . . It is a civic duty to counter discrimination . . . the cabinet leaves civil responsibility where it belongs: with the citizens themselves. Nevertheless, it can support these processes.’21 This line of thought not only emphasizes the responsibility of citizens for guaranteeing a fundamental right but also explicitly downplays the governmental responsibility in this field.

20

21

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B. Brogan, ‘Humiliation as Jack Straw Ditches Labour’s Unworkable Bill of Rights Pledge, Mail Online, 23 March 2009. Letter of the Ministers of Safety and Justice and of the Interior to the House of Representatives, 30950–34, Racial Discrimination, 7 July 2011.

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A civic education curriculum A final inroad into formal understandings of citizenship in the Netherlands is the educational curriculum. Here, again, citizenship was primarily introduced and conceptualized as part of assimilationist policies directed towards the integration of migrants. In August 2009, for instance, the Dutch State Secretary of Education announced a budget cut at the As-Siddieq Islamic school in Amsterdam because the school had failed to stimulate ‘active citizenship and social integration’, as the Law on Primary Education had required since 2006.22 Whilst the cognitive levels of pupils and their social skills were up to standard, the school had failed to comply with targets in the field of ‘openness towards society and its diversity, and the basic values of a democratic state’.23 The financial sanction was a first in the Netherlands, with its specific understanding of educational freedom as state funding of schools of all denominations and little state interference in the curriculum. In a speech following the widely publicized decision, the State Secretary explained the background to the unusual decision. She quoted a member of the Partij voor de Vrijheid (PVV, Freedom Party) – under the leadership of Geert Wilders – who had asked for a daily hoisting of the Dutch flag and singing of the national anthem. Whereas this, in her opinion, might be taking things a bit far, she did say: ‘How about viewing this flag as a symbol – that stands for shared values, norms, institutions and history. Isn’t it rather normal to feel that these should be passed on via the educational system? . . . We have enough to be proud of: the freedom of expression, equality . . . especially as there are still girls from ethnic minorities who are oppressed by their fathers, brothers or nephews.’24 This explicit connection between the legal requirement that all schools pay attention to active citizenship and the position of ethnic – mostly Muslim – minorities was there from the start. For one, the provisions in the Act, the memorandum and the underlying policy documents are directly copied from reports on Islamic schools by the Education Inspectorate. There are about 35 such schools in the Netherlands, located mostly in the highly urbanized centre (de Randstad) and the 22 23

24

Art. 8(3) Wet op het Primair Onderwijs (Law on Primary Education). Report As-Siddieq, www.onderwijsinspectie.nl/binaries/content/assets/Actueel_publicaties/ 2009/IBS+As-Siddieq+Rapport+van+bevindingen+17+juni+2009.pdf. Speech on 18 November 2009, www.rijksoverheid.nl/onderwerpen/integratie/documenten-enpublicaties/toespraken/2009/11/18/speech-van-staatssecretaris-dijksma-bij-de-kwaliteitsconferentie-po-in-maarssen-op-18-november-2009.html.

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province of Brabant. Their existence is a long-time concern of right-wing politicians, and sparked the demand for a series of Inspectorate reports. A first report, in 1999, concluded that the Islamic schools outperformed the average school where it came to ‘course offerings, time spent on education, structure, build-up of the classes and their organization’.25 The pupils at the Islamic schools also performed better than the average Dutch student. However, the pedagogical climate and degree of professionalization were left wanting. Whilst the 1999 report had only looked into the ‘nature and quality of education’ the Inspectorate was asked by parliament to issue another report, with particular attention to the degree to which schools contributed to the integration of their pupils into society (an issue that – for clarity’s sake – was not part of the schools’ official tasks at the time). This time, the Inspectorate investigated whether the schools created ‘good conditions for the strengthening of social cohesion’ in the Netherlands.26 Again, the general assessment of the Inspectorate was positive: ‘Virtually all Islamic schools opt for an open attitude towards Dutch society and fulfil a positive role in establishing the conditions for social cohesion. Participation in Islamic education most definitely does not form an obstacle towards integration in our society’.27 Critical of both research methodology and the outcome, the political parties clamoured for a new report. This 2003 report, for the first time, introduced the stimulation of active citizenship as well as social integration to educational policy. This report introduced the terminology that would, in 2006, be used in the Act and the supporting policy documents. It defined social integration as the participation of individuals in and their involvement with Dutch society. Social cohesion, the Inspectorate argued, had to be measured taking into account three dimensions: socio-economic integration, social participation and cultural-normative integration. Under cultural-normative integration came the acceptance of the basic values of Dutch society. These values, as the Inspectorate set out, are the ‘basic, 25

26

27

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Onderwijsinspectie, Islamitische Basisscholen in Nederland (Islamic Primary Schools in the Netherlands), February 1999. Onderwijsinspectie, Islamitische Scholen en Sociale Cohesie (Islamic Schools and Social Cohesion), October 2002. The report followed up on an earlier report by the BVD, the Security Service, titled ‘De democratische rechtsorde en islamitisch onderwijs, buitenlandse inmenging en anti-integratieve tendensen’ (the democratic legal order and Islamic education, foreign interference and anti-integration tendencies). Ibid., p. 6.

CULTURALISM AND ASSIMILATIONIST CITIZENSHIP

minimal and widely accepted values that found the democratic rechtsstaat. They are: freedom of expression, equal worth, understanding, tolerance, the rejection of intolerance and the rejection of discrimination.’ The report was released and debated in parliament just after a Dutch muslim had stabbed to death Theo van Gogh, the champion of free speech and staunch supporter of Ayaan Hirsi Ali. In the aftermath of this event, a number of mosques and Islamic schools were attacked and burnt. In a widely cited speech held in the Alkabir mosque the day after the murder, the chair of one of the Amsterdam municipal districts and later mayor of Rotterdam Achmed Aboutaleb stated: I am a propagator of a powerful, diverse city which has a place for everyone. But a diverse city can only thrive if we reach consensus on the basic values that apply to all of us. For those who do not share these basic values, there is no place in an open society like the Netherlands. The freedom of religion, the freedom of expression and nondiscrimination are the most important elements. Those who do not share these values should draw their conclusions and leave.28

It was against this background that the amendments to the education acts were passed through parliament. In the memorandum accompanying the act the government brought to mind how the obligations and skills related to citizenship had become less important over the years. ‘In addition, many parents and children of allochthonous ethnic origin are not rooted in the civil traditions and manners needed to give the social tissue of our society the resilience it needs.’ It is for this reason, the government stated, ‘that the desire to introduce civic education is closely related to the integration of ethnic minorities in our society’.29 This, then, explains the rather specific selection of basic values that schools had to promote, as set out above, of which three basically seem to be the same: tolerance, the rejection of intolerance and the rejection of discrimination. In the 2003 Inspectorate report copied into the regulatory framework, the Inspectorate went to great lengths to explain that it had not invented these values itself. ‘These are not the values of the Inspectorate, or values chosen by the Inspectorate, but general values, communally accepted. You could even say that it doesn’t matter who chooses the values and whether you agree or not, they have a 28 29

‘Toespraak Aboutaleb in de Alkabir Moskee’, 5 November 2004, www.amsterdam.nl. House of Representatives, Explanatory Memorandum to the Bill on Active Citizenship (29 959, no. 3).

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‘universal aspiration’”. Such principles, the Inspectorate argued, had to have both universal aspiration as well as a form of democratic legitimation, for instance through their being included in legislation.30 The main sources of these values, the Inspectorate argued, were the Dutch Constitution and the Universal Declaration of Human Rights. Be this as it may, the rights that are emphasized do form a rather specific selection from both the UDHR and the Dutch Constitution. They do not, for instance, incorporate the freedom of religion, the right to privacy and the right to a fair trial. Political rights such as the right to participate freely in elections are not mentioned and neither are the whole set of social, economic and cultural rights included in the legal instruments concerned. Even if the Dutch prime minister at the time often stated that ‘the respect for minorities is the litmus test of all democracies’, it seems as though those rights that value difference over equality were conveniently left out of this particular understanding of the basic values of Dutch society. In taking this approach, the provisions on ‘active citizenship’ seemed tailor-made to address concerns – partly fictional, as the Inspectorate had pointed out earlier – about Islamic schools. They would, however, also prove to reflect and contribute to a fundamental shift in the Dutch educational system, from a firm foundation of multiculturalism to a locus for governmental attempts to stimulate assimilation. Of course, the provision required all Dutch schools to pay attention to these topics, and thus came to question long-standing rights and deeprooted agreements with other religious schools like the Reformed schools. As will be discussed in Chapter 8, the position on homosexuality taught within these staunchly religious institutions, which often require girls to wear skirts, families to refrain from watching television and teachers to be married, has long been a matter of concern to liberal and socialist parties in the Netherlands. The introduction of an Equal Treatment Act in the Netherlands in 199331 has made this social discussion into a legal one as well. Amidst many policy and legal attempts to address the general position communicated within these schools – that homosexuality is a sin32 – the promotion of ‘active citizenship’ quickly also became a tool. In the speech on active citizenship 30

31

32

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Inspectie van het Onderwijs, 2003 Report; also 2006 Report, Toezicht op Burgerschap en Integratie (Quality Assurance, Citizenship and Integration). Following the introduction of a non-discrimination provision as art. 1 of the Constitution in 1983. See Vereniging Gereformeerd Schoolonderwijs, 2008.

CONCLUSION

by the state secretary quoted earlier she lumped together Islamic and Reformed schools as places where the freedom of thought could be at risk. Furiously, the political representative of the Reformed Party (which has two seats in parliament) asked the State Secretary whether she recognized that the ‘citizenship problems that you attempt to address in Islamic schools should not be associated with Christian schools’ which since the founding of parliamentary democracy have functioned well within the educational system?’33 Not impressed, the State Secretary answered that the assignment in the field of citizenship education applied to all schools and threatened to take measures against all those schools that did not comply, whatever their denomination. Whereas the Council of State ruled, in 2011, that the As Siddieq school had paid enough attention to ‘active citizenship’ and should thus not have had cut its budget, the conceptualization of citizenship and the context in which it was invoked provided another example of the ‘rights-free’ citizenship central to Dutch policy debates after the turn of the millennium.34 CONCLUSION

This chapter has sought to set out the specific place of rights in Dutch political and legal culture, emphasizing that rights as such have a relatively small place in the public imagination. There are, of course, some rights deemed more important than others: equal treatment, the freedom of expression, the freedom of religion and the freedom of education. In political culture one can detect a common principle in corporatism and consensualism, a frowning upon litigiousness and adversarialism and an activist judiciary, and an emphasis on consensual decision-making. This, in the context of strengthening immigration policies, has translated into assimilationist conceptions of citizenship that have found their way into civic integration policies, a Charter on Responsible Citizenship and civic education policies. Having investigated the place of rights – one of constant negotiation – in the individual and collective mind, the next chapter looks into the role of various actors in implementing them. 33 34

House of Representatatives, Questions by Mr Van der Vlies (2009–2010, 891). Council of State, 201006801/1/H2, Foundation Islamic Schools Amsterdam v The Minister of Education, 30 March 2011.

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C H A P T E R 4

THE STRUGGLE OVER HUMAN RIGHTS EDUCATION

Wondering why my first-year Dutch law students know so much less about human rights than their international peers, I learn about the persistent international critiques on the lack of human rights education in the Netherlands. One day, when the prime minister has repeated his call for more ‘norms and values’, I write an op-ed titled: ‘Norms and values? Human rights!’ Not much later the phone rings: an old Unesco acquaintance asks whether I would like to chair the Netherlands Platform for Human Rights Education, an organization of which I’d never heard.

In presenting the theoretical framework for understanding the place of human rights in framing social and political problems in the Netherlands, this chapter moves from a focus on the law, and on legal culture and legal consciousness, to the role of different actors in human rights implementation. It does so by focusing on one particular case, that of human rights education. One reason for this is my personal familiarity with this topic. Another is that knowledge of international human rights plays a key role in their realization. More importantly, however, one ethnographic case study allows for a deeper and more nuanced insight into the politics and the negotiations by organizations and individuals surrounding human rights implementation. Additionally, the enhanced international focus on human rights education worldwide exemplifies the rise of rights as a discursive framework and a soft law instrument worldwide. The right to human rights education is incorporated in many international treaties, but has gained increasing prominence over the past fifteen years (Ministerie van Vrom VROM/WWI 2007: 67). Typical treaty formulations are those in which parties agree that ‘The education of the child shall be directed towards . . . the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations’ (art. 29(1)(b) CRC) or that education will ‘strengthen the respect for human rights and fundamental freedoms’ and ‘enable all persons to participate effectively 80

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in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace’ (art. 13(1) ICESCR). Since its central role in the Vienna Declaration of 1993, the United Nations have applied every instrument at their disposal to strengthen human rights education: declaring both a year and a decade of human rights education, putting in place a special office for it at the OHCHR and a World Programme of Human Rights Education that involved national action plans, and also adopting – in 2011 – a Declaration on Human Rights Education.1 Whilst there are many definitions of human rights education, a common core emphasizes skills and attitudes next to knowledge of human rights (Bajaj 2011: 481–508). The World Programme of Action, for instance, states how ‘A comprehensive education in human rights not only provides knowledge about human rights and the mechanisms that protect them, but also imparts the skills needed to promote, defend and apply human rights in daily life. Human rights education fosters the attitudes and behaviours needed to uphold human rights for all members of society’ (Tibbits 2005: 107–13). This programme went on to oblige states to set up national plans of action that minimally included an analysis of the current situation, the development of a national implementation strategy and its initial implementation. Next to the UN, the Council of Europe is also very active in standard-setting and policy-making in this field, with a specific emphasis on the relationship between human rights education to education for democratic citizenship.2 The emphasis in these efforts is mostly on formal education, although it is striking to see that most of the work concerning human rights awareness amongst adults is targeted at those people least well-placed to uphold these rights, like refugees (United Nations, UNESCO and OHCHR 2006). Within the context of its human rights exportism, the Netherlands is a staunch supporter of human rights education. The government, for instance, is one of the sponsors of the Human Rights Education Associates, that runs an online ‘listserv’ and ‘epistemic community’ with over 5,000 members, and thus plays a ‘salutory role’ in facilitating 1

2

Resolution adopted by the Human Rights Council, 16/1 United Nations Declaration on Human Rights Education and Training, A/HRC/RES/16/1. Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education: Adopted in the Framework of Recommendation CM/Rec(2010)7 of the Committee of Ministers (2010).

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discussions in this field (Massoud 2011: 1–32). Upon the adoption of the UN World Programme on Human Rights Education the Dutch representative poetically stated ‘Let us teach, let us train, let us educate and let us learn . . . let us never fail to remember our obligation to promote and protect human rights.’3 In line with this vision, human rights education became a core feature in the human rights strategy for Dutch foreign policy formulated in 2007 (Bajaj 2011: 485). Within the domestic context, however, human rights hardly figure in formal education policies. They are named as an instructional objective for the first years of secondary education, but not for the final phase or for primary education. As has been set out in the last chapter, the provisions on promoting citizenship were worked out to emphasize the ‘basic values’ of Dutch society.4 The Netherlands does not know a state curriculum, but the documents that are decided on centrally, like exam programmes and core curricula, do not feature human rights: in history, for instance, learning about the Second World War is mandatory, but about the UDHR is not. Similarly, high school children are expected to explain why people commit genocide, but need not know about the Genocide Convention and the ICC. Research into the main textbooks used in history and geography found that, whilst there were ample opportunities to teach about human rights, these were generally not taken up (Hermans et al. 2008). This lack of attention is reflected in the knowledge and attitudes pertaining to democratic and global citizenship in the comparative research, where Dutch students obtain surprisingly low results. This chapter, in seeking to illuminate the role of actors in human rights implementation, investigates the attempts of Dutch civil society to mobilize international human rights law to give this type of education a place within the formal educational curriculum. It focuses on one cabinet period, from 2007–10, starting with the year in which the national plan of action was enthusiastically announced and ending in the year in which it ‘sank without a trace’. The focus on the work of human rights NGOs as a vantage point for understanding the relative role of different actors in human rights

3 4

UN Press Release, GA/10317. Wet op het Primair Onderwijs (Law on Primary Education), Wet op het Voortgezet Onderwijs (Law on Secondary Education). Human rights are only named in art. 47 of the Besluit Kerndoelen Onderbouw Voortgezet Onderwijs (Regulation Instructional Objectives for Secondary Education).

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implementation is legitimated by the abundant literature pointing out the key role of civil society in this field (Goodhart 2009: 2–8). Civil society, as a site of political action and political activism, is ‘characterized by shared political interests/values but also sometimes by fractious debate, by self-empowerment, agenda-setting, demands for accountability and issue and identity politics’ (Gready 2004: 2). For all the diverse efforts of human rights NGOs, human rights education is often a key feature. Whereas the key role of these NGOs in activating the ‘human rights spiral’ is widely recognized, there is relatively less attention for the diversity of interests promoted by NGOs, their lack of representativeness and the way in which the resources that are available also tend to determine agendas. Clifford, for instance, argues how resources, links with international actors, organizational cohesiveness and leadership explain why some NGOs are more successful than others (see Clifford 2002: 133–47). Similarly, the literature on human rights NGOs often does not pay attention in depth to the role of individuals, be it in setting human rights standards (as in the case of Raphael Lemski’s influence on the Genocide Convention) or in facilitating their introduction within a particular context (like the legislator who snuck CERD into San Francisco legislation as described by Davis). In addition, a social constructivist and thus actor-oriented perspective on human rights implementation has to take note of the variety of actors other than the executive, the legislature, the courts and NGOs: the media, academia, policy think tanks, commercial organizations, teacher associations, ‘lone wolves’ writing in the media, non-fiction authors and many others. In taking such an approach, this chapter will first map out the most important actors in promoting but also obstructing the implementation of the international human rights relevant to human rights education in the Netherlands: the varied organizations under the umbrella of civil society, the international institutions involved, the different government departments and the civil servants that work there, ministers and parliamentarians with their agendas and the wide variety of other organizations and individuals able to exert influence in this matter. Subsequently, I describe five different patterns of interaction between these actors leading to different dynamics of rights implementation and their effectiveness from a civil society perspective: ‘waving treaties’, putting the issue on the political agenda, vernacularization, mobilizing a broader support base, and litigation.

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ACTORS NEGOTIATING HUMAN RIGHTS EDUCATION At the first meeting, in a run-down office next to the Utrecht railway station, I find a colourful assemblage of NGOs – large (Amnesty), medium (the Center for Global Education) and tiny (the Dutch chapter of the Association of Christians against Torture). In line with the Dutch discussion democracy there is a host of observers: ministries and companies developing educational materials. Within weeks, the Mindmap on my computer organizing ‘people to contact’ resembles a flower with many petals. NGOS

Behind the fuzzy but generally reassuring image of civil society in human rights implementation lies a variety of organizations, with individuals inside them, each with their own agendas, resources and conceptualization of State–society relations. The fifteen-member Platform on Human Rights Education, for all the egalitarianism suggested by its name, covers well-funded and fiercely independent organizations like Amnesty International and the Netherlands Red Cross, each with special education departments. But it also includes tiny NGOs run by volunteers who have difficulty finding the time to meet next to their daytime jobs and represent a much smaller constituency. Whilst the interrelationship between NGOs and the government is always fraught with tension and ambivalence, there are big differences in the degree of independence from the government, and thus – arguably – the willingness to take a more adversarial position (Merry 2006a). Organizations like the Collective for the Rights of the Child, for instance, depend fully on governmental funding for carrying out their educational agenda, with the government ‘outsourcing’ its obligations in this field to these NGOs. In addition, each NGO has its specific thematic focus that determines the contents of this form of civil society advocacy. Defence for Children will, understandably, always seek to advocate for inclusion of attention for human and children’s rights in policy documentation. The Association against Torture will seek attention for this topic, the Red Cross will press for attention to humanitarian law, the Netherlands United Nations Organization will find this institution more important than the EU or the Council of Europe. Additionally, human rights concerns not represented in a civil society collective like this – for instance racial and gender equality, or cultural rights – run the risk of not being included in policy advice and lobbying activities. 84

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A key factor in explaining why certain NGO voices will be heard more loudly than others is the availability of resources. On the one hand, internet and social media have democratized advocacy, allowing everyone with a computer to set up an e-mail account and a website and send out messages and organize (electronic) petitions. More advanced lobbying, on the other hand, benefits from letter-headed paper and business cards. More importantly, the success of lobbying depends on the degree to which individuals have the time to meet with relevant actors, reframe demands to align them with the concerns of their conversation partners and to travel abroad to speak to international monitoring bodies. In all these activities, social and cultural capital matters, as do connections with global civil society and hard cash for financing the activities. INTERNATIONAL MONITORING BODIES

An increasingly important group of actors in human rights implementation are the treaty monitoring bodies and other international organizations with an interest in human rights education. Within the UN system alone, treaties like CERD, the ICCPR, the ICESCR, CEDAW, CAT and the CRC all have their own monitoring mechanisms in which state parties typically submit a report every four years. These are scrutinized by a committee of experts in New York or Geneva and lead to concluding observations on the degree to which the country concerned complies with treaty obligations. A recent UN addition is the Universal Periodic Review (UPR) run by the Human Rights Council, that comprises an integrated ‘human rights exam’. In the Netherlands, the various Concluding Observations are typically sent to Parliament, with a governmental response to the concerns raised in them. The highly ritualized exchange of documents and discussions on them by governmental representatives and members of the UN Committee are generally coordinated by the Department of Foreign Affairs, which solicits input from other departments. Dutch reports tend to write extensive reports which are generally handed in on time, with civil society often putting together a more critical shadow report. Both the contents of the government reports and of shadow reports are strongly influenced by the individuals involved in the writing. If the Department of Social Affairs, for instance, has a strong hand in writing up the report this becomes clear from the topics presented. Similarly, the shadow reports generally reflect the interests of the NGOs that drew them up. 85

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In virtually all reporting procedures, there is a public hearing with high-ranking public officials, or even government ministers, answering the questions raised by the UN body concerned. Whilst NGOs are generally not allowed to speak here they can often present their views in advance, and sit in the audience. In addition, the hallways and lunches surrounding the meetings, and more official ‘side-events’, contain widely recognized possibilities for lobbying for certain recommendations. Generally, UN meetings have become increasingly accessible for civil society. Whereas a formal observer status was required in the past, many proceedings currently allow any organization to fill in an attendance form via the internet, submit its views, pick up an official NGO-badge before the hearings and attend – and often influence – the proceedings. Which organizations actually do this depends, again, on the available resources, resulting in a skewed picture of the human rights violations in the country concerned. The quality of the actual country assessment not only depends on who, from the side of the government and of the NGOs, actually submits information, but also on who assesses it. One reason for this is the high workload of the Committees, which often ‘do’ a number of countries during a session, next to deliberating on other measures (Tobias 2009: 777–800). In the words of one committee member: ‘You literally receive boxes full of documentation, with an empty space left next to you on the table to pile them up. Without assistance, there is no way in which you can actually read them all. I choose to concentrate on the countries with the worst human rights record, and to hire a student-assistant with my own money to do background research on them. To countries like Canada I basically pay less attention.’5 Apart from pre-selecting on the basis of the gravity of the offences, committee members will also emphasize their own interests. In addition, many country representatives are not – as is formally the case – independent experts but politicians or government representatives, who might spend the discussion sessions dozing away.6 For instance, Krommendijk, in interviews with Dutch civil servants, found that they consider the CEDAW committee to lack basic knowledge about the national context and at times to even lack independence (Krommendijk 2010; Krommendijk 2011).7 5 6 7

Interview UN Committee member, 10 November 2010. Personal observation. Cf. Alston, 2011: 561–649; O’Flaherty, 2006: 27–52. See final report on enhancing the long-term effectiveness of the United Nations human rights treaty system, 27 March 1997, E/CN.4/1997/74 at para. 109.

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This lack of insight into the national context can even cause problems for human rights advocacy: the 2008 recommendation to the Netherlands by the Council of Europe Commission against Racism and Intolerance (ECRI) to ‘make human rights, including nondiscrimination, a compulsory subject at both primary and secondary school levels’ was widely derided for its lack of understanding of the Dutch constitutional context in which it is not up to ‘The Hague’ to order the introduction of a whole new topic (Krommendijk 2010; Krommendijk 2011) . ‘What do they think, in Strasbourg, that we are like France where the president can look up on the national timetable when schoolchildren take geography?’, as one commentator snarled.8 For years after the recommendation, any comment on the lack of human rights education in the Netherlands was put in the same category as the ECRI proposal and immediately disposed of. The ECRI recommendations only received public attention in the Netherlands because the Commission’s chair was a former Dutch minister, with good connections to the press. Generally, both the Concluding Observations and the governmental response to them appear to have gone unnoticed by both Parliament and the press. The governmental responses can be divided into three categories: that the committee’s ‘principal areas of concern’ are actually already addressed by governmental policy, that the government has the intention to change its policies, or that the government has no intention to do so. In responding to critiques on the lack of human rights education, for instance, the Dutch government, oscillated between pointing out that human rights already featured in the educational curriculum and stating that it could not implement the recommendation because of the freedom of education.9 As a result, the same concerns on human rights education are raised every monitoring cycle with little noticeable impact.10 The civil servants In spite of initial promises, it soon becomes clear that the Dutch government has no intention to draw up a national action plan on human rights education. However, in the 2008 UPR report the government states that it ‘has devised an action plan together with relevant stakeholders to 8 10

9 Personal communication. See, for instance, A/HRC/WG.6/1/NLD/1 at 81. See for the Commission on the Rights of the Child: CRC/C/90 (1999) at 252 ; CRC/C/15/ Add.227 at 52; CRC/C/NLD/CO/3 at 23; for CERD CERD 28TH No. 18 (A/9018) (1973); CERD/C/64/CO/7 at 10; For CEDAW: CEDAW/C/NLD/CO/4; CEDAW/C/NLD/CO/5 at 17

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consolidate and more clearly define the place of human rights education in society’.11 Flabbergasted, I call the civil servant responsible and ask him what accounts for such a blatant lie. ‘Ha’, he says, ‘you teach in English, don’t you? “To devise” means both to imagine and to carry out – and thus allows me to please both audiences.’ But how, I ask, did he expect to get away with this? ‘Well, the thing is, I am actually not used to ayone reading these texts.’

The role of individual civil servants in facilitating or obstructing human rights implementation, and the degree to which departmental and individual agendas in this field can differ, cannot be overestimated. For one, it is often the civil servants in the ministry of foreign affairs who are involved in the process of standard setting and the word-byword, draft-by-draft negotiations that are presented as highly legal and technical, but are of course also intrinsically political (Krommendijk 2010). Here, other departments are only involved sporadically, just as parliamentarians do not play a role: ‘Well, I suppose you could ask Parliament for its ideas, but what if it would end up not wanting the treaty concerned? The negotiations will continue anyway, with 193 countries, and you want to be there with your expertise to have a realistic and manageable text.’12 Even if civil servants leave the Hague with formal instructions, they have a great deal of negotiating freedom. Peters, for instance, states that many civil servants write their own instructions, and never report back to the minister (or at all) on the outcomes of international negotiations (Peters 2010). Bovens, whilst lamenting the lack of empirical research in this field, states how the displacement of politics from the national to the international arena has substantively strengthened the power of civil servants, with the Dutch permanent representative at the EU as the leader of a virtual shadow cabinet. A danger here is that the foreign affairs officials enter into commitments not supported by, or even known to, other departments. The National Action Plan on Human Rights Education is a telling example of the difficulties involved in a policy context that has been named ‘The Kingdom of the Thirteen Divided Ministries’ (Reiding 2007). The UN resolution to draw up such a plan was enthusiastically endorsed by the Ministry of Foreign Affairs. The Minister of the Interior, as ‘guardian of the constitution’ took up the efforts of drawing up an action plan, and 11 12

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A/HRC/WG.6/1/NLD/1 at 81. Interview, legal representative Ministry of Foreign Affairs, 29 November 2010.

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organized a start-up meeting with civil society and all interested parties. The project coordinator, amongst others, invited civil servants from the Ministry of Education who – over coffee – grumbled that this was the first time that they heard about the commitments. The tension that this caused between departments would, in subsequent years, be one of the main reasons why the plan never materialized; the main governmental departments involved had strongly differing interests. The Ministry of Foreign Affairs would, for instance, introduce human rights as a cornerstone of cabinet policies in a 2007 policy memorandum, emphasizing the interconnectedness between domestic and international efforts to support human rights (Ministry of Foreign Affairs 2007). The human rights department tripled in size, with highlevel appointments, a pro-active human rights ambassador and civil servants who exchanged mobile numbers and generally teamed up with civil society in efforts to set up a human rights institute and introduce human rights education. At the Ministry of the Interior, however, a junior civil servant was mandated to write the plan: ‘It was my first job, and we soon found out that there was real bureaucratic obstruction in the Ministry of Education. In my department it did not have political priority either, also because it’s hard to set out the actual benefits of human rights education. At some point my tasks were taken over by a senior bureaucrat who had more eye for the chances of the plan succeeding, and who completely focused on the human rights institute instead.’13 The lack of priority given to the topic was confirmed during a discussion with the Minister of the Interior, who, when asked about the plan, looked at her assistant in bewilderment: ‘Am I preparing an action plan on human rights education?’14 During the discussion with this minister the power of civil servants to assist or obstruct also became clear: whilst the minister promised to immediately free up personnel and resources to work on human rights education, the senior civil servant, in corresponding on the minutes of the meeting ‘had not actually heard this’ and refused to write it in. The civil servants at yet another department, the Ministry for Youth, were faced with another problem. Their minister quickly decided to adopt the Convention on the Rights of the Child as a basis for all his policies, and – after having been questioned on the lack of human rights education – immediately promised to follow up on the recommendation. However, as a minister appointed to secure 13 14

Interview, former civil servant at the Ministry of the Interior, 19 July 2010. Personal communication, 14 January 2009.

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attention for one particular theme – youth – and with a small department, he did not have the same weight as the Minister for Education and was forced to withdraw his promises in the field. The main resistance against implementing the UN resolution thus lay with the Ministry of Education. Here, it is important to go a step further and also point at the different departments within a ministry. A topic like human rights education falls under the international affairs desk, which is mainly occupied by attending international conferences and treaty reporting, and has very little contact with the departments working on, for instance, civic education in primary and secondary schools. ‘My assessment was that international affairs had little to say in the department, especially at a time when everyone focused on language skills and reading.’15 Nevertheless, civil servants do hold the power to keep something off the departmental and, definitely, the ministerial agenda: requests from the Platform on Human Rights Education to meet with the minister were invariably met, after months, with a letter stating that this ‘was typically a matter to be discussed at the administrative level (in ambtelijk gremium)’.16 Politicians and parliamentarians The different agendas are also visible at the ministerial level, where they are determined by political colour, departmental priorities, personal preferences and power balances. Within the period concerned, the Christian-Democratic minister – if only to effectively invoke human rights in foreign policies – had a great interest in implementing human rights obligations in the Netherlands, and personally endorsed the importance of human rights education. The Social-Democratic Minister of Education, in contrast, had an agenda of leaving schools alone after a parliamentary commission had officially declared decades of large-scale social engineering projects in the field of education a failure (Commissie Parlementair Onderzoek Onderwijsvernieuwingen 2008). The focus, the minister and the state secretaries in this department held, would be on language skills and mathematics alone. For the Minister of the Interior, the ‘core values’ of Dutch society were a more expedient policy framework, and the Minister for Youth Affairs – as described – lacked the political clout and the formal mandate to introduce children’s rights education. 15 16

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Interview, former civil servant at the Ministry of the Interior, 19 July 2010. Letter Minister of Education to the NPHRE, 14 July 2008.

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If ministers still have entire departments to work on their policy preferences, parliamentarians in the Netherlands are typically onestop-shops, with at best one personal assistant. They are overloaded with information and are under strong pressure to score in the media. In the ‘drama-democracy’ parliamentary priorities are generally determined more by newspaper headlines than by the ability to engage persistently and over a long time period with tenacious policy issues, thus making it important for advocacy groups to first solicit media attention for a particular topic, and subsequently engage parliamentarians (Elchardus 2002). In his PhD thesis ‘So, how do we tell Parliament?’ Enthoven quotes a parliamentarian who states: ‘There is no Parliament, there are 150 one-person shops. You find yourself ploughing through a 300-page explanatory memorandum. I receive at least 100–150 emails a day, and 1.5 kilos of postage’ (Enthoven 2011). This enables the administration to ‘hide’ information by leaving it out of the summaries, or sending it to parliament too late for the parliamentarians to read (ibid.). This lack of time, of course, also creates ample opportunities for advocacy groups to exert influence, propose parliamentary motions, write parts of speeches and more generally influence parliamentary proceedings. Even if the Netherlands lacks the American tradition of rigid research into lobbying, journalist Luyendijk describes how the ‘Nieuwspoort’ bar in parliament serves as a hub for the encounter of lobbyists, the media and parliamentarians which are strongly entangled and often change roles (Luyendijk 2010). Other actors Whilst the role of NGOs, the media and the executive and parliament in human rights implementation receives ample attention in the literature, there is a wealth of advisory bodies, quasi-NGOs, companies, inspectorates, local and provincial governments that are just as important. This is even more so in the context of privatization and ‘horizontalization’ (Bovens 2003) of policy-making and in a field like education in which the government explicitly wants to play a limited role, but where it simultaneously spends a great deal of money and sees the potential to attain a number of its social, cultural and economic ambitions. The corporatist and consensualist culture in the Netherlands, in which policy-making is compared to an ‘orchestra without a conductor’ also accounts for the diversity of actors nudging policies in, or away from, a certain direction (Andeweg and Irwin 2002). Although it is impossible to 91

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describe the whole range of actors that could potentially play a role in the introduction of human rights in the formal educational curriculum, the following paragraphs will highlight some of them. In the drawing up of governmental policies in the Netherlands, a wide variety of statutory and ad hoc advisory commissions is very important. The Educational Council, for instance, issued a number of policy briefs on civic education which paid relatively little attention to human rights education, and was responsible for the official governmental definition of civic education as ‘the preparedness and the ability to actively contribute to the community’ (Onderwijsraad 2003: 10).17 Whilst other advisory bodies, like the Scientific Council for Governmental Policies, emphasized the role of democratic education and human rights, they had less influence on educational policies than the Educational Council (ibid.). A specially formed ‘Commission on Communicating the Essence of the Rule of Law’ (Commissie Uitdragen Kernwaarden Rechtsstaat) could have influenced the discussion, but – in spite of letters from human rights NGOs – decided to focus on the ‘basic values of Dutch society’: freedom, equality and solidarity (WRR 2002) . Even if all these commissions are formally independent, there is generally frequent contact with the most relevant government departments to ‘sound out’ whether the draft advices stand a chance of being accepted. In the Commission on Human Rights of the Advisory Council on International Affairs, for instance, it is common that civil servants sit in the meetings and elucidate the position of the minister and – more frequently – that of the department itself. Less visible, but equally important, are the expert commissions that draw up the ‘core curricula’ for topics like history, civic education, social sciences and geography. The Platform on Human Rights Education, for instance, wrote a letter arguing for the inclusion of basic knowledge of human rights to the commission drawing up the social science curriculum. This was unsuccessful; the only instructional objective to be included that was remotely related was the objective that the student would have to be able to ‘indicate which values are considered as generally accepted in a secular society and how these values are visible in the Dutch Constitution’ (Commissie Uitdragen Kernwaarden van de 17

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After intensive lobbying, it did mention the importance of human rights education in a 2012 report on civic education, be it more as an aside than as part of the central argument and without attention to the binding nature of treaty obligations in this field: Onderwijsraad, Verder Met Burgerschap in Het Onderwijs (The Hague: Onderwijsraad, 2012).

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Rechtsstaat 2008: 92). Similarly, an attempt to convince the Commisison on the Historical Canon to include attention to the formulation of the UDHR as something that should be included in history classes was unsuccessful. Another key player in developing educational policies are the many quasi-NGOs and businesses in the field of curriculum development and the production of learning materials. As the government increasingly withdraws from society, it funds organizations like the Foundation for Curriculum Development (which is wholly dependent on government funding) to develop core curricula in the field of civic education which can serve as ‘inspiration’ for schools, in close coordination with the education inspectorate and the ministry. It is for this reason that the Platform on Human Rights Education convinced the Minister of Foreign Affairs to commission the same foundation to develop a curriculum that integrated human rights and civic education, with the actual terms of reference negotiated extensively with the Minister of Education. In addition, there are the truly commercial publishing companies, about which a representative stated: ‘the easiest way to ensure more attention for human rights education is to buy pages in the textbook, this is what the relevant ministries did when they wanted to promote personal finances and attention for the environment’.18 In the absence of a national curriculum, ‘output-steering’ is also an important instrument in influencing educational policies. The Inspectorate for Education, for instance, is responsible for monitoring the Inspection Framework on Active Citizenship and Social Integration which it developed in close coordination with the ministry.19 Here, schools have to pay attention to two out of the following four topics: social skills, an open attitude towards society, basic values and the rule of law, and the school as a place for practising active citizenship. In the explanation of what is meant by the optional attention for ‘basic values’, human rights as such are not mentioned, although the freedom of expression, equal dignity, respect for others and tolerance are. In the years after the introduction of active citizenship as an educational objective, the Inspectorate, in its yearly reports, expressed concern that schools would generally opt for a focus on social skills and much less 18 19

Personal communication and e-mail, April 2008. Toezichtkader Actief Burgerschap en Sociale Integratie, 2 October 2006, which works out the general provision in art. 8(3) Law on Primary Education, art. 17 Law on Secondary Education and art. 11(3) Law on Expert Centres.

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often for learning about other cultures or democratic citizenship (Inspectie van het Onderwijs 2008). Next to the mandatory framework, soft law monitoring instruments and their contents are very important. ‘What you should consider is the development of quality assurance cards on democratic citizenship and human rights education’, a member of the Education Board stated. ‘This has really made a difference in improving the quality of mathematics education’.20 Similarly, a method for measuring civic education, developed by the University of Amsterdam, quickly became the standard used by schools. This method focused strongly on social citizenship, with questions like: ‘Do you clean up after picnicking in the park?’ Citizenship skills, here, were defined as ‘the ability to act adequately in social situations that occur in everyday life’ (Ten Dam et al. 2010). Civil society, as a result, attempted to point out that the type of knowledge and attitude measured by this method diverted from international civic education measuring methods, according to which Dutch students scored so poorly on questions like ‘Do you feel that immigrants should have the same rights as others?’ (Maslowski et al. 2010). With the reticence of the national government in actually implementing its human rights obligations in this field, a classic NGO strategy is to support those cities and provinces which would like to take the lead in the field of implementing human rights. In the municipality of Amsterdam, for instance, with inhabitants from all over the world, a municipal councillor asked for more attention to human rights education, with the result that suitcases with human rights materials were sent to all schools. Similarly, the Utrecht choice to market itself as a ‘human rights city’ led to a policy interest in human rights education and projects in this fields, as did the connection between the Province of Zeeland and the Four Freedom Awards. Apart from, obviously, the teachers themselves and their representatives, and the courts, which will figure in the next section, other actors to possibly play a role in convincing the government to comply with this particular human rights obligation, are the National Human Rights Institute and the Ombudsman for Children (Kinderombudsman). There are a number of commonalities between the two: their establishment is strongly promoted at the international level, they have a formal role to play in human rights education, and actually putting them in place in 20

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Personal communication, 15 September 2010.

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the Netherlands took much longer than in many other countries. The NHRI, for instance, an obligation established in the Paris Principles as a key instrument in the UN agenda of ‘nationalizing’ human rights obligations and thus carrying out the Vienna agenda, only opened its doors in 2013.21 Similarly, the Ombudsman for Children was only installed after a protracted NGO lobby with substantive pressure from Parliament and the international community. There are thus a variety of institutions and individuals that potentially play a role in ensuring that the Dutch government complies with this particular human rights obligation. Consequently, there are different ways in which civil society can engage with these actors, from constructive and cooperative to outright adversarial, and with an emphasis on either international obligations or bottom-up support. Based on the experiences of the NPHRE, the following sections will assess the effectiveness of different advocacy strategies from a civil society perspective, against the background of the wider literature on these topics. DYNAMICS OF HUMAN RIGHTS IMPLEMENTATION

There are different ways in which a civil society organization can convince a government to comply with its human rights obligations, where this entails an alteration of the formal educational curriculum to include human rights education. In the following paragraphs, the effectiveness of a number of five of these strategies will be discussed: ‘waving treaties’, generating political pressure, vernacularization of human rights obligations, building broad coalitions, and public interest litigation. These strategies, to a large extent, represent a learning curve for the NPHRE, to be used cumulatively. Other types of human rights obligations, and contexts, would undoubtedly lead to other types of advocacy (Handmaker 2009). ‘Waving treaties’ It has taken pressure from three other ministers, a Parliamentary motion and a flurry of media attention, but the NPHRE is finally invited to see the Minister for Education. After having taken a picture with his

21

Wet College voor de Rechten van de Mens, (Law of the Netherlands Human Rights Institute), 24 November 2011, 573. Art. 3d holds that the Institute will provide and coordinate human rights education.

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Hasselblad camera – a habit followed with fascination by the media – he listens to the grievances, to at some point irritably state ‘Now, don’t you start waving treaties at me’.

Arguably the most classic civil society strategy in nudging the state into compliance with its human rights commitments is by pointing out the violations to international human rights bodies and thus soliciting critiques that can subsequently be mobilized within the national context. Whilst a great deal of civil society energy goes into the easily accessible activity of drawing up shadow reports and speaking to UN bodies, the effectiveness of such strategies in countries that are not dependent on foreign aid and thus do not need a high score on development yardsticks can be doubted. The recommendations given by these bodies are often very general, non-compliance does not lead to formal sanctions, there is virtually no inherent political or press interest in (or knowledge of) the procedures and reference to ‘human rights violations’ in the Netherlands can also cause severe irritation. The accessibility of the monitoring procedures can be illustrated via an account of the visit of the Council of Europe Commissioner on Human Rights to the Netherlands. Next to the United Nations, the Council of Europe plays a key role in developing instruments on and stimulating democratic citizenship and human rights education. Before the 2008 visit, the NPHRE sent an email with its concerns to the Commissioner’s office, followed by a formal letter and a number of exchanges with a Dutch office member. During the commissioner’s visit to the Netherlands (an instrument increasingly used by special rapporteurs and other monitoring bodies) the NPHRE was invited to a civil society meeting. Subsequently, the commissioner recommended that the Netherlands would conduct a baseline study to assess the extent to which human rights are integrated in education and training (Commissioner for Human Rights 2008). To this, the cabinet responded that it would take this recommendation into account in a dialogue with civil society – something fully different, obviously, from conducting a baseline study.22 Along the same lines, the civil society efforts to use the governmental UN commitment to draw up a national plan of action on human rights education to change policies in the domestic context were largely ineffective. After having worked on the plan for a year, the civil servants 22

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The Ministers of Foreign Affairs, Justice and the Interior, 2009, 31700 V, 95, 27 April 2008, response to the report by the Human Rights Commissioner of the Council of Europe, 31700 85.

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at the Ministry announced that the plan that they had been working on, and which had been announced in April 2007, was actually a wholly different plan. At the same time, the civil servant responsible for the project changed posts. A few months later, the Minister of Education wrote to the NPHRE stating that there was actually no need for such a plan in the Netherlands, because (1) the educational objectives in the Netherlands were actually in line with the principles of the action plan, (2) there was freedom of education and (3) the government chose to prioritize language teaching and mathematics.23 The NPHRE, in response, concentrated its efforts on validating these assertions. An overview of educational objectives and exam programmes and core curricula in fields other than languages and mathematics – like geography, history and civic studies – showed that human rights hardly ever figured. Similarly, research into the textbooks used most often showed how these generally offer ample occasions to discuss human rights, but do not make use of the opportunity (Hermans et al. 2008: 29). The lawyers in the Platform wrote an article in the main Dutch legal periodical setting out the legal obligations to implement human rights education, and their relationship with the freedom of education as enshrined in the Dutch Constitution (Oomen, Van den Brandt and Bartels 2008: 2697–9). Nevertheless, during a meeting in April 2009, the Minister of Education was hardly impressed. His warning not to ‘start waving treaties at me’ echoes a viewpoint encountered more often amongst politicians, civil servants and parliamentarians in the Netherlands, who feel that reference to human rights obligations in the Netherlands is irrelevant and embarrassing. ‘I can get so irritated at NGOs pulling out all these international treaties’, as an ex-parliamentarian said on another occasion, ‘as if we can’t decide on our own policy objectives in the Netherlands’.24 The main reason for this irritation was voiced by the minister himself, and echoed in many other discussions on the importance of human rights education: ‘You can’t really say that the Netherlands has a terrible human rights record, can you now?’ The perils of this type of irritation, combined with the lack of sanctions and political interest in the reports by UN and Council of Europe human rights bodies make it surprising that many NGOs put so much effort into mobilizing these international critiques. In order to be 23 24

Letter to the NPHRE, 15 October 2008, 623832. Personal communication, 20 April 2009.

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at all effective, these critiques will have to be combined with the mobilization of political support for the cause concerned. Generating political support, and its perils Whilst abroad at a conference, after a hectic celebration of the 60th anniversary of the UDHR and weeks of active lobbying, I switch on the computer to watch the parliamentary discussions on the educational budget. What an exhilarating feeling to watch a parliamentarian repeat our concerns word for word, and to propose the motion that we helped to write up.

Long before the meeting with the minister quoted above, the dismissive letter of October 2008 led to a civil society resolve to bypass the civil servants essentially acting as gate-keepers on this topic and to generate as much press and political attention as possible. The celebration of the 60th anniversary of the UDHR, we decided, could potentially open up a window of opportunity to engage parliament, politicians and the press. Engaging the Minister of Foreign Affairs on this topic proved to be relatively easy: the aftermath of a meeting with the Advisory Commission on International Affairs, the celebration of the Four Freedom Awards, a dinner organized by the Queen to celebrate international law and a dinner celebrating the handing out of the first Dutch human rights tulip all provided opportunities to contrast the Dutch support for human rights internationally with educational policies. At some point, the civil servants at the Ministry of Foreign Affairs excitedly reported that this minister had sent out an informal, hand-written note to his colleague in education. Such peer pressure, as soon became apparent, could also have adverse effects, generating irritation against colleagues working outside their departmental mandate. In addition, many individual parliamentarians proved willing to discuss educational policies over a cup of coffee (with the progressive parliamentarians) or a good lunch (with their more conservative counterparts). Although they would invariably stress the importance of the topic, the challenge was to look for the right political moment. Such a moment occurred when the budget of the Ministry of Education was discussed on 10 December 2008, international human rights day. After a few parliamentarians had raised concerns about human rights education in the run-up to this day, the Minister of Foreign Affairs and the Minister of Education sent a – tersely negotiated and inherently contradictory – letter to parliament in which they stated they were ‘prepared to

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enter a dialogue on how to stimulate human rights without this leading to new regulation’.25 The weakness of this particular promise lead to a parliamentary motion, asking the government to ‘support schools and teachers in primary and secondary education in offering educational materials that teach about human rights in a professional, attractive and sustainable manner’.26 One of the main reasons why the topic could suddenly count on political and parliamentary interest was the involvement of the media. In a major article on 10 December, the main Dutch quality newspaper paid attention to the lack of human rights education. The article included statements like ‘We ask other countries to implement human rights education, but do not do this ourselves’ and ‘Of course it is up to schools to decide how they implement human rights education, but it is up to the government to state that this topic should receive attention’ (Steenhuis 2008: 134) . The motion, however, only led to a discussion with the minister in April, in which he basically reasserted the position that the government already did enough in this field. He did, however, put in place a taskforce chaired by the Department of International Affairs which, as some NGO representatives sighed, was a sure sign that nothing would happen. New elections led to a whole new group of parliamentarians, and the inauguration of a new Minister of Education who was even more negative about the need for human rights education. This minister, when asked to stimulate gay rights education in schools, said that if she did this ‘the next step would be obesity and human rights’.27 Vernacularization In researching the anthropology of human rights, Merry has emphasized the importance of the ‘vernacularization’ of these rights, the adoption of human rights language to national and local communities, which essentially involves processes of appropriation and translation, in which intermediaries translate ‘global ideas into local situations and retranslate local ideas into global frameworks’ (Merry 2006a). After 2009, one of the main strategies of the NPHRE was to try to include human rights within the citizenship curriculum. The legislation 25

26 27

Letter to the House of Representatives by the Ministers of Foreign Affairs and Education concerning human rights education, 31 700 V 72, 8 December 2008. Motion Pechtold, 111, 31 700. Homo-voorlichting niet verplicht (Education on gay rights not mandatory), NOS headlines, 26 May 2011 (sexual orientation education was made mandatory in 2012, see Chapter 8).

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asking schools to stimulate active citizenship and social integration was, as has been discussed in the last chapter, passed in 2006 primarily as a response to – perceived – problems with the integration of Muslim and immigrant communities. As a result it emphasized social skills, and acceptance of the ‘basic values of Dutch society’ such as tolerance and non-discrimination. Infusing a wider spectrum of fundamental rights and the notion of global citizenship within the framework of civic education – the Platform members strategized – would introduce human rights education on the wings of the notion of civic education, which enjoyed widespread political support. In addition, the amply available international studies, effectiveness research, lesson plans and policy frameworks could help schools and policy-makers sensibly fill in a rather vague – and partially resented – assignment for schools.28 One strategy was to ensure that the Foundation for Curriculum Development, which is fully funded by the government, was commissioned to work on a curriculum combining human rights and civic education (SLO 2010). The Foundation had already worked on implementation of the civic education requirement in general for the Ministry of Education, and thus had good contacts within the ministry. Actual agreement on the contents of the curriculum proved, at times, to be difficult, with the Foundation fearing that the Ministry of Education would resent ‘too much human rights’ in the proposals. A related strategy was to write a booklet setting out to teachers and policy-makers how an emphasis on democratic citizenship and human rights was a useful putting-into-practice of the legal provision to stimulate active citizenship (Oomen and Vrolijk 2010). Additionally, once the minister asked the Education Council to offer advice on civic education, the Platform actively sought to draw attention to the role of human rights in this topic. Whilst a strategy of vernacularization is attractive it also has its downsides. For one, the link between human rights and the discursive frame under which they are inserted has to appeal, and be logical, to all actors involved. In the Netherlands, the association between citizenship and social responsibilities is so strong that emphasizing the role of rights is sometimes simply not convincing (Dekker, De Hart and De Beer 2004: 92). In addition, as Merry warned, the paradox of translating human rights into the vernacular is that they will inevitably lose part of their universality (Merry 2006a). A successful way 28

See www.hrea.org and www.coe.int/t/dg4/education/edc/.

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of convincing policy-makers of the importance of human rights, for instance, was by emphasizing the role of responsibilities and duties in international treaties.29 The Dutch Constitution does not have any provisions containing the type of responsibilization found in citizenship discourse. Whilst enhancing the chances that human rights receive a place in the educational curriculum, such a depiction of human rights discourse bypasses the classic notion of human rights as safeguards against all-poweful states, or the respect for human dignities and freedoms, which the authorities that have to implement human rights education might find less appealing. Creating a broad support base Paradoxically, one permanent frustration becomes the expression of interest of teachers, schoolchildren and others in human rights education: emails asking for information, a guest lecture, training. Some questions I can answer, others can be forwarded to colleagues, but many requests cannot be met next to my full-time job. In addition, the list of people to speak to at some point grows and grows, with no time to make the actual appointments.

The way for a specific (human rights) NGO to achieve success is, of course, to form or become part of a broader movement, in which a variety of interests come together in the struggle for – here – the implementation of human rights education. Whilst the incremental building of a support base is the only way to solicit policy changes, building coalitions takes an enormous amount of energy and dedication, next to (more limited) material resources. The many actors that play a role in influencing governmental policies on human rights education have been listed above. In addition, of course, teachers themselves have a crucial role. Many teachers in primary and secondary education will, outside the formal curriculum, invite NGOs like Movies that Matter or UNICEF, to organize a ‘respect day’, a Model United Nations or a debating tournament centred on human rights, or pay extra attention to children’s rights. In doing so, they can make use of the estimated 1,700 ‘lesson packages’ that an average Dutch school receives every year. Some schools join Unesco or other networks, or write up their own human rights curriculum; ‘We have a human rights week every year, at the end of which the whole school sings “We are the 29

For example, art. 29 UDHR, also art. 10 of the ECHR, that couples freedom of expression to responsibilities.

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World” together’, as one geography teacher describes it.30 Yet another sighs: ‘All these things are extras, and at some point I have to start preparing the pupils for exams.’31 Generating teacher support in a decentralized system like the Netherlands entails speaking to teacher-training colleges, associations of history, civil society, geography and language teachers and their associations, school leaders, and their organizations. In addition, there are a wide variety of textbook authors who can potentially make a difference. As the chairperson of one publisher union wrote: ‘What you need to do is to make digital supplements to all the main methods, at a logical point, and convince the publishers to include them. Often, you’ll see that these supplements are included in the next print, and even influence the formal learning objectives.’32 Human rights litigation ‘This is so tiring’, emails one of the Platform members. Can’t we just sue the government? Find a good school class, look for a receptive judge, and then finally have the obligations in this field set straight. . .’

Human rights are, of course, not only images of good governance and claims for civil society to make, but they are also legal obligations and enforceable as such by the judiciary (Merry et al. 2010). Faced with the lack of progress in convincing the government of its duty to incorporate human rights education within the formal educational curricula, many NGOs in the NPHRE started to argue in favour of starting a court case that would clarify the legal obligations at stake. The chances of such a case succeeding in a country with little tradition in the field of public interest litigation, they estimated, were enhanced by the success of the ‘SGP-case’, in which NGOs successfully called in CEDAW in order to force the government to take effective measures against a party that – for religious reasons – refused passive voting rights to women (Oomen 2011: 175–200). Other Platform members, however, had hesitations. For one, there were two important legal impediments. As will be discussed in later chapters, it is very difficult for NGOs to obtain ius standi in the Netherlands, where the amicus curiae figure does not exist and 30

31 32

Personal communication by high school teacher, meeting on human rights education with teachers, The Hague, 15 September 2010. Personal communication by primary school teacher, ibid. E-mail correspondence, April 2008.

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organizations have to prove that they have a direct interest in the case, and are directly affected by the rights violation concerned. Another obstacle discussed more extensively elsewhere is the fact that the government does not recognize the direct effect of the relevant provisions in, for instance, the CRC and the ICESCR. On the other hand, it was said that the development of a regulatory framework on civic education without any reference to human rights whatsoever could actually be considered the type of regression forbidden by art. 2(1) ICESCR. Also, the right to human rights education has been labelled part of the core content of art. 13(1) ICESCR. A deeper-rooted fear than that of the chances of a legal stalemate, in starting a court case, concerned the adversarialism that would undoubtedly come with such a case. Such an adversarial approach, it was argued, could well backfire and distance the government, teachers and the public at large from the cause concerned, reinforcing the image of rights as highly individualized claims. Here, Rosenberg’s understanding of public interest litigation as a ‘hollow hope’ unless it is backed up by political and administrative support also played a role (Rosenberg 2008). Adding to this was the appreciation of the Dutch culture which values consensual decision-making more than some other countries. Starting a court case, in short, remained a possibility discussed rather than an action taken by the Platform for a variety of reasons, strategic, legal and cultural. CONCLUSION The

main aim of this chapter has been to set out the wide variety of actors who, next to the usual suspects and legal textbook subjects of individuals as rights-holders, states as duty-bearers and civil society as the motor behind rights realization, are involved in one particular instance of human rights implementation. Ministries each have interests that can differ strongly, as can the position of departments and individuals within them. In addition, there is a wide variety of advisory boards, public-private enterprises, teachers’ organizations and companies in the field of education that play a key, but often unrecognized role, in instances like these. An actor, like an NGO, seeking to mobilize human rights thus needs to work with all these different actors, and not just liaise with one governmental department. There are a number of different strategies by 103

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which to achieve this, and which might well overlap: ‘waving treaties’, generating political support, vernacularization, creating a broad support base and human rights litigation. Each of these strategies has its own perils. ‘Waving treaties’, and referral to international obligations, might be easiest and most obvious from a legal point of view, but in the case discussed in this chapter turned out to be ineffective at best and counterproductive at worst. Litigation, as another strategy to mobilize human rights directly, was also deemed to have drawbacks in this particular case, like emphasizing a ‘claim culture’ and ‘adversarialism’. In all, nudging the government into compliance with a broad coalition and through vernacularization of the rights involved (reframing human rights education as an element of civic education, and emphasizing elements such as responsibilities) seemed to offer the highest chances of success. In all, the past three chapters have demonstrated how, in order to understand why human rights (do not) get mobilized in addressing social issues in a country like the Netherlands, it is important to consider the legal framework (Chapter 2), legal culture and legal consciousness (Chapter 3) and the interplay between different actors that make up the institutional playing field. With this in mind, we now turn to a number of case studies of both rights ignored and rights realized. The next Chapters will, for instance, look into two different cases in which the international human rights framework was largely ignored in dealing with two important social questions in the Netherlands: the increase of polarization and xenophobia in society and dealing with domestic violence.

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C H A P T E R 5

A VERY UN-DUTCH CASE?

During most of the court case against him, the Dutch politician Geert Wilders relied on his right to remain silent when accused of discrimination and incitement to hatred for, amongst other things, comparing the Qu’ran to Mein Kampf and speaking of a ‘tsunami of Islamization’.1 His only statement to the court centred on the phrase ‘All over Europe the lights are going out’. Here, the blonde leader of the Freedom Party stated: ‘This trial is not about me. It is about something much bigger. Freedom of speech is not the property of those who happen to belong to the elites of a country. It is an inalienable right, the birthright of our people. For centuries battles have been fought for it, and now it is being sacrificed to please a totalitarian ideology.’2 A few months later, when he was acquitted on all charges by the Amsterdam district court after the protracted court case, the politician reiterated this standpoint: ‘This is not my victory, but that of the freedom of expression.’3 Dutch commentators – jurists, politicians and the press alike – have frequently described the Wilders case as ‘very un-Dutch’. For one, they argued, the debate on the limits to the freedom of expression should never have reached the courtroom, but have been fought out in parliament instead. Additionally, there was an enormous amount of national and international media attention in the case, which – a novelty – could 1 2

3

Indictment against G. Wilders, Public Prosecutor Amsterdam, 13/425046-09. ‘Geert Wilders aan het einde van de regiezitting’ (G. Wilders at the end of the initial hearing), Speech 7 February 2010, www.pvv.nl, visited 27 October 2011. Trouw, 23 June 2011.

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be followed live and commented on via the internet. Possibly as a result of this, the case turned into a virtual show trial, with various attempts to declare the court to be biased. This resulted in more attention being paid, for instance, to the role of individual judges than to the merits of the case itself, a rupture with the tradition of considering judges as anonymous civil servants, with their credibility beyond reproach. As one of the ‘judges on trial’ sighed in bewilderment afterwards; ‘It seemed as though the judiciary, instead of the accused’ was on trial (Schalken 2011). However, for all the uniqueness of the case and its emphasis on fundamental rights in general, it can also serve as an example of how international human rights and their institutionalization are irrelevant to some of the most pressing social problems in the Netherlands: polarization, xenophobia and Islamophobia in particular.4 The limits set to the freedom of speech is one of the topics on which international human rights law differs significantly from Dutch constitutional and criminal law: whereas the first body of law also underlines responsibilities, the constitutionally guaranteed freedom of expression is virtually unlimited in the Netherlands, as in the United States. The Wilders case also allows for a further scrutiny of some of the procedural obstacles to rights realization via public interest litigation: prosecutorial discretion and the limits to the ius standi of plaintiffs. Furthermore, the framing of the Wilders case in the Netherlands can illustrate some of the themes discussed in previous chapters: the lack of knowledge of the international human rights framework, the fear of juridification of politics, and the place of the freedom of expression in Dutch legal consciousness. This chapter, then, will investigate the (limited) role of international human rights in framing discussions on polarization in the Netherlands and attributing responsibility, along the following lines: it will first describe the increase in Islamophobia after the turn of the millennium, the role of individual politicians in the debate and the way in which the freedom of speech arose from these developments as the main marker of how Dutch identity was to be protected. Subsequently, it will describe the main accents in the relationship between the freedom of expression, freedom of religion and right to equal treatment as expressed in domestic, European and international human rights law respectively. Finally, it will describe how this played out in the Wilders case and the way in 4

See Chapter 3, and the fact that the concern named most often in Dutch survey research was ‘The way of living together, norms and values’ came out first (16%), closely followed by ‘freedoms’ (15%), much higher than the health care, the social system and the economy.

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which it was discussed in the Netherlands. Whereas the Dutch press and the politician himself held the case to be over with his acquittal by the Amsterdam District Court in June 2011, the conclusion will briefly discuss the plaintiffs’ announcement of their intention to put the issue to the European Court of Human Rights and the Human Rights Committee.

ISLAMOPHOBIA

The utterances for which the politician Wilders was accused of group defamation included statements like ‘I have had enough of the Qu’ran in the Netherlands: ban that fascist book’; ‘We have an enormous problem with Muslims, it is a disaster and we come up with policies that are worse than useless’; ‘the tsunami of an alien culture that becomes more and more dominant should be stopped’ or ‘What we want is to close the border, to not let to more Muslims into the Netherlands and send many of them out, and denaturalize Muslim criminals’.5 In order to understand why the Wilders defamation case came to be the ‘court case of the century’, it is important to describe how freedom of expression, considered the ‘freedom to insult’ here, became a key issue in Dutch political life after the turn of the millennium. Chapter 3 has already set out how one essay, titled ‘The Multicultural Drama’ set the stage for the U-turn from multiculturalism to assimilationist policies in 2000 (Scheffer 2000). The 9/11 World Trade Center attacks added a fear of Islamic fundamentalism to a public discourse that was already openly wondering whether Dutch tolerance had not gone too far, and helped accelerate the move from internationalism to Dutchness, and from tolerance towards exclusion (Buruma 2007). One of the first politicians to explicitly act upon the assimilationist agenda was Pim Fortuyn. As a flamboyant, outspoken and openly gay academic, Fortuyn had published a book titled Against the Islamization of Our Culture in 1997 (Fortuyn 1997). In 2001 he entered politics, where his opinion that Islam was a ‘backward culture’ and the idea that the Netherlands was full caused him to be expelled from the political party of which he was originally a member and to found his own party. In accusing the political elite of closing its eyes to Islamization, and – with 5

Taken from the Indictment in the Wilders case, number 13/425046-09, Public Prosecutor Amsterdam.

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great electoral success – saying things previously deemed unsayable, Fortuyn paved the way for politicians like Wilders. It is difficult to describe the collective shock that went through the Netherlands when, nine days before the parliamentary elections in 2002, he was shot in plain daylight by radical environmentalist Volkert van der Graaf – the first political murder in the Netherlands in centuries. Whereas many commentators, in the weeks after the murder, sighed how it was fortunate that the perpetrator did not belong to an ethnic minority,6 this was not the case with the second political murder that shocked the Netherlands. In November 2004, filmmaker Theo van Gogh was stabbed to death in plain daylight in the centre of Amsterdam. Van Gogh had directed the film Submission, on the exploitation of Muslim women, together with politician Ayaan Hirsi Ali. Considered ‘a master at insulting people’, he was known for provocative statements like comparing Muslims to ‘goat fuckers’.7 ‘Human rights’, he once said, when explaining what drove him, ‘have not been invented to chitchat about in the Queen’s Christmas speech, or whilst laying a wreath on the Dam square with Maxima’s father watching.’8 The letter that the murderer Mohammed Bouyeri transfixed on Van Gogh’s body was primarily directed towards Somali politician Ayaan Hirsi Ali, directly threatening to silence her ‘once and for all’. Hirsi Ali, after the death of Pim Fortuyn, had become one of the most outspoken critics of Islamic fundamentalism in the Dutch parliament (Hirsi Ali 2010). In an interview in 2003, for instance, she emphasized how the freedom of expression meant that ‘I am allowed to consider Mohammed backward as an individual. Mohammed says that women should stay inside, wear a veil, not do certain work, not inherit like her husband and be stoned if she commits adultery.’9 In later years Hirsi Ali herself would become victim of the turn towards assimilationism in the Netherlands, when the Minister of Integration threatened to repeal her passport following a television programme in which Ali admitted to not having been completely honest in her asylum procedure, leading the cabinet to

6

7 8 9

‘Gelukkig was de dader geen allochtoon: Zes Rotterdammers blikken terug op de dag dat Pim Fortuyn. vermoord werd’ (Fortunately, the perpetrator was not an allochtone; six Rotterdam citizens look back at the day on which Pim Fortuyn was murdered), Rotterdams Dagblad, 6 May 2003). The specific connotation of the word allochtone in Dutch is described in Chapter 3. Website ‘De gezonde roker’ (The healthy smoker), www.degezonderoker.nl. ‘Een meester in het beledigen’ (A master at insulting), Leeuwarder Courant, 3 November 2004. ‘De 10 geboden’ (The 10 commandments), Trouw, 25 January 2003.

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fall and causing Hirsi Ali to leave for the US – paving the way for the electoral success of one of her political companions, Geert Wilders (Fennema 2010). Geert Wilders, who had been in parliament since 1997, started his true political ascent when he left the Liberal Party (VVD) in 2004, to form his own party (the Freedom Party) with a political agenda centred on anti-immigration and anti-Islam politics, anti-elitism and freedom of expression. He would win nearly 6% of the votes in 2006 and 15% of the votes in 2010 and 2012 with a programme that proposed closing Islamic schools, banning the Qu’ran and introducing an immigration bar against Muslims. Under permanent protection since he was threatened with decapitation in an Islamic video in October 2004, Wilders continued to provoke Muslims and other Dutch citizens with statements concerning the ‘backwardness’ of Islam and by, for instance, placing the Danish cartoons on his website. In 2007, for instance, he announced that he intended to make a film denouncing Islamic fundamentalism; Fitna, as will be discussed later, led to strong international upheaval when it finally came out in March 2008. Fitna caused dozens of individuals and groups to ask the Dutch prosecutor to prosecute Wilders for discrimination, adding to over 45 such requests made after earlier statements.10 The prosecutor, as will be set out later, initially dismissed the cases, but was forced by the Appeals Court to press charges via a so-called ‘art. 12 procedure’ at a later stage. As the central concern of many of the plaintiffs was that many of Wilders’ statements had resulted in an increasingly negative attitude towards Muslims in the Netherlands, it is interesting to examine whether polarization and Islamophobia had indeed actually increased in the Netherlands after his ascent to political power. A general research on extremism in 2006 showed that, in the period 2004–06, Dutch Turks and Moroccans, as two of the main Muslim groups in the Netherlands, started to feel less respected. The question ‘The Dutch have respect for Islamic culture’, for instance, was answered affirmatively by 56% of the Turks in 2004, and 46% in 2006; with the Moroccans the figures were 49% versus 39%. Similarly, 70% of Dutch Turks and Moroccans and 89% of ‘native’ Dutch felt that tensions between groups in the Netherlands were getting worse in 2006 (Gijsberts and Vervoort 2007: 282–310). Other research showed how the Dutch shift 10

‘Getreuzel justitie leidt tot onbegrip’ (Slow-paced prosecutor difficult to understand), De Volkskrant, 6 March 2008.

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towards assimilationism had negatively impacted on Dutch participants’ feelings toward Muslims, but not towards other minority groups (Coenders et al. 2008: 269–85). Research amongst schoolchildren in 2007 found that six out of ten non-Muslim pupils in secondary education had a negative, or very negative image of the Islam, with half of them feeling unsafe when encountering groups of Turks and Moroccans in the streets, and considered Islam as a threat to Dutch culture (Dekker and Van der Noll 2007). In addition to negative feelings, scholars writing on Islamophobia also pointed to the rise of violence against Muslims. One upsurge in violence against Muslims took place after the attacks on the World Trade Center, when mosques were attacked, plastered with insults and even set on fire. A similar spate of violence took place after the murder of Theo van Gogh. Generally, the percentage of anti-Muslim violence as part of general extremist violence in the Netherlands increased over the years, with examples such as swastikas being plastered on an Islamic butcher’s shop, racist slogans painted on a Mosque, an attempt to set fire to an Islamic primary school and a fire in a Mosque caused by a Molotov cocktail thrown by extremist youngsters (Bovenkerk 2006). A law student who spoke as a plaintiff in the Wilders case connected this increase in Islamophobia to Wilders’ utterances: ‘Islam takes a prominent place in my life . . . I am not a fascist. I am not a Nazi. I am not a terrorist. I am not a criminal. I am not violent. Yet fellow Dutchmen hold me accountable for the things that Mr Wilders associates with Islam and Muslims.’11 She reported on a number of changes: being asked during a job application whether she minded shaking hands, or noticing that law students with headscarves, who asked for directions in a university, would automatically be shown the way towards the cleaning closet. Additionally, she pointed out how her nephew could not get an internship, how women leaving the mosque were pelted with beer cans, and how more and more Muslims were leaving the country. The relationship between these events and Wilders’ discourse would be at stake in the court case that would be heard in 2010 and 2011. Before we turn to the actual case, it is important to dedicate a few words not to only the political, but also to the legal background to the case.

11

Statement on file with the author.

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THE LEGAL BACKGROUND

Legally, the Wilders case concerned a clash between three fundamental rights: freedom of expression, freedom of religion and the right to non-discrimination. In a typical example of constitutional pluralism, these rights are protected in a variety of documents, which formally all form part of the Dutch law: the Dutch Constitution and the Criminal Code, the European Convention on Human Rights and EU Law, and international human rights treaties like the Convention on the Elimination of All Forms of Discrimination. At the same time, each of these legal instruments places different accents on, for instance, limits to the freedom of expression. As a generalization, the Dutch Constitution provides for a virtually unlimited freedom of expression, the case law of the European Court of Human Rights emphasizes the freedom ‘to shock, offend and disturb’ but also the responsibilities that come with this freedom, and an international human rights instrument like the International Convention on the Elimination of All Forms of Discrimination primarily seeks to protect individuals and groups from discrimination (Nieuwenhuis 2006). The crimes of group defamation and inciting hatred in the Dutch Criminal Code and the case law on them, can primarily be seen as a meeting point for all these provisions. Let’s take a closer look at the legal order and the case law that would form the framework against which the judges in Amsterdam had to decide the Wilders case. Article 7 of the Dutch Constitution states that ‘No-one shall require prior permission to publish thoughts or feelings in the printed press, subject to the responsibility of every person under the law’ and ‘No-one shall require leave prior to publication of thoughts or feelings by means other than those provided for in the foregoing paragraphs on the grounds of their content, subject to the responsibility of every person under the law’. On the one hand the law, in this case the Criminal Code, has set limits to this freedom ever since 1934 when it criminalized the incitement of hatred in the context of discrimination against Jews and communists.12 On the other hand, the freedom has been interpreted very widely in jurisprudence over the years. In the ECHR the freedom of expression is laid down in art. 10. The limitation clause is more substantive than in the Dutch Constitution, providing that restrictions need to be regulated ‘by law’, be ‘necessary in 12

House of Representatives (1933–1934, p 1855 L).

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a democratic society’ and serve a specified purpose like the protection of the reputation or the rights of others. In its case law pertaining to the freedom of expression for politicians, the Strasbourg Court has, in interpreting the ECHR, developed two lines. On the one hand, classic cases like Handyside established the margin of appreciation of member states in assessing whether a restriction on the freedom of speech is necessary, and how this freedom – as one of the key pillars in a democracy – entails a right to ‘shock, offend and disturb’ certain organizations or individuals.13 In Norwood v United Kingdom, however, concerning a poster stating ‘Islam out of Britain – Protect the British People,’ the Court held that the case was inadmissible because someone who adopts totalitarian views is not protected by art. 10.14 The case closest, in terms of the facts, to the Wilders case, was that of Féret v Belgium. Here, the court in Strasbourg held that the Belgian conviction of politician Féret for inciting hatred because of, amongst others, his pamphlets stating ‘Stop the Islamization of Belgium’ was a permissible limitation of his freedom of expression. The fact that Féret was a parliamentarian did not diminish his responsibility. Rather the opposite: politicians should avoid giving rise to intolerance and defend democracy and its principles.15 There is also EU law that is relevant here, more particularly concerning the procedural question as to whether Wilders should be prosecuted. The prosecutor in the Netherlands, as discussed before, has the power to decide not to prosecute cases and would – initially – make use of this power in the Wilders case. Here, before the trial, Klip argued that international law obliged the Netherlands to actually undertake action faced with utterances like those of Wilders (Klip 2009). The EU Joint Action to Combat Discrimination and Xenophobia and the Framework Decision on Combating Racism and Xenophobia, he argued, determined that racist behaviour must constitute an offence.16 Member states cannot just ‘sit still’ when faced with racism and xenophobia (Rosier 1997). The International Convention on the Elimination of All Forms of Discrimination, finally, strongly emphasizes state responsibilities to 13 14 15 16

Case 5493/72, Handyside v United Kingdom [1967] ECHR para 48. On the basis of art. 17 of ECHR, case 23131/03, Norwood v United Kingdom [2004] ECHR. Case 15615/07, Féret v Belgique [2009] ECHR. Joint action/96/443/JHA of 15 July 1996, and Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

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combat racial discrimination between citizens. In it, State Parties, amongst others, agree to adopt immediate and positive actions to eradicate incitement to all forms of discrimination based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form (art. 4). Even if the article stipulated that these measures had to be with due regard to the UDHR (and thus the freedom of expression), it therefore puts a far-reaching obligation on State Parties. Initially, the government was reluctant to take legal measures, because it felt that the Dutch legal dispensation was already in accordance with the Convention, and it felt that signing the Convention was in the general global, instead of the Dutch interest. The only reason to sign was ‘to not cast any doubt on its intention to combat an evil that has infected relations between people in many parts of the world’.17 At a later stage, in a typical example of the Dutch ‘going the extra mile to further the development of international law’, the government even put forward legislative proposals that went further than what the Convention asked for, by including religion as a ground for discrimination and the ‘insult of groups’ as a crime in itself. The amendments bringing the Criminal Code into line with international human rights law were largely included at the instigation of Parliament (Klip 2009: 185).18 These amendments were threefold: a provision on group defamation (art. 137c); on the incitement of hatred and discrimination (art. 137d); and on the publication, sending and dissemination of remarks that are offensive and incite hatred (137e). Art. 137c (1) states that: ‘The person who in public, orally or by means of images, is deliberately offensive about a group of persons on account of their racial origin, religion or ideological beliefs, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be liable to imprisonment for up to one year or a third category fine.’ Article 137d criminalizes ‘incitement of hatred or of discrimination against people, or the property of people’ on the same grounds, adding gender to the list of grounds for discrimination. Ever since its inception, the provisions have been interpreted rather narrowly, because of the evident tension with the freedom of expression. This was in line with the legislative history, in which an 17 18

House of Representatives, 1967–1968, number 9723, explanatory memorandum 3. Roethof Amendment, House of Representatives 1969–1970, 9724, no. 9.

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explanatory memorandum to the law stated that ‘The mere harming of self-confidence of the group or bringing the group into discredit because it is of a certain racial origin, practises a certain religion or has certain ideological beliefs is punishable by law. Criticism of views or conduct, in whatever form, falls outside the scope of the drafted penal provision.’19 Apart from only considering groups of people as the objects of the article, the jurisprudence on group defamation also emphasizes context as a criterion in determining whether a remark is indeed offensive (Rosier 1997). Remarks, as the Supreme Court held in the Van Dijke case, can be injurious or defamatory in themselves, but – because of the context – can still fall outside the scope of art. 137c.20 The freedom of religion and the freedom of speech can be part of that context. The remarks of a Reverend who had branded homosexuality a ‘filthy and an obscene sin’, were considered defamatory in themselves, but not in the context of the relationship with the religious beliefs of the accused.21 Concerning the criterion thrown up by the stipulation that the defamation had to concern a group of people, the Supreme Court issued an important ruling in 2009. In what was widely read and presented by the court itself as a pointer for decision-making in the Wilders case, the court had to decide whether putting up a poster with the text ‘Stop the cancer called Islam’ was a crime. Whereas the lower courts had deemed the poster to be unnecessarily offensive, the Supreme Court held that a hurtful statement about a religion does not necessarily imply that this is also insulting to the group of people which practises that religion. Some authors considered this to be a departure from earlier case law and a more restrictive interpretation of the law, pointing out that an emphasis on context – the earlier approach – would have led the court to factor in the racist and Islamophobic atmosphere in the Netherlands at the time, just after the Van Gogh murder. Describing how, close to the place where the poster was put up, an Islamic primary school had been set alight to burn down completely, Veraart concludes that it would have been more logical to have taken that context into account (Veraart 2010).

19

20 21

House of Representatives, 1969/1970, 9724, no. 6, p. 4, as quoted in Lisanne Groen and Martijn Stronks, Entangled Rights of Freedom: Freedom of Speech, Freedom of Religion and the NonDiscrimination Principle in the Dutch Wilders Case (The Hague: Forum, 2010). Supreme Court 9 January 2001, NJ 2001, 203. Supreme Court 14 January 2003, NJ 2003, 261.

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THE INTERNATIONAL HUMAN RIGHTS PERSPECTIVE

THE INTERNATIONAL HUMAN RIGHTS PERSPECTIVE

The legal emphasis in the Wilders case was thus placed on the question as to whether the politician, with his statements, had committed a criminal offence. The perspective of the plaintiffs, who felt discriminated and restricted in their right to freely practise their religion, and sought protection of these rights by the Dutch State, was much less prominent. Yet it was this latter perspective that was taken up by the many individuals and institutions outside of the Netherlands looking at the country from an international public law perspective. The strongest upsurge in the international outcry pertaining to Wilders’ messages took place surrounding Fitna (Hartoyo 2009). The 16-minute film would show the Danish cartoons on the prophet Muhammed, bloody examples of Islamic extremism like the attacks on the World Trade Center and in London and end with the image of the Qu’ran and the sound of a page being torn in the background. In the period preceding the release of the film Dutch politicians and diplomats had a hard time at explaining, all over the world, how Dutch law did not allow for censorship, but how the government did distance itself from Wilders’ views. This did not stop countries like Pakistan and Indonesia barring the film from Youtube, people protesting in Saudi Arabia and Iran, and the government of Yemen asking the Netherlands to ban the film. Additionally, Wilders was charged with blasphemy in Jordan, with the prosecutor asking the Netherlands to extradite him. At the level of the international community, however amorphous an entity, the responses were equally strong. In a joint statement, the UN Special Rapporteurs on the Freedom of Expression, Racism and the Freedom of Religion condemned the distorted vision and the irresponsibility of the film, and called for tolerance and a vigilant response.22 UN Secretary General Ban Ki Moon, in a strongly worded statement said that there was no justification for hate speech and the incitement to violence, and that the freedom of speech was not at stake here.23 The High Commissioner for Human Rights also denounced the video, but called for calm, adding hopefully that ‘There is a protective legal framework,

22

23

UN Press Release, ‘Human rights experts condemn distorted vision of Muslims in the film Fitna and call for dialogue and vigilance’, Geneva, 28 March 2008. UN Press Release, ‘Condemning “offensively anti-Islamic” video, Ban Ki-moon appeals for calm’, New York, 28 March 2008.

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and the resolution of the controversy that this film will generate should take place within it.’24 Apart from the explicit denouncement of the film Fitna, international human rights-monitoring bodies also displayed a more general concern about polarization and Islamophobia in the years after its release. One example is the 2008 Universal Periodic Review of the Netherlands by the Human Rights Council. Individual countries, like Iran, Saudi Arabia, Pakistan, Malaysia and Algeria, called for a strengthening of rules and regulations pertaining to defamation of religions and Islamophobia. The Netherlands responded by stating that the Dutch constitution and other legislation already provided an adequate legal framework.25 The Committee on the Elimination of Racial Discrimination also gave important indications of what the Dutch obligations under the Convention were. In the 1980s and 1990s, it had already pointed out, with reference to the Netherlands, that the mere enactment of a law making racial discrimination a criminal act in itself does not represent full compliance with these obligations.26 The expediency principle in prosecuting criminal offences should always be interpreted in line with the guarantees laid down in the Convention, like investigating threats of racial violence with due diligence and expedition.27 In a decision taken a few years before the Wilders case, the Committee underlined that criminal laws prohibiting racial discrimination also had to be effectively implemented by competent national tribunals and other state institutions.28 In line with these specific decisions, the CERD, in its 2010 review of the Netherlands, expressed concern at the incidence of racist and xenophobic speech emanating from a few extremist political parties. The Committee urged ‘the State party to take more effective measures to prevent and suppress manifestations of racism, xenophobia and intolerance and to encourage a positive climate of political dialogue’.29 Even more explicit critiques came from the Council of Europe’s ECRI, the European Commission against Racism and Intolerance. At a time when it was chaired by a former Dutch Minister of Justice, it lamented a ‘dramatic deterioration’ in the tone of the Dutch political 24 26 27 28 29

Ibid. 25 A/HRC/8/31/Add.1. L.K. v The Netherlands (4/1991), CERD, A/48/18, 16 March 1993. Case 1/1984, Yilmaz-Dogan v The Netherlands [1987] CERD. Case 34/2004, Gelle v Denmark [2006] CERD. CERD, 12 March 2010, CERD/C/NLD/CO/17–18.

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and public debate on integration, and a ‘worrying polarisation’ between majority and minority communities. Amongst a number of recommendations on Islamophobia, the Committee urged ‘the Dutch authorities to respond firmly to all instances of racially motivated crime, including violence, targeting Muslims’ and ‘the need to improve the response of the criminal justice system to racially-motivated offences’.30 In all, a variety of international human rights bodies had, in the runup to the Wilders case, pointed at specific state obligations pertaining to the type of utterances concerned: the obligation to prosecute expediently, and to take effective measures. How did this perspective make its way into the case itself? THE CASE OF THE CENTURY

In considering how the ‘case of the century’ played out in court and what this shows about the place of international human rights in addressing social problems in the Netherlands, three elements seem to stand out. First, there was the lack of willingness to prosecute, and the virtually collective opinion that this case did not belong in court. Next, there was the way, in which, in the media spectacle that the case turned out to be, it was not the politician Wilders, but the judiciary itself, that seemed to have ended up in the dock. Finally, the relatively marginal role of the plaintiffs in the process is striking. In all, what was often described as an ‘un-Dutch’ case did display a great deal of national legal culture in its attempt to keep the issue out of court, the limited role of the plaintiffs and – as a consequence – the lack of reference to international human rights law. The unwillingness to prosecute A first remarkable aspect of the Wilders case was that, as far as the public, politicians and the larger part of the legal community were concerned, it should never have happened. Of course, there was a stream of complaints against the politician that started after a 2007 article in one of the main newspapers titled ‘Enough is enough: forbid the Qu’ran’, with dozens of people and organizations filing a complaint, and this received another boost with the release of Fitna.31 But the majority of Dutch politicians, opinion-makers, jurists, scholars and media felt that the case should never have reached the courts.

30

ECRI, 3rd report on the Netherlands, 29 June 2007, CRI.

31

De Volkskrant, 8 August 2007.

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The public prosecutor, for one, initially decided not to take the case to court. The central role of the expediency principle in Dutch criminal law has been described before: 10 to 15% of all the cases brought to the attention of the prosecutor are dismissed. The reasons for this can vary from there not being enough evidence, or the fact that prosecution is not in the public interest, for instance if prosecution could lead to public unrest. Here, after having solicited the opinion from three prominent legal scholars, the prosecution decided to dismiss the case because Wilders’ opinions did not amount to group discrimination or the incitement of hatred because they concerned the Muslim faith, and not Muslims themselves, and because they sought to contribute to the public discussion. In taking this decision the prosecutor ignored the opinion of the professor in human rights law who had given his advice – and, according to some sources, even that of the Minister of Justice – and followed the opinions of two specialists in criminal law instead.32 The decision was generally met with relief by most experts and people in the Netherlands. The plaintiffs, however, made use of their only recourse to have the case heard after all: art. 12 of the Criminal Code of Procedure, which allows for anyone with a direct interest to complain to the Court of Appeal against a decision. In a remarkably extensive ruling, the court held that Wilders’ outings would be crimes under Dutch law: because of their radical and generalizing formulations they incited hatred and were insulting.33 Prosecuting and possibly punishing Wilders, the Appeals Court held, would also be admissible under European human rights law. Additionally, it would be in the public interest to prosecute and thus draw a line in the public debate. The Appeals Court did, however, indicate that these were merely preliminary considerations, and that the court would have to hear the merits of the case. The Appeals Court order to prosecute led to a storm of public critiques, which qualified the decision as ‘unheard of’, ‘unnecessary’ and ‘unwise’.34 ‘Please’, as one op-ed stated, ‘fight Wilders outside of court’.35 32

33 34

35

‘Hirsch Ballin gepolst over proces; advies professor niet gevolgd’ (Hirsch Ballin approached about case; advice of professor not followed), De Telegraaf, 5 October 2010; The Wilders Trial, documentary by Human, broadcast 12 December 2011; personal communication. Amsterdam Appeals Court, 21 January 2009, LJN BH0496. ‘Ongehoord’ (Unheard of), Gooi- en Eemlander, 31 January 2009; ‘onnodig’ (unnecessary), NRC, 31 January 2009; ‘onverstandig’ (unwise) Volkskrant, 29 January 2009. B. Stapert and T. Zwart, ‘Bestrijd Wilders in debat, buiten de rechtszaal’ (Fight against Wilders in a debate, outside of court), Trouw, 2 February 2009.

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A common thread in the legal critiques was that the ruling delved deep into the subject-matter of the case instead of being a mere marginal check on the way in which the prosecutorial discretion was used, as is commonly the case in art. 12 procedures. Remarkably, in the actual court case, that ran from the beginning of 2010 to early 2011, the prosecution reiterated its earlier position that Wilders should be acquitted on all charges. Two prosecutors from the special anti-discrimination unit, who had worked on the case for two years, argued that Wilders’ utterances might have been hurtful, but they did not constitute group discrimination or incitement to hatred. Here, the pointer given by the Dutch Supreme Court, that insulting a religion does not automatically also constitute insulting a group of people, was deemed crucial. The prosecutors referred to European case law, emphasizing that Strasbourg leaves it up to national authorities to determine the limits of freedom of expression. They also discussed the way in which the Dutch criminal provisions were inspired by the Convention on the Elimination of All Forms of Discrimination, but did not discuss the recommendations and decision of the CERD, or other international human rights documents.36 The plaintiffs still tried to have the prosecutors replaced, calling for a ‘loyal execution’ of the Appeal Court ruling, but they lost the case.37 As a result, in the Amsterdam district court, both the defence and the prosecutor argued for acquittal, using the same arguments, with the counter-arguments hardly receiving any attention. The call for acquittal was in line with general sentiments amongst lawyers, politicians and the public at large. Politicians, for instance from the Socialist Party, stated that ‘You shouldn’t leave the fight against Wilders’ ideas up to judges.’38 A number of prominent members of society started a movement Tegen de Verwildering which – loosely – translates as ‘Against the Wilderness’.39 An (admittedly) right-wing newspaper asked its readers whether they expected the politician to be acquitted, and 88% responded that they did.40 Whereas, in legal circles, a few voices (mostly from the field of international human rights law) 36 37 38

39

40

Prosecution indictment, 12 October 2010, 13/4425046-09, on file with the author. The Hague District Court, 26 November 2010, LJN B05107. ‘Overtuigen of de mond snoeren?’ (To convince or to silence?), NRC Handelsblad, 22 January 2009. ‘Bestrijd Wilders in en buiten het parlement’ (Combat Wilders in and outside of parliament), Trouw, 12 December 2007. ‘Zaak Wilders showproces’ (Wilders case showtrial), De Telegraaf, 21 June 2011.

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argued in favour of the prosecution, the majority of legal scholars did not consider the prosecution to be called for. The judiciary in the dock All this did not prevent the case from becoming an unprecedented media spectacle, though with little reference to the legal issue – the clash of fundamental rights – at stake. A telling cartoon published by the end of the court case showed an Amsterdam judge sitting in the dock begging for mercy, with Wilders high above the judges’ table.41 This well captured the degree to which – in total contravention of Dutch legal culture – the judges in the trial had not only become public figures, but had even surfaced as the virtual accused in the course of the proceedings. How could this have happened? Right from the initial judicial rectification of the decision not to prosecute, media attention had been directed towards one of the three judges on the bench, Tom Schalken. This was not surprising. Schalken was not only a judge but also a retired professor of criminal law. In the 1970s, he had played a central role in drafting the art. 12 on the basis of which he would, nearly 30 years later, order the prosecution of Wilders (Van Gends and Visser 2004). In addition, the highly extensive motivation of the ruling went much further than what is common in art. 12 cases, causing both printed papers and bloggers to comment on the ‘leftish profile’ of this outspoken judge who had also published scholarly work and strongly worded op-ed pieces. These personal attacks on the judges involved continued once the actual court case started, and had everything to do with the fact that this was the first time that a case was broadcast in its entirety via the internet and at times even via public television. The lawyer representing Wilders, Bram Moszkovicz, was a well-known media personality in the Netherlands, who had already done a number of high-profile cases but also figured in advertisements and talk shows. The judges clearly had to get used to the permanent presence of the media, and the attention that they received as individuals from the many fora on which the case was followed via the internet. The defence strategy of attacking the judiciary itself took the form of a number of formal accusations of the court being biased (wraking) with a request for a different court to be substituted. As a hitherto little-used 41

Gooi- en Eemlander, 11 February 2011, www.tomjanssen.net/pages/0000_februari_11/frameset_ februari_11.html.

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mechanism in Dutch law, it was invoked twice in the initial court session. The first time, on the first day of the trial, set the tone. When the outspoken politician Wilders, much to everyone’s surprise, had indicated that he would make use of his right to remain silent, presiding judge Moors tried to make him change his mind in an admittedly rather clumsy manner by stating: ‘Others often accuse you of being good at making statements but backing away from engaging in debate, and it rather seems as if you are doing that again today.’ Following an application by Wilders’ lawyer, a different bench investigated whether this remark displayed bias. Wilders, who suddenly had decided to speak, testified that ‘I had the feeling that I was in parliament, facing one of my colleagues from D66.’42 Even though the court did not allow the application for a new bench, the tone for the rest of the case was set. In referring to his case outside of court, for instance, Wilders compared the court and the procedure to ‘mafia practices’, common to a ‘banana republic’ or ‘North Korea’ or ‘Nigeria twice over’.43 He also, to the horror of many lawyers and fellow politicians, stated that he had ended up in a terrible legal circus and that, if he were to be convicted, ‘one and a half million voters will take up their axes and get it to the roots of the legal system’. Some observers noted how this fitted in with a more general strategy of systematically attacking bastions of authority and denouncing them as leftist and elitist: ‘scholars turn out to be masked environmental activists, journalists social-democrats with a writing pad, the royal house spokespeople for multiculturalism and education a system of indoctrination of cultural relativists. After this politicization comes step two – deactiving the institution.’44 Whereas earlier attempts to declare the court to be biased had failed, the defence succeeded on what was supposed to be the last day of the trial. Lawyer Moszkovicz started the day by waving a newspaper article that revealed that Appeal Court Judge Schalken had, during a dinner party half a year earlier, attempted to influence expert witness and Arabist Jansen. He demanded to be allowed to examine Professor Jansen, an advisor to Wilders who had attended most of the trial. When the judges stated that the decision on that matter would be postponed, Moszkovicz – again – applied for a declaration that the 42

43 44

Democrats. ’66, a moderate political party. Years earlier, research by Vrij Nederland showed how a disproportionate number of judges were members of this particular party. B. Heijne, ‘Een dreunende vraag’ (A hard question), NRC Handelsblad, 23 April 2011. R. Wijnberg, ‘Wilders: geen feit tussen te krijgen’ (Wilders: not a fact in the way), NRC Next, 9 March 2011.

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court was biased. This time around, however, a new bench that was hastily convened agreed with him, and declared that the whole case would have to be heard over again. The case that started half a year later would, in the eyes of the public at large, revolve around that ill-fated dinner party, where the judge, a famous journalist and a number of friends had invited Arabist Jansen to exchange views with them on the Islamic threat. Had the judge indeed taken a copy of the ruling with him? Had he tried, even if he had not succeeded, to influence the witness? How much wine did they drink? Much as members of the dinner party tried to emphasize that this was merely an intellectual exchange of ideas, with a judge whose formal role in the proceedings had ended two years earlier, the public retained the idea of elitist, biased and behind-closed-doors decision-making. The new bench allowed the defence to grill judge Schalken live on television for hours with the visibly nervous judge explaining how European law did allow for Wilders’ prosecution and how he had not drunk too much. In a book written after his resignation it was Schalken who would conclude bitterly that it was not Wilders, but the judiciary itself, that ended up on trial (Schalken 2011). Schalken’s book contains interesting observations on the lack of judicial authority in Dutch courtrooms in generally, invoking a lecture titled ‘The Fearful Judge’ given by the former chief prosecutor (De Wijkerslooth 2000: 448–52). In another article quoted extensively, a researcher laments the lack of courtroom presence by Dutch judges. Unlike courts in the United States, Schaberg argues, Dutch courts can hardly be recognized between ‘other nondescript office buildings. You will not see flags, pillars or other symbols of power and authority . . . there is no need to impress. That is not our culture. We don’t consider it to be reasonable.’45 Whereas the case opened up the discussion on media presence in the courtroom, Schalken concluded that this would also call for more courtroom presence, more explicit authority exercised by the judges, much against the Dutch culture of invisible, neutral judges. Be that as it may, the media and the public at large breathed a collective sigh of relief when the case was finally over on 23 June 2011. Wilders was acquitted on all charges of group discrimination and incitement to hatred. The statements might have been hurtful, and shocking, but they did not amount to crimes. One important 45

J. Schaberg, ‘Moszkovicz valt te pareren door rechter’ (Moszkovicz can be stopped by the judge), NRC Handelsblad, 18 April 2011.

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motivation was that the statements were made in a time of heated debate on immigration, and that European case law holds that opinions that shock, offend or disturb should be admissible, especially for politicians. Additionally, the court pointed at the context of Wilders’ outings, and his frequent statements that he had nothing against Muslims in general, but only against the Qu’ran. Following the indictment, the decision also referred extensively to the Supreme Court ruling on the poster ‘Stop the cancer called Islam’ which made a distinction between insulting a religion and a group. International human rights instruments, like CERD, were only referred to in their historical context, as the inspiration for the Dutch Criminal Code provisions. The lack of legal standing of the plaintiffs The ruling also meant that that the torts claim put forward by the plaintiffs was declared inadmissible. The plaintiffs consisted of both organizations and individuals. The organizations involved included The Netherlands shows Colour, the National Moroccan Council, The Antilles and Aruba Movements, the Association of Workers from Turkey, the Movement for the Restoration of Respect and the Association of Dutch Mosques. In addition, seven individuals had been admitted to the procedure. After having filed complaints, pushed for prosecution via the art. 12 procedure, and having lodged a symbolic claim of one euro each, they were left emptyhanded and hardly heard amongst the discussions on – at best – the criminal law issues involved and – at worst – the dinner party. With both the prosecution and the defence arguing for acquittal they technically should and could have been the party arguing for conviction and referring to international human rights law and its emphasis on (State and individual) responsibilities in doing so. Their limited standing in court, however, hardly allowed them to fulfil that role. The access of public interest groups to court is much more limited in the Netherlands than in other countries. This has to do with the legal stipulation that plaintiffs need to have a direct interest in a case, a provision that is interpreted rather narrowly in the Netherlands. In a case concerning privacy rights, for instance, the judges held that the organization Privacy First had no standing in court, but only individuals who had refused to give their fingerprints for a passport, and now suffered damages as a result.46 ‘A public interest organization can not challenge 46

The Hague District Court, 2 February 2011, LJN BP2860. This concerned a torts case, where the civil judges stated that this was an administrative matter.

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this decision under its own name, and will need to look for an individual with the resolve to pursue legal proceedings.’47 Similarly, in a case concerning a religious political party that barred women from the ballot list, not all NGOs that were involved had ius standi.48 Similarly, only the plaintiffs who were deemed to have directly suffered damages as a consequence of Wilders opinions were granted ius standi. Next, what these parties could actually say in court was defined narrowly as only being about the actual damage suffered, and not about the legal question underlying the case and the degree to which Wilders committed a crime and the State of the Netherlands, as party to CERD and other treaties, was under an obligation to prosecute and convict him. Plaintiffs, during both cases, did set out how deeply affected they felt by Wilders’ utterances. A former parliamentarian of Moroccan descent, for instance, emphasized how ‘Integrating into a new society is as difficult as transplanting a tree. Ninety per cent of us are successful at it. Before 11 September we were just Turks, Moroccans, Antilleans. After that, we were suddenly discovered as Muslims.’49 In tears he referred to children not being able to sleep at night, racist violence, mosques being burnt and discrimination in schools, by employers and in discotheques. He also emphasized Wilders’ discursive strategies: constantly linking violence to Islam and to Muslims and Moroccans, dividing the world into ‘us’ and ‘them’ and the dehumanization of Muslims, for instance by stating that they just ‘breed away’ and should be ‘chased back into their cage’. However, as soon as the plaintiffs wanted to challenge the prosecutor’s plea for acquittal and Dutch state obligations, they were silenced, leading to dialogues between a lawyer and a judge, such as ‘We are not happy with the prosecutorial policies, are we allowed to say that?’ ‘No, you’re not.’ One of the lawyers would later reflect how ‘The whole philosophy behind a criminal case is that the court gets to hear the story from two sides, that this sharpens the argument and leads to the best decision-making. Now, there was perfect harmony between the prosecution and the defence, and the plaintiffs were not allowed to say anything.’50 When one of the plaintiffs, for instance, said that ‘We were under the impression that European and international law obliges the 47 48 49 50

R. Schutgens, annotation to the case referred to in previous note. The Hague District Court, 7 September 2005, LJN: AU2088. Author’s notes, court case 18 October 2011. Lawyer T. Prakken in the human documentary The Wilders Trial, broadcast 12 December 2011, personal communication and e-mail correspondence.

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authorities to protect minorities and to act against Wilders’ behaviour’, the prosecution immediately demanded that he was silenced, and the judges indeed ensured that this happened. As a result, all the pleadings that the lawyers had prepared that referred to ECRI and CERD opinions were never heard in court.51 The plaintiffs felt, as one lawyer phrased it, like ‘uninvited guests at a closed party’.52 CONCLUSION

Upon Wilders’ acquittal, a sigh of relief seemed to go through the newspapers, politicians in The Hague and over the internet, at least in the Netherlands. ‘Wilders case finally over’, was one of the most frequent headlines. As was the case before, there was little attention given to the plaintiffs in the reporting. These plaintiffs announced that they would contest the state’s position, in this case in front of the ECtHR and the Human Rights Commission. Spong, the lawyer representing the As Sunnah mosque, filed an application in Strasbourg stating the decision not to prosecute Wilders and to later ask for his acquittal violated the peaceful enjoyment of religion, as protected by art. 9 ECHR.53 In doing so, he pointed to European case law that recognizes that there can be a pressing need to curtail the freedom of expression, and to the Norwood case, in which the court considered a poster with the words ‘Islam out of Britain – Protect the British People’ to be a general, vehement attack against a religious group, incompatible with the values proclaimed and guaranteed by the Convention, like tolerance, social peace and nondiscrimination.54 In turning to the Human Rights Committee, other plaintiffs argued that Wilders’ systematic attacks on migrants and Muslims violated their rights under arts 20, 26 and 27 of the ICCPR.55 Whilst anti-Muslim ‘smear campaigns’ were not only the work of Wilders, he ‘leads in the debate and is generally seen as the main instigator’. Legally, they argued, the court had gone wrong by looking at the expressions individually instead of at their cumulative effect, accentuating the artificial distinction between criticism of Islam and humiliating Muslims, excluding the 51 53 54

55

Pleas on file with the author. 52 Mr Pestman, 18 October 2010. Application by the As Sunnah mosque, on file with the author. The case is still pending. Norwood v UK (2004), admissibility decision, 23131/03. The pressing social need was recognized in I.A. v Turkey (2005), 42571/98. Communication under the International Covenant of Civil and Political Rights, 15 November 2011, on file with author.

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grounds of racial incitement because Moroccans and non-western immigrants were not deemed to be races, and creating a general exception (the public debate) to the incitement of hatred. They also pointed at the weak procedural position, and the systematic interruption of their argument by the judges and prosecutors. In doing so, they extensively referred to European and international legal instruments, such as art. 20 (ICCPR). The newspapers that did dedicate more than a few words to the fact that the plaintiffs were seeking further legal remedies were generally dismissive. One of the most serious Dutch papers, for instance, ran an op-ed by its former chief editor in which he emphasized that the Human Rights Committee communication would merely result in an opinion.56 ‘It won’t cause [Wilders] any problems, and he really shouldn’t be concerned about it.’ The Strasbourg court, the article went on to say, had only decided on cases in which the freedom of expression had been curtailed. ‘Declaring a violation because politicians have too much freedom? That would hardly fit the role of the Court as in the vanguard of the fight for freedom. Would you please curtail your parliamentarians? At a time when everyone complains about interference by the Court? One would need to see such a judgment before believing it.’ All this is in line with the way in which the international human rights perspective was systematically ignored in the Wilders case. This chapter has set out how the Netherlands experienced a marked increase in Islamophobia after 9/11, leading to polarization and enhanced discrimination of Muslims with the burning of mosques, physical attacks and increased discrimination in schools and in the workplace as examples. Wilders’ utterances exemplified this change in the political climate, and according to the plaintiffs even helped to cause it. In seeking to have him held accountable for this, they were first faced with a decision not to prosecute. It was only by invoking art. 12 of the Criminal Code of Procedure that they managed to get the Appeals Court to order a prosecution. In a decision remarkable for the strength of the views it expressed and the length at which it expressed them, that would have adverse effects later in the proceedings, the Appeals Court emphasized that Wilders could and should be held criminally accountable under European law.

56

F. Jensma, ‘Wilders’ vonnis blijft maatgevend’ (Wilders decision will remain the standard), NRC Handelsblad, 25 June 2011.

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The prosecutor, nevertheless, sided with the defence in asking for acquittal in the actual case. Whilst the case was regularly described as ‘very un-Dutch’, because of the fact that it was fought out in court, in the presence of the media, these attempts to keep the discussion on the limits of the freedom of expression out of court can be considered one of the many ‘typically Dutch’ elements in the way in which the case unfolded. The way in which the case was presented, and considered, as being all about the freedom of expression (and not the right to equal treatment, or the freedom of religion) is indicative of the special place that this right has in Dutch legal consciousness. Although international human rights bodies had given many pointers concerning the responsibilities that come with the freedom of expression, and the role of the State in setting limits, these were largely ignored in both the case itself, and the wider discussion of it. This had everything to do not only with legal culture, but also with the actors involved: the plaintiffs were granted very limited legal standing. Here, in short, we have an example of the impediments to human rights-based litigation in the Netherlands, and an explanation of why one of the most important discussions in the Netherlands post-9/11 barely referred to international human rights. The next chapter will look at another example of rights ignored, one in which the courts played no role, and in which it was up to the executive to fulfil its responsibilities under international law.

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C H A P T E R 6

DEALING WITH DOMESTIC VIOLENCE THE DUTCH WAY

On 6 March 2010 Amira Sadek Tahi arrived home in Zierikzee to find her nineteen-year-old daughter and her nine-year-old son shot dead by her husband. After attempting to kill her as well, the man, an Iraqi refugee, shot himself through the head in a nearby park, leaving her with only her middle son. The killings were long foretold.1 The family had fled from Iraq to the Netherlands in 1999. After a period of systematic abuse during a time when her husband did not allow Amira to leave the house alone, she decided to go to the police in 2009, after catching him sexually abusing their daughter. The man was imprisoned for two months, and threatened her by phone from jail. Upon his release, he threatened his wife again and disobeyed a restriction order, after which he was arrested once again. In prison, he attempted to order a gun by phone. When the actual case was heard, he was not only charged with threatening his wife but also with sexually abusing his daughter. During the hearing, both the prosecutor and the investigating judge asked that the man be denied probation, because of the fear of honour-related violence. The judges, however, let him go, and would later state that the reason for this was the confidentiality of judicial deliberations but that here, clearly, the interests of the accused had been afforded greater weight than those of society. Upon the man’s release, the prosecution had – in contravention of policies – not warned his wife. 1

This reconstruction is based on the factual overviews provided by the court, newspaper reporting (lexisnexis) and interviews.

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Amira, in the run-up to the drama, had sought help from virtually all authorities imaginable, from her doctor to the police, her psychiatrist, the mayor and her neighbours. The mayor stated that he had offered her a safe house, which she later denied. ‘I went to the police every day; this was my safe house’, ‘What’s all this talk about a house that I didn’t go to? Which mother wouldn’t go to a safe house with her children? Which mother?. . . Why didn’t they help me?’2 Two months before the murder she had told the local newspaper that she was permanently petrified and feared the moment that her husband would be released from prison. In the article she explained why she was scared to go a shelter, ‘I know many people here and have good neighbours. The children are at school here. But I am so scared. I don’t sleep at night. Is there no one with a solution?’3 After the murder, the general public, politicians and scholars criticized the approach taken by the authorities. A large number of people in Zierikzee signed the condolence book and expressed their dismay on the internet. ‘The cry for help in all these instances had been to no avail’, one newspaper wrote.4 The case was discussed in parliament, leading to a motion that asked the government to keep track of the number of killings as a result of domestic violence. A more farreaching motion was also proposed, asking the government to conduct research on the family murder, and earlier incidents like it, with an emphasis on the extent to which various authorities knew, the help that was on offer and how to prevent such events from occurring in the future. This motion, however, did not make it because all parties in government voted against it.5 In an example of scholarly criticism, an author of a book on incest in migrant families stated: ‘Sexual abuse is the most scandalous thing one can do within this man’s culture. His daughter openly accused him of it, and his wife left him . . . It was a crucial fault to let the man out on probation.’6 A psychology professor commented: ‘This man was clearly a great risk. . .this was not about legal impediments but about an inadequate assessment of the risks: the mayor should have ordered his involuntary confinement.’7 2 3 5 6

7

Testimony by Amira, www.novatv.nl, 8 May 2010. Wereldregio, 8 January 2010, www.wereldregio.nl. 4 Ibid. House of Representatives, Motion-Arib, no. 103 (28345), 16 March 2010. S. van der Zee, as quoted in O. van Vleuten, ‘Neem dreiging eerwraak serious’ (Take the threat of honour violence seriously), Nederlands Dagblad, 10 March 2010. C. de Ruiter, quoted in ‘Burgemeester had moeten ingrijpen’ (The mayor should have acted), Telegraaf, 10 March 2010.

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The authorities involved, however, mostly pointed fingers at one another. The mayor stated that he had written a letter arguing against the release, which had simply not reached the judges. He had been informed that the man had been released, but had simply assumed that Amira would know as well.8 The president of the court, on television, pointed to the confidentiality of judicial deliberations, and stated that the judges might have had the evidence for the facts committed, and for the gun threat, but did not have the reports by the rehabilitation services and the expert centre on honour violence that could have helped their work.9 The prosecution, which had tried hardest to keep the man incarcerated, initially shifted blame towards the mother (‘she was offered shelter’) but ended up apologizing for not having informed her of the release.10 The court ordered an internal investigation, but this was never made public. No official commission was installed, nor were other measures taken to investigate and learn from the tragedy in Zierikzee. In the context of this chapter on domestic violence, the Zierikzee killings serve as one example of the many domestic violence cases with legal consequences in the Netherlands.11 It also poses questions on the degree to which rights law is relevant in dealing with such a case. Domestic violence, after all, has increasingly become an international human rights concern, with the human rights monitoring mechanisms putting emphasis not only on the importance of criminal and administrative law but also on prevention, research and cooperation between all partners involved. Shifting the attention from rights implementation via the courts – as was the issue in the last chapter – to rights implementation via policy measures, this chapter will argue that, whereas many policies in the field of domestic violence were developed in the Netherlands in the early twentyfirst century, this was not caused by, or done in reference to, international human rights law but rather in splendid isolation. In order to do so, it will set out the extent of the problem and the many measures taken to address it over the years. Subsequently, it will relate these measures to approaches developed in international human rights law. A final section will refer back to the province of 8 10 11

9 Testimony by Mr Rabelink, www.novatv.nl, 2 May 2010. Ibid. Apologies of public prosecution, www.novatv.nl, under ‘Zierikzee’. The last time that this was officially registered, in 2006, there were 49 cases concerned www. huiselijkgeweld.nl.

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Zeeland, where the killings described above took place, in order to explore what the consequences of this rights realization in isolation could have been. DOMESTIC VIOLENCE IN THE NETHERLANDS

In official documents, the Dutch government defines domestic violence as an act of violence committed by a person from within the victim’s domestic circle. This circle includes partners, ex-partners, family members and family friends. The term ‘domestic’ therefore refers not strictly to the location where the violence took place, but to the relationship between the perpetrator and the victim. Domestic violence may take the form of child abuse, (ex-) partner-related violence in all conceivable forms, as well as the abuse, exploitation and/or neglect of the elderly. It may involve physical and sexual violence as well as psychological violence such as threatening behaviour or stalking.12

The prosecution services, in their interpretation of domestic violence, also emphasize the fact that that perpetrator and victim often – through force of circumstances – continue to live together, resulting in behaviour that follows certain patterns and a high risk of recidivism.13 As in many other societies, domestic violence is the most prevalent form of violence in the Netherlands. Research conducted in 2010 reported that between 200,000 and 230,000 people in the Netherlands are victims of structural domestic violence, and one million of incidental violence in the household (De Wijkerslooth 2000: 448–52). An additional 119,000 children were estimated to be victims of domestic violence in the same year.14 This means that nearly one-tenth of the Dutch population was a victim of evident domestic violence in the previous five years. Of these cases, 65% concerned physical violence 12

13

14

Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Sixth Periodic Report, Response of the Kingdom of the Netherlands to the list of issues (CAT/C/ NLD/Q/6) transmitted to the State Party under the optional reporting procedure (A/62/44, paras. 23 and 24). Openbaar Ministerie (Public Prosecution Service), Aanwijzing Huiselijk Geweld (Directive on Domestic Violence), 1 April 2003, p. 2. House of Representatives, letter from the State Secretary of Public Health, Wellbeing and Sports, Domestic Violence Action Plan, no. 117, 14 December 2011, referring to L. Alink et al. Kindermishandeling in Nederland anno 2010: De tweede prevalentiestudie mishandeling van kinderen en jeugdigen (NPM-2010) (Leiden: Casimir Publishers, 2011).

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and 8% sexual violence.15 In 2010, over 24,000 cases were reported to the police, with over 10,000 cases prosecuted resulting in 6,100 convictions.16 One-third of all the murders in the Netherlands in 2006 – the last time this was measured – were a result of domestic violence.17 The estimate is that women were the victims in 60% of cases.18 The first explicit Dutch policy measures in this field were taken following scholarly reports that domestic violence occurred much more often than assumed (Dijk et al. 1997; Römkens 1992). In 1997 a large-scale research project by the Ministry of Justice showed how a quarter of the people interviewed were victims of domestic violence on a daily, or weekly basis, although only 12% had reported the crime (Minister van Justitie 2002). Inspired by CEDAW, and the Beijing conference, cities like Den Bosch and Haarlem started to formulate policies to combat domestic violence.19 Partly as a result of this research, a working group drew up a ‘Stop domestic violence’ manifesto and presented it to the government in 2000. This culminated in the first national policies in the field, in a policy memorandum titled ‘Private violence, a public affair’ (ibid.). One of the first actions taken was a strengthening of criminal law in this field. Art. 304 of the Criminal Code provides that domestic violence is punished more severely than other forms of violence. In 2003, the public prosecutor’s office drew up directives in the field of domestic violence, in which it emphasized the need to press criminal charges as often as possible and to include help to the perpetrators.20 Additionally, it would be possible to prosecute even if charges were withdrawn, provided that there was enough evidence. This, in practice, can be difficult because it is, to give an example, up to the victims to decide whether the medical information is shared with the judiciary and the prosecutor. The Head of Police, in 2003, also set up a nationwide project aimed at tackling domestic violence, fostering police expertise and facilitating national registration of domestic violence cases. This

15

16 18 19

20

Government report, ‘Domestic Violence in the Netherlands’, www.rijksoverheid.nl/onderwerpen/huiselijk-geweld/documenten-en-publicaties/rapporten/2011/01/13/huiselijk-geweldin-nederland.html. CAT, p. 43. 17 Factsheet Domestic Violence, www.huiselijkgeweld.nl, p. 2. (WODC, 2010: 7). See the detailed overview at www.johannes-wier.nl/userfiles/file/GESCHIEDENIS% 20AANPAK%20HUISELIJK%20GEWELD%20febr%2007.pdf Openbaar Ministerie (Public Prosecution Service), Aanwijzing Huiselijk Geweld (Directive on Domestic Violence), 1 April 2003.

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programme was continued in 2007, now titled ‘A process that needs time and patience’.21 Much energy was also spent on raising awareness. In 2007 a large-scale publicity campaign was launched, to be repeated in later years, with a national phone number and a special website. Additionally, there were attempts to get the many authorities working on these issues to cooperate. In the province of Zeeland, for instance, where the incident described above took place, a ‘house of safety’ was set up to ensure cooperation between all parties involved. Nevertheless, cooperation remained a difficult issue. ‘We work with the Child Abuse Hotline a lot, but we can’t look into each other’s files. There is hardly any contact with the Child Protection Council, for instance’, as the coordinator of the Zeeland house stated.22 In the field of administrative law, the Temporary Domestic Exclusion Order Act came into force on 1 January 2009. It allows mayors to impose a ten-day exclusion order, restraining the perpetrator from entering the home concerned. Two years later, mayors have imposed over 5,000 of such orders. Whilst the big advantage of the order was that it could be imposed even before the violence had taken place, an evaluation pointed out that the orders were often only imposed after escalation (De Vaan and Schreijenberg 2010: 75–88). Another issue of concern was the regional differences in the implementation, and the follow-up after the lifting of the order. These regional differences could potentially be explained by the fact that, over the years, municipalities were given a greater role in combating domestic violence with the Social Support Act. This makes combating domestic violence a municipal responsibility, calling, for instance, for the provision of women’s shelters. By 2011, the government estimated that each year on average 10,000 clients and 4,500 children were given shelter at some 100 locations. In addition, there were pilot projects for victims of honour-related violence and of trafficking, and for people who were seriously threatened with the use of violence. In all, from a topic that hardly received policy attention domestic violence had made it to the centre of the policy agenda, with a large number of policy measures and changes in the field of criminal and 21

22

CAT/C/NLD/Q/6) transmitted to the State Party under the optional reporting procedure (A/62/ 44, paras. 23 and 24). F. Numeijer, Coordinator at Stichting Steunpunt Huiselijk Geweld Zeeland (Centre for Domestic Violence Support Zeeland), in ‘De Scoop op . . . de Zeeuwse agenda, December 2011’, p. 9.

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administrative law implemented. This throws up the question as to how the Dutch legal framework relates to international human rights law in this field.

INTERNATIONAL HUMAN RIGHTS LAW AND DOMESTIC VIOLENCE

In formulating the many policies described above, there was hardly any reference to the international human rights framework. This is remarkable for a number of reasons. Firstly, both domestic violence and violence against women have, over the past decades, increasingly come to be considered a human rights concern. In defining it as such, the Netherlands has played a key role in the international community. At the same time, international human rights monitoring mechanisms have, over the years, expressed concern with the way in which the Netherlands addressed domestic violence. The following sections examine the international context of the Dutch policy process. Domestic violence as an issue under international human rights law The rise of interest in domestic violence as a policy issue in the Netherlands is in line with developments all over the world in the 1990s. In turning domestic violence into a public affair, the Americas had taken the lead, as a result of both pressure by NGOs and ‘international norm socialization’ (Hawkins and Humes 2002: 231–57). The growing importance of the issue in international law came about as a combination of the expansion of legal thinking on state responsibility for human rights violations, the recognition of the scale of domestic violence and the fact that it so often went unpunished, and the legal recognition that states not acting against domestic violence violate the widely recognized right to equal protection under the law (Thomas and Beasely 1993: 36–62). In this process, the formulation of the Convention of the Elimination of All Forms of Discrimination against Women and its subsequent implementation played a key role. CEDAW was drawn up in 1979, and ratified in the Netherlands in 1991, after a lengthy process of adopting legislation. Whilst CEDAW does not explicitly speak about violence against women, the CEDAW committee in its General Recommendation 19 of 1992 recognized that violence against women, because they are women, or violence that affects women disproportionately 134

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is recognized as discrimination under the Convention.23 State parties to the Women’s Convention thus have an obligation to develop policies combating violence against women as a form of discrimination (Romkens 2010: 11–32). In the landmark case of Opuz v Turkey the European Court of Human Rights established the positive obligation of State parties to the ECHR to protect women against grave instances of domestic violence, and recognized that not doing so amounted to gender-based discrimination.24 In this case, the applicant and her mother had frequently been assaulted by the applicant’s husband, resulting in the killing of the mother. Turkey, in not prosecuting various criminal complaints, and not having taken sufficient measures when, for instance, the husband ran into the women with a car, had violated its obligations in the field of equal treatment, the right to life and the freedom from torture. The court emphasized that when authorities are aware of instances of grave domestic violence they have to undertake effective action themselves. These positive obligations were further worked out in the Council of Europe Convention on preventing and combating violence against women and domestic violence, of 2011.25 As the first binding instrument specifically targeted against domestic violence in Europe, it aims to prevent, prosecute and eliminate violence against women and proposes a comprehensive framework of policies and measures for the protection of and assistance to victims of domestic violence and violence against women. It emphasizes awareness, for instance, but also sets out what states should do in terms of substantive law. One of the most contested elements in negotiating the Convention was whether the scope should cover all forms of domestic violence, including violence against men, or whether it should focus on violence against women – in and outside of the domestic sphere. In the end, the Convention strikes a – rather awkward – compromise between the two. Overall, combating domestic violence has not only emerged as more and more of an issue under international human rights law in recent decades, but the extent of state responsibilities in doing so has become more explicitly defined, and worked out with greater precision in a variety of documents. A relevant development is also the increased emphasis in, 23 24 25

‘Violence against Women’, 29 January 1992. Case 33401/02, Opuz v Turkey [2009] ECHR. Convention CETS no. 2010. The Netherlands signed the Convention on 14 November 2012, but has not yet ratified it.

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for instance, ECtHR case law on state duties to investigate fatal incidents. If the right to life has been violated, the court has held, states have to start an independent, effective, open and prompt investigation of their own volition, involving the family. In the Ramsahai case, for instance, concerning a fatal police shooting, the court found that the Dutch police investigation had not been sufficiently independent.26 The Dutch role in formulating international human rights law In promoting international attention to domestic violence as a form of discrimination against women, the Netherlands has, over the years, played a key role. In the 2010 human rights update, for instance, destined to inform parliament about the implementation of the human rights strategy in foreign policy, the government proudly discussed its work in combating domestic violence.27 The Netherlands supported a number of projects in Brasil to combat domestic violence, including the raising of awareness. This was only one example of the efforts undertaken in the work of more than fifty Dutch embassies on these themes: ‘The activities include the development of legislation, strengthening the police and the judicial system, support to victims, capacity development and training for prevention, awareness, collection of data and research.’28 The strongest emphasis, however, was on prevention, with examples like support to popular TV series on the topic in Iraq, Nigeria and South Africa, to a helpline in Yemen and to data collection in Macedonia. The Netherlands also takes the lead in putting this issue on the multilateral agenda. Together with France, it proposed a UN resolution on violence against women which was adopted with consensus.29 It is actively involved in implementing the EU guidelines on violence against women and girls.30 The Dutch also frequently actively raised domestic violence concerns in UPR discussions, for instance in asking Angola to criminalize domestic violence and to increase victim support, and El Salvador to conduct research on the amount of people who die as a result of domestic violence.31 26 27

28 29

30

Case 52391/99, Ramsahai v The Netherlands [2007] ECHR. Ministerie van Buitenlandse Zaken (Ministry of Foreign Affairs), Mensenrechtenrapportage 2010: Rapportage Over De Uitvoering Van De Mensenrechtenstrategie ‘Naar Een Menswaardig Bestaan’ in 2010 (The Hague: MinBuza, 2010). Ibid., p. 17. UN Resolution Intensification of efforts to eliminate all forms of violence against women (A/ RES/64/137 of 18 December 2009). The Netherlands proposed the same resolution in 2007 and 2008, and said it would do so on a two-yearly basis as of 2010. General Affairs Council of 8 December 2008. 31 Ibid., p. 18.

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In writing up the Convention referred to above, the Netherlands was one of the chief negotiators. As stated, one of the big discussions in writing up this Convention was whether it should concern violence against women or domestic violence in general. Here, the civil servants negotiating on the part of the Netherlands strongly advocated a genderneutral position and, according to a later evaluation, ‘were knowledgeable, put forward their point of view in a clear manner and showed determination in the negotiations’.32 The Netherlands, the government would report later, mainly saw its role as ensuring that the treaty was in line with the UN agenda, and would upon adoption of the treaty proudly report that ‘most of the Dutch viewpoints were included’.33 It also emphasized how the government would use the Convention to address domestic violence in other countries. The international community and domestic violence in the Netherlands In another example of the ‘rights boomerang’ the countries scrutinized by the Netherlands also, increasingly, looked at this particular human rights violation in the country itself, expressing concern at both the incidence of domestic violence and the approaches to combat it. In its first reports on the Netherlands, in 1994, the CEDAW Committee noted with concern how domestic violence was still a serious problem in the country, and particularly asked for information on the situation of women from ethnic and minority communities and their experiences, including female genital mutilation, domestic violence and honour crimes.34 A decade later, the Committee used even stronger words to call for systematic collection of statistical data disaggregated by sex, type of violence, the relationship between the perpetrator and the victim and by ethnicity. It also re-emphasized the importance of awareness-raising and free legal aid for victims.35 The concern about the lack of free legal aid arose again in 2010. The Committee at this time praised the efforts made in drawing up a national framework, but did express concern at the gender-neutral character of

32

33 34 35

Inspectie Ontwikkelingssamenwerking en Beleid (Inspec Forate of Development Cooperation and Policy), De Nederlandse Inzet voor Versterking van De Raad Van Europa: Vijf Jaar Top Van Warschau (The Hague: IOB, 2011), p. 67. Mensenrechtenrapportage, note 27 above. Report Cahvio meeting by M. Vrolijk. CEDAW Concluding Observations, A/49/38 (1994), 17–20 January 1994. CEDAW Concluding Observations, CEDAW/C/NLD/CO/, 2 February 2007, at p. 20.

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the framework ‘undermining the notion that such violence is a clear manifestation of discrimination against women’. Similar concerns came up with other treaty monitoring bodies. Domestic violence, for instance, was one of the main themes in the first UPR in relation to the Netherlands in 2008. The CESCR, in 2010, called upon the Netherlands to enact a specific offence of domestic violence, to raise awareness and – again – to collect more disaggregated data on domestic violence.36 The Committee overseeing the implementation of the Convention on the Rights of the Child also emphasized the importance of systematic data collection, as well as of taking effective measures to prevent violence against children.37 The most elaborate recommendations to the Netherlands in this field, however, came from the UN Special Rapporteur on Violence against Women, Ms Yakin Ertürk. In recommendations totally disregarded by the Dutch media,38 she not only denounced the lack of systematic data collection, but also explicitly criticized the gender neutrality of Dutch policies. An effect of this approach, she argued, was the ‘culturalization’ of violence against immigrant women. ‘A false dichotomy between emancipated native Dutch women and oppressed immigrant women is hereby fostered in the public perception. Women and men with immigrant backgrounds are categorically stigmatized, either as victims or as perpetrators which only increases their marginalization and polarizes the society between “us” and “them”.’39 Such an approach, the rapporteur held, failed to place discrimination against immigrant women in the wider context of gender discrimination and led to far too much emphasis on honour-related violence and female genital mutilation, whilst disregarding the general vulnerabilities of immigrant women. One of the real problems, for instance, was the difficulties that immigrant women faced in obtaining an independent residence permit: they had to be prepared to report abusive partners to the police. Another was the lack of social support to undocumented migrant women, who are not legally entitled to a shelter paid for by the government.

36 37 38

39

CESCR, Concluding Observations, E/C.12/NDL/CO/4–5, 9 December 2010, at p 21. CRC, Concluding Observations, CRC/C/NLD/CO/3, 29 March 2009, at pp. 38, 48. A few newspapers did report on her findings on disappearances from asylum centres, and her visit to the Red Light District (Lexisnexis). UN Special Rapporteur on Violence against Women, Report on the Netherlands, 15 March 2006, A/HRC/4/34/Add.4 at 23.

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The rapporteur also drew attention to trafficking, a problem long underestimated in the Netherlands. The difficulties that abused victims of trafficking faced in obtaining a resident status was also one of the main concerns of Dutch NGOs seeking help from the international monitoring bodies. Whereas women in this situation can apply for a special resident status, the so-called ‘B9 status’, this is linked to their cooperation and support in trafficking cases. In addition, there were reports of such a status becoming more and more difficult to obtain over the years, and the police failing to identify victims of trafficking and supplying them with the necessary information. TWO WORLDS?

How did the concerns above affect Dutch policies? Whilst the initial policies did refer to CEDAW, the national framework developed over the years appears, interestingly, to be an exclusively Dutch affair, developed in the national context. The first big policy memorandum in this field – ‘Private violence, a public affair’ – for instance, did give the responsibility of the government in securing the safety of its citizens as the main reason, but also briefly said that this was in line with international obligations (Minister van Justitie 2002: 9). However, the central government website, developed over the years, did not refer to any of the international treaties discussed above in setting out the legal and policy framework.40 The policy documents developed, for instance, for the police, did not refer to the international human rights framework either (Evers 2006). A report for mayors did mention the ECHR and the ICCPR, but only in discussing the infractions of the right to privacy that measures against domestic violence could entail (Beke and Rullens 2008). Another widely quoted report mentioned the importance of international exchange of experiences, but not the legal framework (Meintser 2010). In all, the relationship between treaty obligations and Dutch policies in the field of domestic violence became less and less visible. When a large evaluation of the Dutch policies took place in 2010, the framework for that was based on the government rationale that ‘next to safety in the public domain, the government also considers the safety of its citizens “behind the doors” part of its responsibility. In order to create a safer society, the problem of domestic violence has to be addressed’ (Veen 40

www.huiselijkgeweld.nl.

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and Bogaerts 2010: 16). There was no mention of treaty obligations, nor was the degree to which the Netherlands complied with them part of the evaluation. Whilst the relevance of the Opuz case and the obligations of the state in preventing domestic violence that the case presented were widely recognized in the legal literature, this hardly surfaced in policy debates.41 Two important policy documents sent to parliament by the government in 2011 made no mention at all of treaty obligations or the international legal framework relating to domestic violence.42 There were also a number of areas in which Dutch policies explicitly departed from the emphasis that can be seen internationally, for example in the importance of the systematic collection of data, of gendersensitive policies and the danger of culturalization of policies in the field of domestic violence. It was only after thirteen years, in 2010, for instance, that the government issued a report on the extent of domestic violence in the Netherlands. This report differentiated between immigrant and non-immigrant populations but did not, in spite of the explicit request by many international organizations, present a further breakdown of the data. Another departure from international recommendations lies in the gender-neutral character of Dutch policies. The Minister of Justice had told the UN in 2008 that the country was considering whether a genderspecific formulation of policies was advisable, but it explicitly advocated a gender-neutral formulation of the Council of Europe Convention in 2011.43 Additionally, the policies formulated in 2011 were genderneutral again, emphasizing how both men and women were victims of domestic violence and making no reference to how domestic violence can also be understood as a form of discrimination against women, and how policies should depart from that point of view. The special rapporteurs’ warning not to ‘culturalize’ domestic violence, or to draw excessive attention to honour killings and female genital mutilation, thus setting immigrant women apart from those born in the Netherlands, was not heeded either. Honour-related 41

42

43

Via Kluwer Navigator: the case was excerpted in all the main Dutch legal periodicals: Delikt en Delikwent, Rechtspraak van de Week, Nederlands Juristenblad, NJ. It was only mentioned in parliament once, when a parliamentarian asked whether the Netherlands passed the ‘Opuztest’, but never received an answer (House of Representatives, Debate on Honour-Related Violence, 2009–2010, 30388, 9 March 2010). House of Representatitives, Letters of the State Secretary for Public Health, Welfare and Sports, 28325, no. 115 of 24 October 2011 and no. 117 of 14 December 2011. Report of the Working Group on the UPR, the Netherlands, A/HRC/8/31, at p. 59.

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violence and female genital mutilation played a central role in the 2011 policy documents. The government, for instance, set up special shelters for victims of honour-related violence and wrote a policy memorandum, ‘Domestic violence and honour related violence’, discursively linking domestic violence to immigrant cultures. The domestic violence website had a special section on honour-related violence, linking this violence to Mediterranean, Middle-Eastern and Asian cultures, with little attention to the socio-economic or wider gender-based factors underlying gender violence. In short, it seems as though the Dutch policies were hardly informed by the agreements that the Netherlands had made internationally in the field of domestic violence, but developed in isolation, and sometimes even in deviation, from these international agreements. In assessing the degree to which this is actually problematic, let us return to the same province of Zeeland in which the Zierikzee family murder took place. ANOTHER CHRONICLE OF A DEATH FORETOLD

On 19 July 2011 an elderly couple, Henk and Trees Schroevers, were stabbed to death in their home by their daughter’s former boyfriend, Fred B., in the Zeeland town of Middelburg. After a long search with helicopters, the perpetrator was apprehended in a nearby graveyard. The year before, the ex-boyfriend had been detained for domestic violence. Upon his release, he had set fire to his ex-girlfriend’s house in Haarlem, and had to be hospitalized with severe burns himself as a result. During that time, the public prosecutor decided not to incarcerate him again, and he disappeared from sight. The prosecution had summoned him to come to the police station a number of times, but he had not responded. He, as it would later transpire, had returned to his Belgiam homeland where he committed a few thefts and ended up in prison for half a year for using violence during a raid.44 The parents had been petrified of the ex-boyfriend. Fred. B had not only permanently threatened their daughter but also thrown a stone through their window and broken into their car. As a neighbour stated ‘They even found the guy in their backyard at some point. They were 44

Reconstruction based on reporting, personal discussions and J. Naeye, D. W. Steenhuis and P. J. van Zunderd, ‘Van Huiselijk Geweld naar Moord: Verslag van het Onderzoek naar de Politie- en Justitiecontacten met Fred B. voorafgaande aan zijn Aanhouding als Verdachte van de Dubbele Moord in Middelburg op 19 Juli 2011’ (2011. on file with author).

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concerned about their daughter, but also felt threatened . . . They filed a complaint with the police and were disappointed when it turned out that the police could not do anything.’45 A colleague, who worked with Henk Schroevers at the labour union, testified how ‘Henk didn’t dare leave his wife and daughter alone at home anymore because of the threats. He asked us to be allowed to work at home, and we gave him that space.’46 After the event, the public at large was as shocked as in the Zierikzee case, and openly wondered whether the authorities could not have done more. The media reported on neighbours who all knew about the threats.47 Parliament, again, wondered whether the authorities could and should not have done more about the ‘ticking bomb’, Fred B.48 In response to this criticism the public prosecutor’s office put in place a commission to investigate the contacts with the police and the judiciary that took place in the run-up to the double murder. The Naeyé Commission was asked to investigate whether the authorities involved had acted professionally, and taken adequate measures (Veen and Bogaerts 2010: 16). The Commission, consisting of a retired professior of criminal law, a former police officer and a former prosecutor, went through over 1,000 pages of documentation and spoke to 29 people. In its report, it gave a very detailed overview of the run-up to the drama: the domestic violence in Haarlem, the protection order in Haarlem, the arson in the daughters house combined with assault, the perpetrator’s release from the hospital and his unwillingness to show up at the police station, the theft of a blanket from the parents’ car in Middelburg, the stone that went through the window in the parents’ house and the constant threats via email and telephone, the way in which Fred B. spent some time in jail in Belgium and – finally – the tragic murder. In assessing whether the authorities had taken adequate measures the Commission made use of the Dutch criminal code and the specific police instructions on domestic violence and honour-related violence. In all, it 45

46

47

48

‘Het Openbaar Ministerie verloor man uit het oog – Ex-vriend dochter plaag voor het gezin’ (The public prosecution lost sight of the man – ex-boyfriend plague for the family), De Stentor, 21 July 2011. ‘Blunders justitie schokken kamer’ (Legal blunders shock parliament), De Telegraaf, 21 July 2011. F.i. L. Schalkwijk, ‘Ze voelden zich al veel langer niet meer veilig’ (They hadn’t felt safe for a long time), Algemeen Dagblad, 20 July 2011. Ibid.

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concluded that the authorities had acted in line with national domestic violence policies, and that its actions had been ‘responsive, effective and empathic’. The Commission did, however, point at a legal blunder: in contrast to what the police thought, Fred B. could have been arrested again for the same fact, the arson. Another neglected aspect of police instructions was that someone should always be tried for violating a domestic protection order, unless there are good reasons not to do so. This had not taken place here. The commission, however, felt that the prosecutor had stayed within the margins of his discretion. Additionally, the police should have heard the man whilst he was in hospital. In all, the Commission recommended that the prosecution services should address the ‘holes in their legal knowledge’, work towards a better coordination between criminal and administrative sanctions, and give houses of safety a more central role in cases like this. In all, the Commission’s response was in line with reflections of the Middelburg mayor and the head of the Zeeland police services: You simply can’t cycle after someone all day to keep an eye on them. The only way to prevent these dramas is to lock people up. And there are limitations to the degree to which you can do that; people are only committed involuntarily in very exceptional circumstances. We can’t lock someone up because we suspect that he’ll do something. There are countries where that happens, and we think that that’s a disgrace. As long as we feel that people can only be imprisoned under very strict conditions, we all accept the risk. I really don’t find it fair to place a special responsibility on the youth services, the public prosecutor, or the police.49 CONCLUSION

The essence of human rights lies in the notion of individuals as rightsholders and State parties as duty-bearers. Over the years, these duties have expanded under international human rights law. Domestic violence, substantively, has increasingly come to be considered a human rights violation, and a violation of the fundamental right to equal treatment for women. State responsibilities have come to include positive obligations in preventing, prosecuting, punishing and conducting research on domestic violence. 49

‘Iemand vastzetten is de enige manier om dit soort drama’s te voorkomen’ (Locking someone up is the only way to prevent these dramas), PZC, 29 August 2011.

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As of the beginning of the millennium, domestic violence came to occupy a prominent position in Dutch policy debates as well. The formulation of CEDAW and its endorsement by Dutch NGOs and a number of cities, combined with research on the size of the problem in the Netherlands, helped initiate this agenda-setting. The way in which policies were worked out over the years, however, bore little connection to the emphases put by international human rights law. There was, for instance, little systematic data collection and sparse information on how domestic violation affected certain population groups more than others. Also, the Netherlands continued to emphasize gender neutrality in its policies in spite of discussions held, and promises made, at the international level. Finally, warnings against the ‘culturalization’ of domestic violence policies were ignored with a heavy-handed emphasis on honour killings and female genital mutilation in policies, and little attention to the socio-economic and gender discrimination that played a role in causing these crimes. The most striking and fundamental divergence between international and national discussions, however, lies in the fact that combating domestic violence was presented as a policy choice, and not framed in terms of victims’ rights and state responsibilities. Policy briefs, instructions and the central website simply did not refer to underlying principles as laid down in international treaties. The way in which this has played out becomes apparent when looking at the two cases from the province of Zeeland discussed in this chapter. In both cases, citizens had explicitly and repeatedly sought help from the authorities, seeking to avert a clear danger. Whereas not all such events can be prevented, or all risks averted, the position of the authorities after the killings in Zierikzee and Middelburg revealed a failure to realize state responsibilities in preventing, prosecuting and investigating domestic violence. The case of Amira Sadek Tahi, to start with, clearly illustrates how socio-economic dependence and cultural isolation can provide a context which enhances the danger of domestic violence. Both the media and the judges framed the case as an ‘honour killing’ – the judges, for instances, pointed out how they were hampered in their decisionmaking by the fact that a report from the national centre with expertise on honour-killings was not available and thus could not be included in the facts providing the basis for their decision. In the meantime, the essential threat to the lives of both Amira and her children was clear. The fact that, after the event, the authorities all pointed at one another, did not accept responsibility and did not instigate an independent 144

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investigation can be considered at odds with the international human rights law set out above. In the second case discussed, that of Henk and Trees Schroevers, the prosecution services did ask for an investigation. Again, however, it is striking how the investigating commission evaluated the events on the basis of the police instructions and did not refer to the underlying human rights framework. Viewed in this manner, such killings – in which the authorities clearly had a responsibility in the chain of events – become tragic incidents instead of violations of the state responsibility to prevent, punish and investigate domestic violence.

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Arif (aged 12, born in Azerbaijan): ‘We were put behind the gate of the asylum centre with the whole family, and not given time to put on our shoes and clothing. We were wearing socks, and our shoes were thrown after us. My sister was only wearing her pyamas.’ Hevien (aged 10, born in the Netherlands): ‘We ended in a park, where we slept under a tree. There was also a homeless person, who asked for money. But my sister said: “we’re homeless as well”.’1

At a conference in Middelburg in 2007, titled ‘Socio-economic rights: lessons from the South?’, Dutch judges, lawyers and policy-makers listed listened intently to the South African constitutional court judge Albie Sachs and his Indian colleague Justice Muralidhar. They set out the role of their courts in the judicial enforcement of social and economic rights, like the right to housing. The Dutch Minister of Justice, Hirsch Ballin, in contrast, explained how social rights in the Dutch Constitution are mostly considered as ‘programmatic’ (ideals for the goverment to live up to), and how the courts have decided that most provisions in the International Covenant on Economic, Social and Cultural Rights do not have direct effect. That evening, during a sailing trip, the judges openly wondered why the Dutch interpretation of the legal status of social rights differed so strongly from Southern countries. Turning away from the way in which some international human rights are ignored in considering pressing social issues in the Netherlands, this chapter and the next look at the conditions under which they are invoked. In doing so, the current chapter highlights the position and politics adopted by NGOs and human rights lawyers, whereas the next chapter explicitly discusses the way in which the government seeks to pull certain rights into domestic discussions, and lock in its policy preferences at the international level. This chapter will 1

Excerpts from Defence for Children, Voor Ieder Kind Een (t)Huis: Het Recht Op Onderdak Voor Illegale Kinderen in Nederland (Leiden: Defence for Children, 2008).

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look at both social rights as laid down in international treaties like the ICESCR in general, and the right to shelter in particular. It will argue that these rights are also primarily conceived of as ‘rights for others’ and recognized for that reason. Since the ratification of the ICESCR, legal blockades have been created, hindering actual enforcement of the social and economic rights that it contains and causing lawyers and NGOs to increasingly come up with creative litigation strategies. A question that might arise concerns the extent to which violation of social and economic rights is an issue at all. After all, the Netherlands is a welfare state with public health care, free education for all, unemployment benefits and an extensive programme of social housing. Here, it is instructive to point to the concerns about the Netherlands raised in 2010 by the CESCR, the Committee that oversees the implementation of the Covenant.2 It was a long list. One major concern was the discrimination faced by migrants and persons from ethnic minorities in the enjoyment of economic, social and cultural rights, particularly with regard to employment, housing, health and education, and the way in which this is made worse by the rise in racism and xenophobia. Other topics of concern were discrimination against people with disabilities in the field of employment and education, the under-representation of women in the labour market, their concentration in part-time employment and their under-representation in political life. The CESCR was worried about compulsory labour for detainees and the protection of domestic workers, in particular concerning health insurance and pensions. An additional concern was with a restriction that the government imposed on migrants receiving pension benefits, stating that a long-time affiliation with the country was necessary. In addition, as discussed before, there was the scale of domestic violence. Many concerns revolved around the position of undocumented migrants. For one, there was the Dutch practice of alien detention: every year about 10,000 irregular migrants and asylum-seekers are detained in the Netherlands (Amnesty International 2008; Amnesty International 2010).3 The average length of alien detention in 2010, for instance, was 97 days, which is way higher than other European countries. The Committee also recognized the concerns raised by many Dutch NGOs on the 2

3

UN Economic and Social Council, E/C.12/NDL/CO/4-5, Concluding Observations of the Committee on Economic, Social and Cultural Rights on the Netherlands, 19 November 2010. NJCM (Dutch section of the ICJ), Addendum to the Joint Parallel Report to the Combined Fourth and Fifth Periodic Report of the Netherlands on the ICESCR, 28 October 2009.

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practical impediments faced by undocumented migrants in exercising their right to healthcare and education. One example is the problems faced by undocumented children in vocational programmes, who cannot complete internships because of work permit requirements in the Netherlands.4 Finally, the CESCR regretted the fact that undocumented migrants, including those with children, were not entitled to a right to shelter and were rendered homeless after their eviction from reception centres. It is the way in which NGOs and lawyers have sought to implement the right to shelter for this latter group that will form the main case study in this chapter. Before addressing this, however, it is necessary to investigate the place of the ICESCR in the Dutch constitutional order, and the impediments standing in the way of judicial review of social and economic rights. The Dutch position in drawing up, signing and (not) ratifying the Optional Protocol to the ICESCR is instructive in this respect. Against this background, the next section will discuss the creative ways in which lawyers, NGOs, parliamentarians and municipalities have sought, partly in interplay with international organizations, to get the right to shelter for undocumented migrants enforced via other means. THE ICESCR

It has often been described how, in the process of writing up the UDHR, western countries emphasized the importance of civil and political rights, whereas the countries from the global South sought to include economic and social rights (Ishay 2004). As the Universal Declaration was worked out into two binding treaties, the ICCPR and the ICESCR, the social and economic rights were initially considered to have a different legal status to that of their civil and political counterparts: more ‘programmatic’, with goals being set for governments to strive towards, instead of directly enforceable by their citizens (Coomans 2006). This latter view is in line with the way in which social rights came to be formulated in the Dutch constitution. Social rights like the right to work (art. 19), subsistence (art. 20), a hospitable environment (art. 21), health care and housing (art. 22) were only included in the large constitutional revision of 1983, even if the possibility of doing so had been discussed by constitutional committees since the formulation of 4

In 2012, the government announced an initiative to put an end to this.

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the UDHR.5 They are generally formulated in a ‘programmatic’ manner – ‘the government takes care of ’ – and cannot be invoked in court by citizens, also by reason of there being no judicial review of the Constitution in the Netherlands. In a rationale for the constitutional revisions in 1983, the government explicitly indicated that the social and economic rights in the Dutch Constitution were formulated in a more general manner than their international counterparts in the ICESCR.6 ‘The national arrangements leave the implementation of social rights up to the legislature and the executive. In the Netherlands, where the precision of social rights has largely been realized in various policy fields, there is no need for the Constitution to indicate what this implementation shall entail.’ This means that people in the Netherlands have, for the more precise specification of their social rights, had to rely on international treaties like the ICESCR. An additional reason for this is that, as has been discussed in earlier chapters, judges are not allowed to review acts of government against the Constitution, but can exercise judicial review of international treaties. The following sections will discuss the implementation of the ICESCR in the Netherlands, the case law on the rights contained in it and the Dutch position towards the Optional Protocol to the ICESCR. Enforcing the ICESCR – A chicken and egg game After having been signed in 1969, the ICESCR finally came into force in the Netherlands in 1978. As of 11 December, the rights contained in the Covenant were more important than national law, from economic rights like the right to work, and to decent labour conditions, the right to union membership and the right to social benefits, to the right to an adequate standard of living, to health and to education. The Netherlands had played an important role in drawing up the Covenant: it contributed to formulations at various stages, gave extensive governmental comments that were included in the proceedings and did a number of proposals for amendments.7 The main rationale for signing the treaty, in addition to the European Social Charter, was to promote the international rule of law. 5

6

7

On art. 23, the right to education, and its specific meaning in the Netherlands, see the next chapter. Bill on social rights, Parliamentary proceedings II 1975–1976, 13873, and 1980–1981, 16908, Memorandum of Explanation, no. 3. House of Representatives, 1975–1976, 13 932 (R 1037), nos. 1–6

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In the first place, the Kingdom, as a member of the United Nations, has agreed to contribute to promoting the respect for human rights in the world community. The UDHR formed the basis for this, and the International Bill of Rights is a necessary addition to this basis. Next, the government would not consider it right if people under its jurisdiction would fall outside of the guarantees created by the United Nations.

This being said, the government indicated from the start that the social and economic rights in the ICESCR would not be directly applicable to people in the Netherlands. As the explanatory memorandum to parliament famously put it: ‘The nature and the contents of the ICESCR, together with the formulation of the articles, indicate that the treaty is geared towards incremental and progressive realization by means of legislative and other policy measures (see art. 2(1) and art. 17(2)). Generally speaking, the provisions in this treaty will not have direct effect.’8 Even if, in the Dutch legal system, it is up to the judiciary to decide whether a treaty provision has direct effect as intended by art. 93 and 94 of the Constitution, the explanatory memorandum strongly set the tone for the judicial interpretation of the rights concerned. Over the years, Dutch judges have generally referred back to the 1975–76 parliamentary discussions in denying direct applicability to the right to education, the right to health and the other rights in the Covenant. The few deviations from this general line in the case law, interestingly enough, took place in the early days after the ratification of the Covenant. In 1979, for instance, the highest administrative court considered the right to housing in the Covenant to have direct effect.9 Similarly, in 1991, the Administrative Appeals Court held that the principle of equal remuneration in the Covenant had direct effect.10 However, it overturned this decision once the Supreme Court ruled that this was not the case.11 An annex to the Dutch submission to the CESCR in 2010 shows that out of the 50 cases in which judges were to rule on the direct applicability of the Covenant, they denied this in all but the 1979 case. In the meantime, international jurisprudence, case law in other countries and the recommendation of the CESCR have all increasingly emphasized the direct applicability of the rights in the Covenant. In its 8 9 10 11

Ibid., p. 11. ARRS (Legal Division of the Council of State), 10 May 1979, AB 1979, 472. CR v N (Administrative Appeal Court), 17 December 1991, RSV 1992/16. Supreme Court, 20 April 1990, NJ 1992, 636.

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General Comment 9 (of 1998) the Committee even emphasized that there is no right in the Covenant ‘which could not, in the majority of systems, be considered to possess at least some justiciable dimension’. In countries like South Africa and India, but also in Spain and many Latin-American countries, the direct applicability of social and economic rights was firmly established in case law in the late twentieth and early twenty-first century (Coomans 2006). Paradoxically enough, it was in Maastricht, in the Netherlands and largely under the leadership of Dutch scholars, that the highly influential Maastricht Principles on the enforceability of socio-economic rights were set out, which emphasized the minimum core content of these rights (Boven, Flinterman and Westendorp 1998). Nevertheless, the scholar who sighed that ‘the enthusiasm of academics and legal aid providers has often diminished in the face of open policy formulations, the carefulness and the cynicism of the bureaucrats and the increased formalism of the administrative courts’12 was right. Deciding on the enforceability of socio-economic rights in the Netherlands became something of a chicken-and-egg situation, in which the judiciary invariably pointed at the 1975–76 parliamentary proceedings in denying parties a legal remedy for the violation of these rights. The government, in turn, pointed its fingers at the judiciary. In responding to the concerns raised by the CESCR on the lack of direct applicability of the Covenant in the Netherlands, for instance, it wrote: The Netherlands is bound to bring about a situation that complies with what is stated in the treaty. Whether this is done via direct effect of treaty provisions or indirectly via implementing legislation, is up to the national constitutional system to decide. Treaty provisions that primarily entail an order to the Dutch legislator and administration are considered, by the Dutch judge, not to have direct effect – they are given effect via legislative and policy measures. Whether a provision has direct effect, in the Netherlands, is ultimately decided by the judge, who has – up to now – ruled that individuals cannot base individual rights on the Covenant, but only on the laws implementing it.13

Critical Dutch scholars have remarked, in exasperation, how this denies the rights in the Covenant an effect remedy. Without direct applicability, after all, there is no judicial review either – something that 12 13

Personal communication, February 2012. House of Representatives, Answers to the questions of Timmermans and Spekman on the CESCR recommendations, 1 June 2011.

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is necessary to realize positive obligations and stop regressive measures. ‘It is strange to become party to a Covenant that grants individuals rights, but to make it impossible to rely upon these rights in front of a judge. What’s the point, then?’14 For, even if the government and the legislature could (and should) technically review acts and policies against the Covenant, this has hardly ever happened: discussion on raising tuition fees in higher education, budget cuts on primary education, social welfare and on health care were not framed in terms of the rights in the Covenant, and its prohibition of regressive measures. One reason for this could be a plain lack of knowledge of the existence of the Covenant. In a discussion with a parliamentarian who strongly advocated for a better social position of undocumented migrants, it turned out that he had never heard of the ICESCR or its recommendations, asking ‘Is this Covenant something that could be of use to what we try to achieve here?’15 Signing (not ratifying) the OPCESCR One legal mechanism to potentially break through the Dutch deadlock is the Optional Protocol to the ICESCR. In allowing for individual complaints to the CESCR of violation of socio-economic rights, the Protocol by definition recognizes the direct application of these rights. It was, for this reason that human rights experts gathered in the Commission on Human Rights of the Advisory Council on International Affairs sighed in disbelief when they, in 2008, learned that the Netherlands had been among the first State Parties to sign the OPCESCR. Why had the government, that had so consistently opposed granting socio-economic rights direct applicability, agreed to have their justiciability decided upon in the context of the Optional Protocol? Interviews and discussions with a number of the parties involved revealed the political strategy followed by Dutch NGOs and parliamentarians, and the way in which the rationale – here too – behind the Dutch signature was one of human rights exportism and the need to defend human rights elsewhere. As a political lobbyist put it: ‘Look, this is not rocket science, but you do need some political savvy and a strategy.’16 Apparently the Netherlands had, initially, been one of the countries to obstruct the coming about of an all-encompassing protocol. 14 15 16

E-mail correspondence with Professor A. F. M. Coomans. Meeting with a parliamentarian. 21 April 2011. Interview, with a political lobbyist Amnesty International, 20 October 2010.

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Instead, it advocated an a`-la-carte approach in which countries decided which rights they wanted to have reviewed by the CESCR. ‘But if you opt for such an a`-la-carte approach, you know that you’ll be left behind with nothing but a starter.’ At the same time, in 2008, the Minister of Foreign Affairs had just issued his human rights strategy for Dutch foreign policy, and very much wanted to strengthen Dutch leadership in the international promotion of human rights. The Ministers of Social Affairs and of Justice were much more hesitant. One ministerial fear was that a committee in Geneva – of which it was unclear how professional it would be – would come up with ‘all kinds of statements on the Dutch situation’. ‘We will end up with an extra legislature the quality of which we can’t control, but which could possibly set standards. Even if the CESCRs decisions are not binding there is the danger that a Dutch judge will pick up on them and indicate that they set standards.’17 The main specific fear appeared to be the tension between the Benefits Entitlement Act of 1998 and the Covenant. The Act provided that ‘An Alien who is not lawfully resident may not claim entitlements to benefits in kind, facilities and social security benefits issued by decision of an administrative authority’ (art. 10(1) Aliens Act). These include social benefits in general, unemployment benefits, sickness benefits, disability benefits, child benefits, old age benefits.18 This provision was subsequently included in the various social benefit laws. On the basis of this Act, undocumented migrants where there are no proceedings pending enjoy no protection of economic and social rights at all, except access to basic health care, education for minors and legal aid. Whereas the denial of social rights to undocumented migrants can be considered a violation of the Covenant in itself, the fact that the Act was much more stringent than earlier Dutch policies, in which resident status and social rights were not linked, has often been described as a violation of the Covenant in itself (Boven, Flinterman, and Westendorp 1998). The NGO strategy consisted of maintaining close contact with the Foreign office civil servants, who were largely in favour of signing the Protocol. These high-level bureaucrats indicated when it would be useful to send an official letter. ‘It was only at that point that we sent a 17 18

As stated by a political lobbyist to Amnesty International, 20 October 2010. NJCM (Dutch section of the ICJ), Addendum to the Joint Parallel Report to the Combined Fourth and Fifth Periodic Report of the Netherlands on the ICESCR, 28 October 2009.

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letter to all the relevant ministries, stating that the Netherlands cannot enthusiastically adopt a human rights strategy to be one of the first to obstruct such a protocol that can be really useful in the South.’ In addition, the NGOs ‘fed’ questions to a parliamentarian, meant to endorse the position of the Minister of Foreign Affairs amongst his colleagues.19 In the end, the Netherlands was one of the first twenty countries to sign the Optional Protocol. After that, however, nothing happened. On the one hand, the Netherlands generally take a long time in ratifying treaties: the nine years that it took to ratify the Covenant itself are a case in point. On the other, it is easy to imagine that the tension between the ever-stricter approach towards undocumented migrants and general budget cuts in the socio-economic sector formed the main explanation for the governmental reticence. ‘NO CHILD PUT OUT ONTO THE STREETS’: A CASE STUDY

The lack of direct applicability of social rights forced those actors who wished to see these rights realized to look for alternative strategies. One field in which this was partially successful was in ensuring the right to shelter for undocumented children. As a result of more and more stringent immigration policies adopted after the turn of the millennium, the Dutch government had turned to evicting undocumented families who did not want to cooperate in returning to their home country, or could not return anywhere, from the detainment camps and from the shelters for the homeless. Between January and 15 March 2010, for instance, fourteen families with underage children were put out on the streets from asylum centres.20 As part of a large-scale campaign ‘No child put out onto the streets’ the Dutch NGO Defence for Children put this practice before the European Social Committee in Strasbourg. The Committee ruled that banning children from shelter in a situation of extreme helplessness violates their humanity dignity, and was in contravention of the European Social Charter.21 The Dutch government protested against this, stating that it had made the reservation that the Charter only 19 20

21

House of Representatives, Questions by Parliamentarian Van Dam, 27 March 2008. ‘14 gezinnen met asielzoekers op straat’ (14 families with refugees out on the streets), NRC Handelsblad, 25 March 2010. European Committee of Social Rights, Defence for Children v the Netherlands, 20 October 2009, 47/2008.

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applied to nationals, and that the Committee’s decisions could not be considered binding. In response to this the Council of Europe Committee of Ministers passed a resolution endorsing the decision of the Committee. Also, a number of Dutch courts referred to and agreed with the ESC decision. In the end, forced to do so by a parliamentary memorandum, the government put the question as to whether it really had to provide shelter to undocumented migrant children to the Council of State. In the meantime, it was forced to provide such shelter as a temporary measure. This change of policy was the result of the concerted effort of a large number of actors: lawyers, NGOs and the media, international organizations, parliamentarians and municipalities. The following paragraphs will consider the respective role of each of these actors. The lawyers ‘I tend to lose 98% of my cases’, the wild-haired lawyer, Pim Fischer, told my students in April 2011. The students were still impressed by a meeting that they’d had a few days earlier with a group of undocumented Iraqi young men, who slept in the park of the small college town and told stories about unreachable lawyers, moving from house to house, not daring to go to the doctor, and being picked up by the police responsible dealing with aliens to be put out onto the streets again weeks later. I had invited lawyer Fischer to set out how, in implementing human rights – the theme of the course – the devil in the denial of rights often lies in the detail of administrative law, and what possibilities he had found, in the Dutch legal system, to address this. Mr Fischer, who almost only handled cases in the field of social insurance for undocumented migrants, seemed well suited to explain the strategies of litigating socio-economic rights in the absence of their direct applicability. One of the cases Mr Fischer quoted concerned the right to water. ‘My client did not have an income. As a result, he could not pay the water bills. The municipality closed off his water. This meant that the family had nothing to drink. Also, there was no water to clean the bottles of his baby son, who had severe diarrhoea. You know, if you don’t have water, you die in the end.’ Whilst he won the initial District Court case on the basis of this argumentation, it was overturned on appeal.22 He also described his many attempts to claim child care benefits for undocumented migrant children. ‘If they do not have an income, and can thus 22

Maastricht District Court, 25 June 2008, LJN: BD5759.

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not afford to pay for housing, these women become extremely vulnerable to exploitation. I feel that many of my clients, as a direct result of the lack of any income, are forced into prostitution or other situations of extreme exploitation.’ The students were particularly intrigued by Mr Fischer’s description of his litigation strategy. ‘Of course, the first thing to do is to look which judges are particularly susceptible to humanitarian arguments, and to subsequently look for a good case in that particular town or – if need be – take someone there so that the case can be put to that particular bench.’ In addition, he told the students, you need just the right case: ‘Not one that is too heart-breaking, because that runs the risk of going down as the exception.’ Fischer was the lawyer who brought the Defence for Children case to the European Social Committee. ‘What you need, ultimately, is a norm. That there is someone, at the international level, who says that this is simply unacceptable. Afterwards you can continue to refer back to that norm in the domestic context.’ It was against this background that the lawyer presented his plans to put the denial of child benefits to the CEDAW committee: ‘The idea would be to just have a line in the sand, and this is one international human rights body that decides quickly so that we can get on with litigation in the Netherlands.’ Fischer was one of the very few lawyers working in the field of human rights and social law in the Netherlands. At a meeting of this tiny group under the auspices of the Dutch chapter of the International Commission of Jurists, they shared ideas and frustrations.23 ‘This is very hard work, with very little success and chance of making money’, as one lawyer put it. The other complained about the fact that up-todate information on relevant international human rights law was so difficult to come by. One striking element was how the lawyers generally did not frame their claims to social rights as such, but rather relied on the ECHR-rights, or fields of law other than international public law, to pursue these claims. Many of the cases on the right to shelter for undocumented migrants put to the courts by the Fischer firm, for instance, were framed as a violation of art. 8 ECHR, the right to private and family life. Basing their argument on Cosic v Croatia and Stankova v Slovakia they argued that someone out in the streets cannot effectively enjoy these rights.24 In April 2010, for instance, the Utrecht District 23 24

NJCM meeting, Utrecht, 22 September 2010. Case 28261/06, Cosic v Croatia [2009] ECHR and case 7205/02, Stankova v Slovakia [2007] ECHR.

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Court ruled that evicting a mother with a young asthmatic and epileptic daughter violated art. 8 ECHR, in combination with arts. 17 and 31 of the European Social Charter, the CRC and CEDAW.25 Another, even more creative approach was taken by lawyer Pulles, also present at the meeting. Confronted with a 27-year-old Angolan client, put out on the streets with her three young children, he initially based an administrative case upon the European Social Charter and the ECHR. These were, however, quickly rejected. In an article in the main Dutch weekly legal periodical, he described how the erratic Dutch case law, when it came to direct application of the Convention on the Rights of the Child, also had offered little hope in these cases (Pulles 2011: 173). Instead, he opted to start a case in tort, a civil complaint, against the Dutch government. Evicting a mother with very young children, two of whom had health problems, the Hague Appeals Court ruled, was negligent.26 The State had an obligation to provide adequate shelter and care for the children, and could only evict them from the detainment centre if it provided care, housing, health care and schooling in another manner. Putting children out onto the streets, the court stated, is simply ‘inhumane’. Whilst hailed as a big success, the ruling also gave reason for concern amongst the lawyers. If the court so explicitly only recognized the right to shelter of the children, would that not provide an excuse to the government to separate the mother from her children? One lawyer spoke about a case with an undocumented mother in Haarlem who had been evicted, where the municipality called the Youth Protection Officers for the children and had advised the mother to report to the police on her own. He described someone in his firm physically preventing Youth Protection Officers separating the mother from her children, saying ‘over my dead body’. In the months after the ruling in the Hague the Youth Protection Offices did indeed receive an instruction to separate mothers from children in cases like this. It was only after the Hague Appeals Court, in the same Angolan case, ruled that the State had to respect the right to family life of the children, and their best interests, that this trend was – temporarily – stopped. In a comparable case, the Central Appeals Tribunal, as an administrative court which had long denied the right to shelter, ruled in May 2011 that a nine-year-old boy from Ghana, who was threatened with eviction, had the right to shelter 25 26

Utrecht District Court, 6 April 2010, LJN: BM0846. The Hague Appeals Court, 27 July 2010, LJN: BN2164.

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together with his mother. The legal ground, again, was not the right to shelter but art. 8 ECHR and the notion of a vulnerable person being denied the very essence of art. 8 ECHR: human dignity and human freedom.27 All these cases were hailed by human rights lawyers and NGOs as big successes, but also as very small steps forward. The fact that these steps were taken at all was partly due to the creativity of the lawyers, but perhaps even more to the concerted NGO efforts that surrounded them. The NGOs Behind the legal cases under the heading ‘No child put out onto the streets’ lay a strong and very active lobby, largely set up and carried out by Defence for Children, an NGO funded by the national lottery, the foundation ‘Stamps for Children’ and the Ministries of Social and of Foreign Affairs. At a seminar on the rights of undocumented migrants, the young blonde lawyer C. van Os explained how this campaign had been set up. In designing it, the NGO could make use of the experience gained in a number of earlier children’s rights campaigns. One of these was the wider campaign ‘No child is illegal’, on the rights of undocumented migrant children.28 A more targeted campaign concerned the rights of refugee children with a parent accused of international crimes: ‘Wrong children do not exist.’ The fact that the legal status of these children was linked to the insecure administrative status of the parent caused great uncertainty. After intensive lobbying and a great deal of media attention, the government agreed to give these children residence status, irrespective of their parents’ position, although only if they’d been in the Netherlands for ten years.29 The campaign ‘No child put out onto the streets’ was essentially built up around the case to be put to the European Social Committee in 2008. A coalition of experts prepared the case itself. Children were asked to provide illustrations for a booklet that introduced the case, gave the visions of a number of experts on it, and contained stories like the ones quoted at the beginning of this chapter. The seventeen-year-old Kamil, for instance, recounted how he had slept in twenty-nine different places

27 29

Central Appeals Court, 30 May 2011, LJN: BQ6438. 28 www.ilegaalkind.nl. C. Speksnijder, ‘Oorlogsmisdadigers moeten het land uit, hun kinderen niet’ (War criminals have to leave the country, their children don’t), De Volkskrant, 10 June 2008.

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in the Netherlands: ‘In the asylum centre, they take all your stuff and put you exactly on the other side of the gate’ (Defence for Children 2008; Molin 2011). When the European Social Committee ruled that the Netherlands violated the right to shelter, the NGO coalition managed to generate a great deal of media attention for the decision.30 The response of the government to the ruling, as set out above, was that it was not binding.31 In addition, it stipulated that the Netherlands had made a reservation to the revised Charter, stating that it would only apply to persons legally resident in the country. Finally, the government put forward that leaving the country was primarily the responsibility of the parents. As a reaction to this, the NGO coalition successfully lobbied for a Committee of Ministers resolution, which was indeed adopted in July 2010.32 The announcement of this decision, again generated a great deal of media attention. One periodical, for instance, wrote: You’d imagine that, in a country where decency is a word in every mouth and everyone considers themselves to be a guide for the rest of the world, that a case like this would lead to severe embarrassment. The Ministry of Justice, however, responded to the slap by the Council of Europe as if it had received a petition from the Dutch Association of Vegans against growing beef tomatoes. Of course, it’s unconvenient, we’ll have a look at it, but our policies will remain the same.33

Added to this media attention was a large public campaign, in which activists all over the country sat in bus stops the whole day and had people sign a petition. Slowly, as a result of all this attention for the issue, a number of municipalities started to give way, as did the judges described above and child protection officers. In addition, the parliamentarians who received the petition, and were well placed to bring about structural changes in policies, started to express concern about the children put out on the streets.

30

31

32

33

See ‘Nederland moet illegale gezinnen opvangen’ (The Netherlands has to provide shelter to illegal families), 16 March 2010; ‘14 gezinnen met asielzoekers op straat’ (14 families with refugees out on the streets), NRC Handelsblad, 25 March 2010. House of Representatives, Answers of the Minister of Justice to questions raised by H. Spekman on a decision by the European Social Committee, 25 March 2010. Resolution CM/ResChS (2010) on Collective Complaint 47/2008 by Defence for Children International (DCI) against the Netherlands. Editorial, Vrij Nederland, 24 July 2010.

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The parliamentarians At the final campaign demonstration, conducted under the slogan ‘If they’re out in the streets, we’re out in the streets’, a number of parliamentarians accepted the petition signed by people throughout the Netherlands. They sat in on a debate on these issues, listened to one child’s story and joined in the race ‘putting up a tent’. This was not the first time that parliamentarians had expressed interest in the case: one parliamentarian had immediately asked questions about the ESC ruling once it came out.34 Of course, this was the result of an active NGO lobby, and only led to the dismissive governmental response discussed above. The issue, however, was subsequently picked up by parliamentarian Spekman, a social-democrat with the nickname ‘Social Rambo’ who, as a municipal elderman in Utrecht, worked so hard on combating poverty that the city was labelled the most socially aware city in the Netherlands.35 Supported by the NGO coalition, he took the formal initiative for a policy memorandum titled ‘Shelter for Children: Always’.36 The memorandum sought to find a structural solution for what was called one of the ‘largest shadow sides’ of Dutch immigration policies: children who had lived in the Netherlands for years, between hope and fear, in and out of shelter. The memorandum sketched the situations in which the Dutch government actively put families with children out onto the streets. This happens if there is little chance of them obtaining asylum, if it concerns a second asylum application, and if they do not cooperate in their return (even if the reason is that return is simply not possible). The memorandum estimated that the Netherlands had about 30,000 undocumented children in 2010. It gave an overview of the NGOs and the churches involved in providing shelter to them. It also quoted extensively from the Defence for Children brochure described above in setting out children’s experiences out on the streets. In addition, it explicitly set out the international legal framework to be applied: the Convention on the Rights of the Child, the EHCR, the EU Charter of Fundamental Rights, and the European Social Charter.

34

35

36

House of Representatives, questions raised by H. Spekman on a decision by the European Social Committee, 15 March 2010. D. Stokmans, ‘Ik vind niet iedereen zielig; interview H. Spekman’ (I don’t feel sorry for everyone: interview H. Spekman), NRC Handelsblad, 5 February 2011. House of Representatives, Altijd onderdak voor kinderen (Shelter for Children: Always), 32566–2, 1 December 2010.

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The memorandum recognized the importance of stringent asylum policies, but came up with six specific proposals to mitigate the effects for children. First, that the point of departure should be that children should not be put out onto the streets, and should have the right to shelter, food, clothing and education. Second, that municipalities, because of their due diligence obligations, had to ‘proudly’ provide emergency care, and that the government should financially support this. Third, families would have to be placed in special accommodation, and coached towards going back to their country of origin. Fourth, families with children applying for asylum had to have the right to stay in the asylum centres for the entire period of their application. In addition, municipalities should also be allowed to provide shelter to ex-asylum-seekers who made an additional application (on humanitarian or medical grounds, or family life). A final recommendation was to shorten the asylum application procedure. These measures, the memorandum argued, would not cost too much money and result in policies that explicitly had regard to the best interests of the child as a point of departure. The parliamentary commission on Immigration and Asylum put the memorandum to the Council of State, as the main advisor on legislative proposals. More specifically, it had a number of legal questions: did the memorandum give a complete overview of international human rights law in this respect? What was the added value of art. 24 of the EU Charter on Fundamental Rights? How should one interpret the Committee of Minister’s resolution? Do children’s rights also apply in an asylum context? What responsibilities for parents arise from international treaties? How does the right to family life relate to the rights of the child? Is it allowed to violate the right to family life if parents frustrate return? Would shortening the asylum procedure still allow for effective remedies?37 The Council of State started its reply by stating that it was not its place to take over the work of, amongst others, parliament, presumably in looking into the constitutionality of policy proposals. It felt, for instance, that answering the question on the applicable human rights law was beyond its mandate as set out in the law of the Council of State. Instead of setting out the whole range of applicable human rights law in this respect, it only made a brief remark: ‘Generally speaking, a claim to 37

Ibid., 32566-3, Letter of the Commission on Immigration and Asylum, 32566-3, 13 January 2011.

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state support in national law, and to certain fundamental freedoms like the freedom of movement or social benefits’ is reserved to legally residing aliens in international law.’38 As an answer to a question on the applicability of human rights law it is, one could argue, rather peculiar not to say anything about universal rights and only concentrate on the rights of legally residing aliens. The Council did have time to extensively answer the question on the ESC and to conclude that a right to shelter for children cannot be considered a subjective right, and that countries – under the ESC – have the policy freedom to decide on this. In drawing this conclusion, other human rights provisions such as those in the ICESCR and the CRC were not considered. The Council of the State explicitly chose not to discuss a number of relevant human rights provisions, and – having omitted to answer the questions on them – took a position that largely endorsed the government’s reluctance to provide shelter to undocumented children. Although the answers given could well have been contested from a human rights point of view, the parliamentarians who had asked the questions were clearly not familiar enough with international human rights law to explicate the violations of this law through the Dutch policy of putting these children out onto the streets, and did not respond to, or debate, the Council of State’s response. The municipalities An interesting role in the partial implementation of the right to shelter for undocumented children was played by the municipalites. The lawyers very carefully picked the municipalities in which to litigate their cases for their progressive courts and policies. After the rulings in cities like Utrecht, The Hague and Leeuwarden, the municipality immediately went on to provide emergency shelter. The parliamentary policy proposal also explicitly sought to carve out space for municipalities seeking to deviate from the stringent national policies towards a more humane and rights-based approach. This seemed to be in line with a wider trend in which municipalities assumed a greater responsibility for rights realization. Internationally, over the past decade, the mutually strengthening relationship between human rights and urban policies has developed significantly. At the UN level, the United Cities and Local Governments initiative and its European counterpart have passed a charter to rights in the city, 38

Ibid., 32566-4, Advice of the Council of State, 32566-4, 9 June 2011.

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emphasizing how ‘the local community is united by an obligation to mutual solidarity which is supported by the local authorities’ (European Coalition of Cities against Racism, 2004). Within the Council of Europe, the Congress of Local and Regional Authorities passed a resolution on the role of local authorities in implementing human rights in 2010, and decided that the local democracy week in 2011 would revolve around the theme of human rights.39 Here, there is a specific emphasis on developing indicators for the measurement of human rights at the local level, for instance in fields like political participation, access to justice, the right to education, the right to work, the right to health, the right to social welfare and the right to housing (European Coalition of Cities against Racism 2004). At the EU level, where the adoption of the Charter of Fundamental Rights as part of the Lisbon Treaty has greatly enhanced attention to human rights, the Joined-up Governance Project explicitly addresses the role of cities in a multi-level system of human rights protection.40 In the Netherlands, there have also been signs of an emerging interest in human rights as a basis for social policies. The city of Utrecht, in which Spekman was an alderman, for instance, became part of the EU Joined-up Governance Project and adopted a policy memorandum titled ‘Human rights in Utrecht – An urban quest for social justice’. In it, policies in the field of anti-discrimination, poverty reduction, immigrants, domestic violence, shelter, human trafficking, policies concerning the use of cameras, human rights education and health care are explicitly measured against international obligations. Similarly, the local democracy week held in October 2011 had ‘human rights’ as its central theme and sparked interest from a number of Dutch cities. Rotterdam is the Dutch member of the European Cities against Racism network. Initiatives like the Coalition for Inclusion explicitly call on local governments to realize international human rights (in this case concerning people with disabilities) and to call on the national government to ratify the Conventions concerned.41 Additionally, there 39

40 41

Congress Resolution 296 (2010) holds that the ‘most important way to enable local and regional authorities to take responsibility for human rights is through the systematic training of political leaders and the dissemination of reliable information among citizens about their rights (particularly among vulnerable groups)’. See the work of the CoE Commissioner on Human Rights Hammarberg. http://fra.europa.eu/fraWebsite/research/projects/proj_joinedupgov_en.htm On 7 November 2011, for instance, the Middelburg municipal council passed a motion urging the municipal government to call for the ratification of the UN Convention on the Rights of Persons with Disabilities.

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are Dutch cities like Almelo that use human rights as inspiration for their policies, but do not explicitly refer to them in policy documents. It was municipalities like these that chose to deviate from national policies, and found support in international human rights law for doing so. CONCLUSION

By 2012, the provision of shelter to undocumented migrant children and their families in the Netherlands was patchy and piecemeal. Nevertheless, there were some municipalities providing such shelter, and a number of court decisions pointing out that this was, indeed, a state responsibility. An interesting aspect is that these decisions were not based on the most obvious legal foundation, i.e. the relevant provisions in the ICESCR and the CRC. This chapter has discussed how these provisions have, from the start, been denied direct effect in the Netherlands, thus giving them very little value in litigating social rights. Since ratification of the ICESCR in 1978, the relationship between the executive and the judiciary on these issues has resembled a virtual chicken-and-egg situation, in which government states that it is up to the judiciary to ultimately decide on the direct applicability of specific social rights, and the judges refer back to the 1978 governmental memorandum on the Covenant to deny these rights this direct effect. In the meantime, parliament seems to lack the knowledge of the Covenant to invoke it as a yardstick in important policy discussions on housing, education or health. In the meantime, the direct effect of rights like the right to shelter, education and health has been recognized within international law and other domestic dispensations, often on the basis of Dutch scholarship. This has also made possible the formulation of an Optional Protocol to the ICESCR, which allows for individual complaints to be put to the CESCR. Much to many an observer’s surprise, the Netherlands was one of the first countries to sign this protocol. This was largely due to a very strategic NGO-lobby, in which the element of human rights exportism was strongly underlined: signing the Protocol was necessary to achieve Dutch foreign policy objectives and to point out the importance of these rights in countries in the global South. There were apparently hesitations within the cabinet. These were partially due to the tensions between the ICESCR and aspects of Dutch social policy, like the 164

CONCLUSION

Benefits Entitlement Act that denies a number of basic social rights to undocumented migrants. Another reason was the fear that the CESCR would turn out to be a fourth judicial layer, of which there was ‘no indication of the quality’. It was against this background that lawyers seeking to litigate for social rights often came up with alternative, creative legal strategies. In the case of ‘No children out onto the streets’, for instance, some lawyers based their argumentation on the right to family life in the ECHR. Another lawyer was successful in a torts case, stating that the Dutch government was negligent in not abiding by its human rights obligations, and that it simply acted ‘inhumanely’. They also made use of international public law by taking the case to Strasbourg, soliciting a decision by the European Social Committee and subsequently raising that decision in domestic cases. This was successful, even if the government denied the binding character of the decision, and was supported in doing so by the Council of State. A main reason for that success was the wide-ranging coalition that had been built around the court case. Defence for Children, and other NGOs, involved scholars, children, policy-makers, municipalities, parliamentarians, the public at large and – perhaps most importantly – the media in raising concern about children put out onto the streets in the Netherlands. This is in line with the scholarship that emphasizes the human rights spiral, the importance of coalitions in implementing rights and the importance of human rights cities. Looking at the other side of the human rights implementation, the next chapter will discuss the way in which the government itself seeks to invoke certain rights to attain its particular policy objectives. .

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THE RIGHTS OF THE REFORMED

‘Why is it that the CEDAW criticism of us refusing to allow women on the ballot list is immediately picked up in the Netherlands, whilst other concerns, like those on euthanasia, are not?’, the political leader of the Reformed Political Party (Staatkundig Gereformeerde Partij, SGP) openly wondered during an interview in 2009.1 ‘And why is it that our position on refusing openly gay teachers to work in Reformed schools immediately leads to an infringement letter from the Eurocommissioner, whereas Poland never gets such a letter?’ ‘It is all politics’, he sighed wistfully. It is the politics of these issues that is discussed in this chapter. Whilst the previous chapter emphasized bottom-up human rights implementation, this chapter concentrates on the way in which the government, and the various fractions within it, formulate, invoke and disregard international human rights in strengthening domestic policy preferences. The case to be discussed is that of the right of orthodox Protestant communities in the Netherlands to discriminate against women and homosexuals. In rejecting equal rights for women as ‘revolutionary, and against woman’s destiny’ and considering homosexual acts a sin, this group of approximately 250,000 people strongly diverges from mainstream opinion in a largely secular and tolerant country (SGP 2006). The Reformed communities, largely situated in the country’s Bible belt, with their own political party, newspaper, dress, resolve to visit church 1

Interview with B. van der Vlies, SGP leader (Reformed Political Party) in parliament, 15 June 2009.

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at least twice on Sunday and to live by the seventeenth-century State Bible are increasingly considered an incongruity, and also feel as such themselves. At the same time, the constitutional protection of their religious and educational freedoms is deeply entrenched, and has a long and hard-fought history. In discussing how various fractions within government seek to invoke international human rights to either safe-guard or question the domestic legal protection of this group’s ‘right to be different’, this chapter draws on theories of constitutional pluralism and the interaction between different normative orders as set out in the introduction to this book (Van Bogdandy 2008; Walker 2002). Far from being separate entities, these orders should be considered as mutually constitutive, and it is interesting to consider the dialectical manner in which the domestic legal system seeks to subvert, resist or evade the international legal order (Roudometof 2005: 113–35). In addition, a vocal player in the international field like the Netherlands can also be successful at influencing the contents of international human rights treaties, and thus not only stimulating certain rights worldwide, but also locking in domestic policy preferences (Keohane, Moravcsik and Slaughter 2000: 457–88; Simmons 2009). In focusing on this element of the ‘two-level playing field’, it is important to underline how the government is not a monolithic entity, but consists of different ministers and departments, whose policy preferences can radically change with each election (Putnam 1988: 427–60). The current chapter will first introduce this particular religious minority, its special place within Dutch society and the way in which developments like secularization, emancipation and the rise of Islamophobia have impacted upon the orthodox Protestant. Subsequently, it will describe the legal protection, within both national and international law, of what essentially amounts to discrimination against women and homosexuals, and their contestation. Concerning women, the legal discussion over time has been whether the Dutch State should not take measures against the Reformed Political Party’s principled refusal to include women on the ballot list. In the field of gay rights, the legal discussion revolves around the ‘sole ground clause’, an exemption of the prohibition of discrimination on the grounds of sexual orientation for publicly funded religious schools. After setting out these legal considerations, the chapter focuses on the way in which various government fractions have, over time, sought to formulate, invoke or explicitly disregard international law to strengthen their political position on these issues. 167

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A SPECIAL GROUP

The Bible belt runs throughout the Netherlands, and strings together communities in which many people go to church at least twice on Sundays, with the women wearing hats, long skirts and black stockings, and the men in black suits. The nearly half a million Reformed church members in the Netherlands largely encompass two different groups: the more worldly orthodox gereformeerden and the more fundamentalist bevindelijk gereformeerden who emphasize religious experience. The focus here will be on the last group of approximately 250,000 people. Its largest church, the Gereformeerde Gemeente (GG, the Reformed), has 100.000 members (Knevel 2009). All Reformed churches have their roots in the sixteenth century and were inspired by Luther and – mainly – Calvin. Over a century of religious fights culminated in the 1618–19 Synod of Dort, in which the Reformed doctrine was set out, and an official Bible translation – still in use today – was agreed upon. As said, the bevindelijk Reformed can be considered the most fundamentalist, and have even been labelled the ‘Taliban on clogs’ (Ten Napel 2002: 151–7). Basing their lives strongly, and only, on the seventeenth century State Bible, they put the emphasis on religious experience as a sign of being chosen by the Lord. They go to church twice on Sundays, strongly emphasize the importance of marriage, value large families and frown upon women working. With their own newspaper (Reformatorisch Dagblad), periodical (De Saambinder), webservice (Refoweb), sports clubs (with no games on Sunday), holiday destinations and social clubs, the Reformed generally have little contact with the outside world. Watching television is not allowed, meaning that virtually all Reformed receive the same, selected news. Most bevindelijk Reformed vote for the SGP, the Reformed Political Party. Even if the party, which has two seats in parliament, has stopped advocating a theocracy, it still firmly bases its political viewpoints on the Bible and a rejection of general enlightenment theory. The reason that it was founded in 1918, as the oldest political party still in existence in the Netherlands, was in protest against the support for universal suffrage by the main Protestant party at the time. This was deemed in contravention of I Corinthians 14:34 ‘Let your women be silent in the assemblies, for it is not permitted to them to speak; but to be in subjection, as the law also says.’ Even if Reformed women have, largely for electoral reasons, been granted the right to vote over the past century and have even recently been allowed to become members of the party, they are 168

A SPECIAL GROUP

still denied passive voting rights (Oomen 2011: 175–200; SGP 2006). Whilst the subject is debated as much inside as outside of the party, 64% of the people who vote SGP feel that this should remain the case, stating things like ‘Virtually all women in the SGP have no problem with its position on women, and I’m one of them. Why? Because of the Lord, who has made man, heaven and earth.’2 A key institution in passing on and strengthening community values and identity are the Reformed schools. Here, a key Bible quote is Proverbs 22:6: ‘Train up a child in the way he should go; even when he is old he will not depart from it.’ Parents strongly adhere to a Reformed education. ‘You hope that their education and religious formation turns them into adults that are so strong in their faith that they stick with it even in meeting people with different beliefs.’3 The right to have religious schools funded by the State on an equal basis with public schools was fought over in the main constitutional battle in Dutch history; the ‘School Struggle’ of the nineteenth century. It was concluded in 1917, in an historic exchange in which social democrats agreed to have this right laid down in the Constitution, in exchange for universal suffrage. The existence of these schools, and their public funding, fit within the system of inclusive neutrality that long characterized Dutch relationships between Church and State. The 1917 tradeoff also laid the foundations for the system of ‘pillarization’ discussed in chapter 3, which entailed the various social and religious groups (Protestant, Social-Democrat, Catholic) having their own churches, newspapers, sports clubs and broadcasting corporations, and very little contact with one another (Kennedy 1995). These groups found one another in a ‘politics of accommodation’, in which the elites of the groups concerned made arrangements to ensure pluralism (Lijphart 1989: 139–53). Legally, this political culture translated into an inclusive neutrality, in which all religions could count on equal state support and, to give one example, soldiers or prisoners could turn to a priest, a rabbi, an imam or a humanist counsellor on an equal basis (Van den Burg 2009). 2

3

Here, there was barely any difference between men and women, various denominations and age groups. The data in this chapter, and the quotations are, unless otherwise mentioned, all derived from a survey conducted in 2009. It was announced via the main orthodox Reformed newspapers Nederlands Dagblad and Reformatorisch Dagblad, with a valid response of N = 5898. The group interviewed is representative of the population concerned in terms of frequency of church visits, region in the Netherlands and age. The group concerned consisted of 58% men and 41% women. C. Jobse, www.pzc.nl/specials/gereformeerden.

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Earlier chapters have discussed how, over the past decades, the Netherlands has become more and more secular and emancipated, causing most pillars to crumble away (Van de Donk et al. 2006). In addition, the upsurge of Islamophobia that characterized the Netherlands post-9/11 and after the murder of Pim Fortuyn and Theo van Gogh led to less room in the public space for religion. ‘There is a trend to curtail the influence of religion in the public sphere, and to establish a strict separation between the public and the private sphere’ (Vereniging Gereformeerd Schoolonderwijs 2008). This is acutely felt by the Reformed in the Netherlands, of whom 53% strongly agreed, and 34% agreed with the statement ‘the space for Christians in society has diminished’. As one respondent said ‘A true democracy depends on the acceptance of minorities. As a Christian I feel that there is less room to even speak about my faith, and less understanding of it. I consider this to be a sad development.’ A woman indicated ‘You are insulted in the streets when you wear a hat. It seems to me that the less people know of our lifestyle, the less they understand it.’ Another reformed wrote ‘People think that we’ve come out of a time-machine, but we actually do want to take part in this society.’ One of the most obvious tensions between the minority world-view and that of the secular majority concerned the position on homosexuality. In the words of the leader of a Christian gay rights organization: ‘Acceptance of homosexuality seems to have become a marker that sets western society apart from Islam. If you want to be in favour of a Dutch identity, and western values, you have to be in favour of homosexuality because that is considered a core value. This has come to play a central role in debates on Islam . . . a real Dutch person accepts homosexuality.’4 The Netherlands, as is clear, has a long-standing reputation of gay tolerance, making it the country in the EU with the highest acceptance of homosexuality (Danish Institute for Human Rights 2009).5 Whilst the Reformed attitudes clearly diverge from the mainstream, there are strong differences within them. For one, all Reformed adherents make a distinction between having homosexual feelings and actually doing something with them (praxis). Nevertheless, there are large differences between the ten Reformed churches. There are 4 5

Interview with I. Veldhuizen, 23 June 2009. Danish Institute for Human Rights, The Social Situation Concerning Homophobia and Discrimination on Grounds of Sexual Orientation in the Netherlands (Copenhague: DIHR, 2009); FRA, Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States, Part II: The Social Situation (Vienna: European Union Agency for Fundamental Rights, 2009).

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churches (GKV, GB, NHK)6 which allow for the possibility of blessing same-sex partnerships. Out of the members of the GKV church, for instance, 18% accept both homosexual feelings and actual physical relationships, whereas 44% accept the feelings and 32% do not. A number of churches in the middle of the spectrum have opened up discussions on this issue within the past decade. The more fundamentalist bevindelijk Reformed, however, still have strong difficulties with the issue. Within the Gereformeerde Gemeente only 4% accept feelings and praxis, whilst 24% accept feelings and 70% reject homosexuality altogether. Within the even more conservative churches this rejection is higher still. This variety in perspectives became clear in the survey research and the interviews. Some respondents were empathically clear in their denunciation of homosexuality. ‘We have become a loose nation in which everything goes. Homosexuality is unnatural and disgusting! It conflicts with God’s law and his intention with our lives! Devilish and destructive for church and society.’ Others were milder: ‘In discussing homosexuality I assume that it is about practising it. I reject this. But I do approach homosexual people respectfully, and in a friendly and understanding manner based on my belief.’ Around the turn of the millennium, a number of Reformed gay rights organizations had emerged representing a wide spectrum of opinions. Refoanders works with the bevindelijk Reformed churches. Its chairperson grew up in the Gereformeerde Gemeente and has homosexual feelings but opts for his marriage and family. The organization rejects practising homosexuality but works on stimulating discussion on the feelings, both via the internet and in ‘living room discussions’. They have entered into dialogue with the more fundamentalist Reformed churches: ‘There, you sit amidst the black suits in an atmosphere of utter seriousness. The triangle family-school-church is so important to them, and they are scared that all kinds of ideas will come in via the schools. Whilst their main concern is how to safeguard their biblical vision and bar homosexual teachers, there is more and more space for discussions on how to help youngsters struggling with these feelings.’7 An evangelical gay rights organization that rejects homosexual praxis is called Different, and explicitly places the Christian identity above homosexual feelings. ‘Our most important task is to support people with homosexual feelings in 6

7

Gereformeerde Kerk Vrijgcmaakt (GKV, Freed Reformed Church), Gereformeerde Bond (GB, Reformed Union), Nederlandse Hcrvormde Kerk (NHK, Dutch Reformed Church) Interview with J. Quist, chair Refoanders, 23 June 2009.

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following Jesus. It’s not about healing, that would imply that you’re ill. However, as a Christian, your main identity is in God.’8 The organization works together with Onze Weg (Our Way), an organization that has been accused of seeking to heal homosexuals, resulting in a withdrawal of its subsidy. An NGO that works mostly with reformed with an orthodox (‘lighter’) background is Contrario. It does not hold a specific standpoint on the admissibility of homosexual relationships because, according to chair Daverschot, the Bible is not clear on this either. ‘Our most important aim is to be open.’9 The tensions between the world-views of the secular majority and the religious minorities in the Netherlands played out in a variety of ways. In the 1990s, the passing of legislation on same-sex marriages and on euthanasia led to great concern in these minority circles. After the turn of the century, parliamentary debates focused on the right of a civil servant to refuse to marry a gay couple for religious reasons, but also on the admissibility of ritual slaughter, the banning of the religious veil and the prohibition of blasphemy. Whilst these latter discussions did not lead to changes in legislation immediately, the fact that they came up at all is an indication of how religion was increasingly considered, in the words of current Prime Minister Rutte, ‘something to practise behind the front door’.10 CONTESTED LEGAL SPACE

Within the slow shift from inclusive neutralism to secularism this particular set of minority rights also increasingly became subject to contestation. These contestations are directly related to the right to equal treatment, as worked out in treaties like CEDAW, the Constitution and equal treatment legislation. As discussed in Chapter 2, this right was only explicitly included in the Dutch Constitution in 1983, as part of a general constitutional overhaul. It became art. 1: ‘All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall 8 9 10

Interview with R. Oostrum, chair Different, 6 July 2009. Interview with R. Daverschot, chair Contrario, 6 July 2009. H. Goslinga and C. van der Laan, ‘God en Allah horen achter de voordeur’ (God and Allah belong behind the front door), Trouw, 15 March 2008. The government that took up office in 2012 announced that it would get rid of the legal exemption for religious civil servants being excused from conducting gay marriages, and of the prohibition of blasphemy.

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not be permitted.’ In spite of a formal legal doctrine that holds all constitutional rights to be equally important, Art. 1 quickly ascended to the status of – in the words of reformed commentators – a ‘superright’.11 It was chiselled into the stone bench outside of parliament, hammered on the walls of many municipal buildings, made into a distinguishing feature of the so-called ‘Art. 1- schools’ and used as the name for the large equal treatment organization ‘Art. 1’. An important element of the implementation of the constitutional right to equal treatment was the passing of the Equal Treatment Act.12 It provided for the setting up of an Equal Treatment Commission, which could not make binding decisions but proved highly influential in the interpretation of equality legislation. How, now, did the rise of the right to equal treatment and its codification in national and international legislation clash with the freedoms of religion, education and association that had been fought over, and had protected the Dutch Reformed over the centuries? This section will first consider the legal battle over the passive voting rights for Reformed women, and subsequently the discussion concerning the degree to which Reformed schools could discriminate against openly homosexual teachers. Passive voting rights for Reformed women Following a lengthy internal discussion, the Reformed Political Party enshrined its opinion on passive voting rights for women in its 1989 founding document: ‘The notion of voting rights for women, which results from an revolutionary emancipatory ideal, goes against woman’s destiny. This obviously also applies to women taking up seats in political bodies, both representative and governmental bodies. A woman can, in line with her own conscience, decide if she can vote in taking into account the place that God gave her’ (SGP 2006). The explicitation of this biblical viewpoint not only led to continued internal discussion, but also to a number of court cases. Initially, these cases were framed on the basis of a violation of the right to non-discrimination (Post 2009). This legal strategy, however, proved to be unsuccessful: the Appeals Court in The Hague decided in 11

12

See J.W. Van Berkum, ‘Supergrondrecht bestaat niet’ (There is no super-right), Reformatorisch Dagblad, 19 July 2007; B. J. Van der Vlies and Menno De Bruyne, ‘Christendom mag er zijn in de grondwet’ (Christianity has its place in the Constitution), Nederlands Dagblad, 5 April 2006. The General Equal Treatment Act of 2 March 1994.

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1995 that the SGP discriminated against women, but that the manner in which this took place did not constitute a crime.13 The same plaintiff found her case considered inadmissible by the Equal Treatment Commission, because the relevant legislation did not cover the position of parliamentarians.14 A complaint by a Reformed woman that she could not join the SGP was also considered inadmissible, because it concerned the internal law of associations.15 Finally, a case lodged by dozens of NGOs in 2005 was unsuccesful because the parties were deemed not to represent the interests of the women who wanted to join the party.16 A case, however, that was considered admissible was a torts claim against the Dutch State. This claim, lodged by a number of NGOs working in the field of women’s rights, held that by not taking measures against the SGP the State of the Netherlands violated its obligations under art. 7 CEDAW, ratified in 1991. These obligations include taking appropriate measures to ensure to women the right ‘to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies’ (7a) and ‘to participate in non-governmental organizations and associations concerned with the public and political life of the country’ (7c). The case made its way through the entire Dutch legal system, and is currently under review by the ECHR. Initially, the Hague District Court put the plaintiffs in the right, and even ordained that the Dutch State withdrew its subsidy to the SGP.17 This had the direct result that the SGP opened up membership to women (Post 2009). At the same time, however, it reiterated how ‘If we consider the whole of scripture . . . we have to conclude that the Bible reserves the act of government to men’ (Post 2009). This decision led to two appeal cases, with wholly different outcomes. In an administrative appeal concerning the termination of the subsidy, the highest Dutch administrative court held that, in the balance of constitutional rights to be guaranteed here, a party whose viewpoints substantially differed from mainstream opinions still had the right to partake in political debates.18 Subsidy cuts would strongly prejudice the SGP, and were therefore not allowed. In the same month, however, the 13 14 15 16 17 18

The Hague Appeals Court, 30 November 1995, NJ 1996/324. Equal Treatment Commission, 94–17, 30 December 1994. Equal Treatment Commission, 01–150, 21 December 2001. The Hague District Court, 7 September 2005, NJ 2005/474. The Hague District Court, 7 September 2005, NJ 2005/473. Administrative Bench of the Council of State, 5 December 2007, LJN: BB9493, 200609224/1.

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Hague Appeals Court largely affirmed the decision in the torts case, ruling that, whereas the SGP position could be considered a clash between the freedom of religion and the right to equal treatment, it violated the core of the latter right, but not that of the former.19 Whereas the Appeals Court ruled that the State had to take measures, it refrained from indicating what these measures should be. With two conflicting decisions on the table, the Supreme Court ruled on the issue in April 2010.20 It, too, considered the central issue to be a clash of fundamental rights: the right to equal treatment and the freedoms of religion, expression and association. On the issue of voting rights, it held that the right to equal treatment prevailed over the other fundamental rights at stake, thus obliging the Dutch State to take measures to effectively realize passive voting rights for women. In explicitly granting direct applicability to arts. 7a and 7c CEDAW, the Court stipulated that the Dutch State had no policy freedom in these matters, but had to take an effective measure that, however, infringed the fundamental freedoms of the SGP as little as possible. What such a measure would be, the Supreme Court stated, was not up to it, but up to the government to decide. After the decision, the SGP announced that it would put the issue to the ECtHR. Whilst awaiting its ruling, the government, for reasons to be discussed under the section on the politics of these processes, decided to refrain from taking effective measures. In a letter to parliament the Minister of the Interior wrote that he had asked the SGP whether it imposed any formal legal obstacles to women exercising their voting rights, but that this was not the case. Any measures to be taken, he stated, would need ‘care’ and ‘sufficient preparation time’, and could thus best be taken after Strasbourg had ruled on this issue. In spite of a number of parliamentary motions stipulating that the SGP website pointed to a legal obstacle by indicating that party members had to adhere to the founding principles of the party, and that – from a legal viewpoint – a pending ECtHR case could not and should not adjourn decision-making, the government refrained from taking action. Gay teachers in reformed schools An equally lengthy and political debate, that also commenced with the introduction of equal treatment legislation in the 1990s, concerned the 19 20

The Hague Appeals Court, 20 December 2007, NJ 2008/133. Supreme Court, 9 April 2010, LJN: BK4549, 08/01394.

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Reformed position on homosexuality, and more particularly, the degree to which publicly funded Reformed schools could refuse openly gay teachers. Thus the clash here concerns one between the right to equal treatment and the freedom of education. As the issue concerns employment in a public institution, relevant provisions are not only the general equal treatment clauses such as art. 1 of the Constitution, art. 2 and art. 26 ICCPR and art. 14 ECHR, but also EU legislation such as the Equal Treatment Directive of 2000.21 The freedom of education is laid down not only in art. 13(3) of the ICESCR but also in the ECHR, which protects the ‘right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’.22 In the Netherlands, as was discussed before, art. 23 of the Constitution contains the hard-fought outcome of decades of fighting over public funding for denominational schools. The provision guarantees schools the right to provide education according to religious or other beliefs/ideologies, even if the authorities have the right to supervise it (art. 23(2) and (5)). Private, religious schools are entitled to full funding from public funds, with respect for the ‘freedom of private schools to choose their teaching aids and appoint teachers as they see fit’ (art. 23(6)). This provision, which has not been changed since 1917 – a clear indication of the sensitivity of the compromise it entails – has led to a long tradition of case law. In Maimonides, for instance, the court ruled that a Jewish school did have the right to refuse a pupil who was not deemed orthodox enough.23 The competing rights have led to a number of exceptions in equal treatment legislation, both at European and at national level. The EU Council Directive on equal treatment in employment and education, for instance, generally prohibits discrimination on the grounds of, amongst others, sexual orientation.24 Article 4(2), however, contains the following exception: Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches 21

22 23 24

Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Art. 2 1st Protocol ECHR. Supreme Court of the Netherlands, Maimonides, 22 January 1988, AB 1988. Arts. 1 and 2 Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation.

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and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

This provision, which was – as will be set out later – strongly influenced by Dutch politicians, thus carved out the right of, for instance, Reformed schools to discriminate on the basis of sexual orientation, provided that this concerned a ‘genuine, legitimate and justified’ occupational requirement. In a way, the provision was inspired by the infamous ‘sole-ground construction’ (enkele-feitconstructie) in the Dutch Equal Treatment Act. This Act prohibits discrimination in the field of employment and services, and – in contrast to the Constitution – explicitly names sexual orientation.25 This prohibition, however, does not apply to religious institutions. They, however, cannot discriminate on the sole ground of, for instance, sexual orientation. The provision 5(2) is phrased as follows: 2. Subsection 1 does not apply to: a. the freedom of an institution founded on religious or ideological principles to impose requirements which, having regard to the institution’s purpose, are necessary for the fulfilment of the duties attached to a post; such requirements may not lead to discrimination on the sole grounds of political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status; . . . c. the freedom of an educational establishment founded on religious or ideological principles to impose requirements on the occupancy of a post which, in view of the institution’s purpose, are necessary for it to live up to its founding principles; such requirements may not lead to 25

Art. 1 Equal Treatment Act of 2 March 1994.

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discrimination on the sole grounds of political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status.

This particular provision was a hard-fought compromise in the parliamentary discussion of the Equal Treatment Act in 1993. Here, it was already clear that the Reformed schools’ desire to be able to bar openly homosexual teachers could well be at odds with the proposed equal treatment legislation.26 As the responsible minister put it: Very specifically, what is at issue here is the question as to whether a homosexual teacher, who cannot be refused a job because of his homosexuality, can be refused because he has a relationship. Let me be very clear here: this is not allowed. The sole ground of sexual orientation covers feelings, practices and relationships. The homosexual teacher cannot be turned down because he has a relationship, even if he turns out to live together with someone.27

The parliamentary discussions on this Act were experienced as a defining moment by the Dutch Reformed, the Reformed Political Party representing them, and other Christian parties. This was mainly because another minister, openly gay herself, explicitly indicated that the Equal Treatment Act would prohibit an understanding of the scripture that forbade homosexual relationships: ‘Many churches, by now, have the theologically accepted stance that a homosexual relationship does not have to be at odds with the word of God. There are enough examples of individuals who suffer enormously. We do not want this to continue.’28 This statement was considered as ‘deeply distressing’ and ‘imposed state ideology’ by the Reformed. In the words of former Reformed Political Party parliamentarian Van den Berg, ‘One may conclude that there is apparently a majority opinion that, according to the government, is ripe to be laid down in law.’ At the general meeting of the Reformed Political Party, its leader referred to this discussion and the new law on euthanasia when he quoted the Apostle Paul on the suffering at the end of times. In a later interview, he still considered this parliamentary debate the absolute low point of his career. ‘The Minister told us that we had an understanding of the Bible which was not relevant to the societal debate, and declared it to be out of order.’29 26

27 28 29

Parliamentary proceedings 1992/1993 at 3412–71, 3501–33, 3567–605 and 3612–14. See parliamentary documents 22014. Parliamentary proceedings II, 1993, 47–3508, 47–3510. Parliamentary discussion on the Equal Treatment Act, 11 February 1993, 3592. Interview with B. van der Vlies, SGP leader in parliament, 9 June 2009.

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The sole-ground construction is a reflection of the painful compromise in this parliamentary debate, and would develop into a legal nightmare, and be subject to permanent societal debate. Whilst the law provided that religious schools could not discriminate on the sole grounds of a teacher’s sexual orientation, it was unclear on what grounds they could. Partaking in the Gay Pride Canal Parade? Kissing a lover in the schoolyard?30 Over the years, the Equal Treatment Commission ruled on these issues a number of times.31 In 1997, for instance, the De Rank primary school decided not to invite an applicant for an interview once it became clear that he lived with a man.32 Here, the Commission ruled that the man should have been invited, in order to have discussed whether his life-style was in fundamental conflict with the school’s vision. In 2007 it ruled that the Passion evangelical school could not write in its school guide that homosexuality was in violation of the school’s principles.33 The Commission, however, has not yet had the ability to rule on the dismissal of an openly homosexual teacher: in the controversy that arose in 2009 in the case of discrimination in the town of Emst, and again in a comparable case in 2011, the teacher concerned decided to withdraw the case. In the meantime, the sole-ground construction continued to be vehemently debated in parliament. In 2010, for instance, a parliamentary majority proposed to strike the sole-ground construction out of the Equal Treatment Act.34 Changes in legal consciousness on equal treatment and lack of legal clarity on the interpretation of provisions were given as a reason for this. The requirement implicit in the ETA, that teachers should fully adhere to the founding principles of a school, ‘is too large a violation of personal freedoms’. These days, the parliamentarians argued, perceptions of homosexuality are also debated in Reformed circles. In addition, they referred to European and international law. Even if the bill received a parliamentary majority it did not, for a variety of political reasons, lead to speedy governmental action. It was only in 2012 that the Conservative Liberals and the Social Democrats, after their election victory, announced that the sole-ground construction

30 32 33 34

The examples are taken from Strijkers, 2008: 128. 31 See www.cgb.nl. Equal Treatment Commission, 29 April 1999, ruling 1999–38. Equal Treatment Commission, 15 June 2007, ruling 2007–100. Bill 32 476 proposed by parliamentarians Van der Ham, Van Miltenburg, Klijnsma, Jasper van Dijk and Van Gent to amend the Equal Treatment Act and strike out the sole-ground construction, explanatory memorandum, no. 3, 7 September 2010.

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would be deleted from the ETA, to be replaced with European legislation. ‘Schools’, as the governmental agreement stated, ‘may not dismiss homosexual teachers or refuse homosexual pupils because of their sexual orientation. Schools shall also give education on sexual diversity.’35 NATIONAL–INTERNATIONAL INTERPLAYS

Just as is the case at the national level, the balance between the right to equal treatment and the fundamental freedoms of religion, association and education, are permanently negotiated and debated in international law. It is now time to focus on the political interplay between these two mutually constitutive orders and the way in which this shapes the room for the Dutch Reformed to differ from the mainstream in discriminating against women and homosexuals. Far from the textbook legal rendition in which international law is formulated within various international organizations to automatically become, in a monist country like the Netherlands, part of the domestic dispensation, the actual interplay between the national and the international is a much more murky business. There is a permanent to and fro in which domestic actors seek to lock in policy preferences and safeguard the domestic status quo, or – alternatively – ‘catalyse’ domestic change by joining the international legislative band. Previous chapters have described how the Netherlands, with its longstanding tradition of support for international law and its agile diplomats often exerts a larger influence at the international level than its size would have it, in a way that also influences domestic struggles (Reiding 2007). Putnam has famously described these processes as a two-level game. ‘At the national level, domestic groups pursue their interests by pressuring the government to adopt favourable policies, and politicians seek power by constructing coalitions among these groups. At the international level, national governments seek to maximize their own ability to satisfy domestic pressures, while minimizing the adverse consequences of foreign developments’ (Putnam 1988: 434). Here it is important to note the differences that exist between domestic groups, and within national governments: ministers of one political party, or civil servants from one department can easily see the international stakes as being very different from those from another party or department. This section 35

Bruggen slaan: Regeerakkoord VVD-PvdA (Building bridges: governmental agreement Liberal Democrats and Social Democrats), 29 October 2012, p. 18.

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focuses on the politics of the legal battles described in earlier sections, and the way in which they have been fought out by different actors at different levels. Strategically invoking CEDAW and the ECHR The case that, in the end, led the Supreme Court to decide that the Dutch State had to take effective measures against the Reformed Political Party was not only strongly driven by Dutch civil society, but also encouraged by invoking strategic support from international human rights monitoring bodies. The NGO coalition that initiated the torts case against the Dutch government, for instance, explicitly lobbied the CEDAW-committee. This led the committee to point out, in 2007, that ‘a political party continues to discriminate against women and exclude them from party posts, which is a violation of articles 1, 2 and 7 of the Convention. The Committee notes with concern that the State party has appealed a decision by the District Court of The Hague of September 2005, No. AU2088, which gave direct effect to article 7 of the Convention in national law and which held that the State’s funding, under the Political Parties (Funding) Act, of a political party that excludes women from membership was in violation of its obligations under the Convention.’ In 2010, the CEDAW Committee reiterated that the Netherlands should adopt measures against discrimination ‘including within the SGP political party’.36 In the context of the focus on government in this chapter, however, it is also interesting to consider to what extent the Dutch State strategically invoked and ignored international law and institutions in order to endorse its policy position, which, over the years, has largely been one of support to the SGP’s freedom of association and religion. The reasons for this support are manifold. The SGP might only have two out of 150 seats in parliament, but larger confessional parties like the CDA also have an interest in maintaining, for instance, the freedom of education. In addition, the experienced SGP parliamentarians, who have often been experts on constitutional issues, wield an influence far larger than their actual numbers. This was most definitely the case in the period 2010–12, when the minority government under Prime Minister Rutte explicitly came to rely on the party for a majority in both the House of 36

Concluding observations of the Committee on the Elimination of Discrimination against Women, CEDAW/C/NLD/CO/5 of 5 February 2010 and CEDAW/C/NLD/CO/4 of 2 February 2007.

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Representatives and the Senate. More importantly, an explanation for the governmental position could lie in the historic battle fought over these minority rights, and the history of pillarization. ‘Respect for minorities’, as the Prime Minister from 2002 to 2010 J. P. Balkenende often stated, ‘is the litmus test for a democracy.’ A first interesting example of how the government strategically invoked and ignored elements of international law lies in the ratification of CEDAW itself. Whereas the Netherlands had played a large role in formulating CEDAW and advocating its adoption in 1979, it would only be ratified in the Netherlands in 1991.37 The tension between art. 7, in which the State agreed to take appropriate measures to ensure political participation by women, and the SGP’s standpoint on the issue was apparent from the very start, causing the SGP to ask the government to make a reservation. This, the government stated, was not needed: the provision had to be considered in its relationship with the freedom of association by the ICCPR, which meant that the government would show strong restraint in implementing the provision, particularly where it concerned political parties.38 There was no need, the government reiterated to the Senate at the time, to change the law or set rules because of art. 7.39 In reporting to parliament on the CEDAW committee’s recommendations over the years the government explicitly distanced itself from the position taken by the Committee. In 2002, for instance, the Committee first pointed out the violation of art. 7 by the Netherlands. This led the national CEDAW rapporteur to emphasize that ‘the CEDAW conclusion has to be taken very seriously, as it hardly ever happens that the Committee finds a European state to directly violate a treaty provision’.40 Whilst the government regretted the SGP position, it emphasized that the Dutch legislator could give effect to art. 7 at its own discretion, and that current legislation was in line with the article. In 2010, it took up a similar position, holding that treaty provisions are formulated in such a general manner that they are not directly applicable, and that they grant the State policy freedom. Whether a treaty provision has direct effect, government wrote to parliament in 2010, is

37 38 39 40

See House of Representatives, Agreement on CEDAW, 1984–85, 18950–3, p. 4. House of Representatives, Agreement on CEDAW , 1986–87, 18950–6, p. 30. Senate, Agreement on CEDAW, 1990–1991–72a, p. 10. As quoted in House of Representatives, Governmental response to the 2nd national CEDAW report, December 2003, p. 42.

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ultimately to be decided by the judge.41 Interestingly enough, the report to Parliament failed to mention the fact that the Supreme Court had just ruled that art. 7 CEDAW had direct effect; stating that the recognition of the direct applicability of art. 7a CEDAW also necessitated direct applicability of 7c.42 Even if the government had ignored the CEDAW standpoint over the years, it suddenly fell back on international human rights law once the Supreme Court ruled that it had to take effective measures against the SGP: the Minister of the Interior indicated to parliament that he would await the ECtHR decision on the matter before deciding what measures to take.43 This was remarkable for a number of reasons: turning to the ECHR does not, in Dutch law, suspend the decision of the Supreme Court (Wyngaert 2006). Additionally, the position was taken up at a time when the Dutch government had just, from general support for the ECtHR, turned towards a more critical perspective of the Strasbourg court – a turn to be discussed in the next chapter (Terlouw and Gerards 2012). In a heated debate on the issue, parliamentarians accused the minister of putting himself above the law, and giving the ‘worst example conceivable’. The minister, however, had stated on the one hand that he had taken a measure by asking the SGP whether there were any formal legal obstacles in place, and on the other hand that he wanted to await the Strasbourg ruling before making any further decisions. The SGP representative, in the meantime, provided insight into the Reformed perspective when he recounted how he had discussed the debate with his wife in preparation. ‘She said: “Tell those people loud and clear, not in your civilized lawyer’s talk, that I feel that it is absurd and paternalistic that an organization like the Clara Wichmann Institute, which has nothing to do with the SGP, feels that it should stand up for our dignity. The many women who support the SGP are hurt by this. They feel that they are characterized as victims whilst they are perfectly able of handling the discussion themselves”’. He also pointed to a website with 40,000 signatures of people who felt that the decision endangered fundamental freedoms, and to critical legal literature on the case. In addition, he referred to a parliamentary debate ten years earlier, in which the state

41

42 43

House of Representatives, governmental response to the 5th national CEDAW report, July 2010, 30420–154, p. 6. Here one sees the same ‘to-and-fro’ as with the socio-economic rights described in the previous chapter. Supreme Court, 9 April 2010, LJN: BK4549, 08/01394, 4.4.2. House of Representatives, debate on the Supreme Court ruling on the SGP, 28481–15, 8 July 2011.

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secretary had said that ‘measures against political parties are only taken under totalitarian regimes’. Whereas the minister might have hoped that the case would end up on the large pile of backlogs in Strasbourg, the ECHR decided it rather swiftly. In 2012, it ruled that there was no violation of the Convention.44 In addition, it sternly pointed out that the Convention was designed to promote and maintain the ideals and values of a democratic society. As ‘the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe . . . very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention’.45 In all, it sided with the Dutch Supreme Court, stating that its ruling – that the Dutch State violated human rights in not taking effective measures against the SGP – also ‘flows naturally’ from the ECHR. It would still take a change of government before an agreement was made with the SGP. This agreement reflected Dutch consensual democracy at its best. The SGP would change its regulations to stipulate that a candidate’s sex could not play a role in determining whether the person was included on the ballot list. It would not, however, change its founding principles, which states: ‘The notion of voting rights for women, which results from an revolutionary emancipatory ideal, goes against woman’s destiny.’ As the party leadership stated in a press release: ‘Given the Supreme Court position we have no more formal means to keep women from being listed on the SGP ballot list. The internal conviction of party members will now be decisive.’46 In all, the discussion on women’s passive voting rights shows how the government, the party itself and NGOs actively sought to invoke international human rights law in order to strengthen their political position. Give-and-take on gay rights As discussed above, both the Dutch Equal Treatment Act and the EU Directive on equal treatment in employment and education contain a clause that allows schools, on certain grounds, to discriminate on the basis of sexual orientation. The grounds differ slightly between the two instruments. The Dutch Act, drawn up in 1993, allows schools to impose requirements which are necessary for the fulfilment of the duties 44 46

Case 58369/10, SGP v The Netherlands [2012] ECHR. 45 Ibid., 70–6. SGP party leadership, ‘SGP will change regulations’, 14 January 2013, www.sgp.nl.

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attached to a post, or for the institution to live up to its founding principles, provided that these requirements do not lead to discrimination on the sole grounds of, for instance, sexual orientation.47 The EU Directive of 2000, sets out how occupational requirements need to be genuine, legitimate and justified, having regard to the organization’s ethos.48 Yet, the formulation in the EU Directive was strongly meant to ‘lock in’ the Dutch protection of this particular minority position. The Netherlands stood at the cradle of EU anti-discrimination legislation: the amendment to the EU Treaty allowing for such legislation was passed in Maastricht, after years of intensive NGO-lobbying. One NGO, aligning over 250 migrant groups, had strong Anglo-Dutch influences, largely inspired by ideas and practices about anti-discrimination that were familiar in a British and Dutch context (Geddes 2004: 334–53). In the early stages of placing anti-discrimination on the EU policy agenda Dutch NGOs like the Dutch Office Against Racism took the lead, whilst the Dutch COC49 played an important role in the ILGA (International Gay and Lesbian Association) coalition that took the lead in consolidating the EU Treaty article into the Employment Directive (ibid.). Yet, in the final and heated negotiations to get the Directive adopted by the Council, the Dutch negotiators put the Dutch protection of religious minorities in this field on the negotiating table as an example to be followed and as a way to get religious politicians to agree with the – revolutionary – Directive.50 Both the Dutch and the EU provision are notoriously unclear, and reveal the political compromise behind them. The article in the Employment Directive has been dubbed ‘possibly the most opaque to be found on any statute book’, whereas the article in the Dutch Act has been considered a provision ‘over which any lawyer could break a leg’ (Strijkers 2008: 128). Its vagueness led the EU article to be invoked both by parties seeking to maintain and legally defend the Dutch status 47 48

49

50

Art. 5(2) Equal Treatment Act. Art. 4(2) EU Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Cultureel en Ontspanningscentrun (COC, Centre for Culture and Leisure), the largest Dutch organization advocating the right of lesbian women, gay men, bisexualsand transgenders. On the ferocity of the negotiations see K. Wood,‘Response to an article by Paul Valley putting the case for reasonable discrimination on religious grounds’, The Independent, 17 October 2000, 2; S. Bates, ‘Work of the devil: After leading the campaign for section 28, the rightwing Christian Institute is having a go at Europe’, The Guardian, 26 July 2000. The Dutch position was constructed on the basis of interviews with, among others, a senior civil servant on 14 July 2010.

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quo, and by parties attacking it. On the one hand Dutch politicians and NGOs lobbied strongly in Brussels for an infringement letter, which was sent to the Netherlands in the beginning of 2008.51 Even before the minister had actually received the letter, the chair of the COC published an op-ed in one of the main Dutch newspapers, arguing that ‘the Netherlands leaves too much space for discrimination of homosexuals and . . . the cabinet silences religious homosexuals’.52 Simultaneously, with media and – apparently – EU support, a parliamentarian proposed a motion to strike the sole-ground construction from the Equal Treatment Act. There was also a great deal of support for the infringement letter from Euro-parliamentarians, stating that the letter was a result of their ‘constant hammering’ on the issue and emphasizing that ‘it’s great that the European Commission issues this signal’ (Holzhacker 2009: 219–39). All this caused the Reformed parties to grumble that ‘It is curious how the Netherlands does pick up this fact, and not other international concerns.’53 In a group discussion with a religious organization one participant stated: ‘There is a strong COC lobby in Europe. You can rest assured that Poland does not get the letter that the Netherlands got. Mrs Buitenweg, of the Green Left, took this up with the Commissioner and pressurized him into sending that letter.’54 In spite of strong endorsement of this unpublished letter from certain political parties, the legal interpretation of what the Council had actually meant and the implications for the Netherlands differed strongly. The Equal Treatment Commission, for instance, wrote an advisory opinion in which it set out the strict test for this type of discrimination that it had developed, but concluded that there was a violation of the Directive because ‘the words “sole grounds” leave room for adducing additional facts and circumstances which still justify the difference of treatment’.55 The 51

52

53 54 55

European Commission, Reasoned opinion and letter of formal notice to the Netherlands, pursuant to Article 226 of the Treaty Establishing the European Community in connection with the incorrect transposition of Article 2(1), Article 2(2)(a), Article 2(2)(b) and Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. ‘Kamer wil opheldering Europese kritiek homobeleid’ (Parliament wants clarity on European critique on gay policies), De Volkskrant, 4 February 2008; F. van Dalen, ‘Homos hebben recht op een betere wet’ (Gays have the right to a better law), De Volkskrant, 27 February 2008. Interview with B. van der Vlies, SGP leader in parliament, 15 June 2009. Group discussion, VGS (Association of Reformed Schools), 1 July 2009. ETC, Advisory Opinion on the Letter of Formal Notice to the Netherlands from the European Commission in connection with the incorrect transposition of Directive 2000/78/EC, CGB advisory opinion 2008/02, March 2008.

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Council of State, on the other hand, asked by the government whether there was a way to comply with the EU Directive but also maintain the balance of rights in the ETA, concluded that there ‘are no indications that Dutch legal practice with regard to art. 5 ETA that contains the sole-ground construction is in violation of art. 4 of the EU Directive’.56 The same disagreement could be found amongst academics. Some scholars argued that the Dutch sole-ground construction was clearly at odds with the EU Directive and criticized the Council of State for ‘jumping to help out the cabinet to ignore European legislation’ instead of making Dutch law Euro-proof (Holzhacker 2009: 219–39). Others remarked that these thoughts came much too early, as there is not yet a binding interpretation of the Directive, and emphasized how the European Court of Justice, ‘given the sensitive nature of the topicmatter’ could well come up with an interpretation that leaves room for the Dutch sole-ground construction (Hendriks and Terlouw 2009: 1636–7). Even if, one scholar held, the court in Luxembourg were to strike down the Dutch provision, there would be a strong likelihood of this leading to legislative changes (ibid.). Why not forcefully defend the Dutch compromise instead of bending before the first wind from Brussels? Ireland does not do this with its abortion laws, nor Poland with its family laws, neither the Netherlands with its drug law. Another author argued that, with the coming about of the EU Charter of Fundamental Rights, the sole-ground construction could well be considered part of the Dutch constitutional identity to be respected by the European Union. The government’s reluctance to act caused some NGOs, parliamentarians and scholars in favour of such changes to engage the support of the international community again, for instance in explicitly approaching Council of Europe Human Rights Commissioner Thomas Hammarberg during his visit to the Netherlands. He expressed concern that ‘the government regards the arguments of the European Commission mainly as an exercise to clarify some wording in ETA’, whilst he believed that the concerns expressed were rather a matter of principle, and stated that the ETA was currently formulated and interpreted too broadly (Commissioner for Human Rights 2008). He recommended ‘removing the exemptions for associations based on religion or belief from GETA and abolishing the sole-

56

Council of State, Advice on the sole-ground construction, 18 May 2009, Parliamentary proceedings, 21017.

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ground construction’. As discussed above, the cabinet announced that it would to abolish the construction in 2012. CONCLUSION

This chapter set out to investigate the way in which the government strategically invokes and ignores international human rights law to lock in its policy preferences, by looking at the legal position of the orthodox Reformed with regard to discrimination of women and homosexuals. With constitutional codification of the right to equal treatment in 1983, the ratification of CEDAW in 1991 and the passing of European Equal Treatment Legislation, the historical privileges of this group were subject to more and more legal discussion. These discussions, of course, take place against the background of increased secularization and emancipation. In largely seeking to protect the minority rights concerned, the government – during the ratification of CEDAW – promised parliament that it would not act on art. 7, that demanded that the State ensure passive voting rights for women. It largely ignored a series of CEDAW committee recommendations, stating that ‘interference with political parties is something for totalitarian regimes’. After protracted court proceedings, the Supreme Court held in 2010 that art. 7 CEDAW did have direct application, and that the State had to take measures against the SGP’s refusal to include women on the ballot list. Here, the government did suddenly invoke international law and – to the frustration of the NGOs involved and many political parties – announced that it would wait for the ECHR to decide on the case before taking measures. After Strasbourg ruled – much quicker than expected – the government struck a typically Dutch compromise: if the SGP amended its regulations in order to state that no candidate could be refused because of his or her sex, the party could still mention that women did not belong in politics in its founding principles. A similar give-and-take between national and international law took place in protecting the minority position by allowing Reformed schools to refuse employment of openly gay teachers. Here too, various actors sought to discuss, and safeguard, the historic protection of these minority rights by making use of the ‘two-level playing field’ of the international and the national legal sphere to lock in policy preferences or to create openings. EU Equal Treatment legislation, for instance, largely came about as a result of intensive lobbying by Dutch and English NGOs, who 188

CONCLUSION

left their mark on its formulation. On the other hand, Dutch conservative forces managed to include the murky Dutch compromise on homosexuality and religious schools in the Employment Directive. The lack of clarity in its formulation has meant that both sides of the debate currently invoke this provision to support their viewpoint. In looking at the politics of these processes, it is clear that different parts of government can seek to achieve widely divergent goals at the international level. Carving out the right to be different, or not be discriminated against, is an issue for intensive negotiation not only within the Reformed community itself, but also within both national law and international law. The outcomes of discussions in each sphere influence those in others, but take place within unequal power relations.

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CONCLUSION: THE CONTESTED HOME-COMING OF HUMAN RIGHTS

This book started by invoking the handing out of the Dutch ‘human rights tulip’ in 2009, in a grand ceremony where the laureate stood surrounded by special tulips. By 2013, at the end of the time span covered in this book, the situation had changed markedly. The tulip was no longer handed out in the stately Hall of Knights, the centre of Dutch political power, but in one of the conference rooms of the Ministry of Foreign Affairs, with notably less publicity surrounding it. This change matched a shift in Dutch foreign policy, in which economic interests had come to prevail over the moral interests embodied in international human rights. It was also in line with a more general shift in Dutch elite discourse in which some prominent parliamentarians and academics suddenly opted to critically question the restraints that international human rights placed on Dutch policy-making. At the same time, however, there were signs that human rights were gaining more relevance in domestic policies. In October 2012, for instance, the Netherlands Human Rights Institute finally opened its doors. During the formal opening ceremony, attended by the Queen and a number of cabinet ministers, its chair emphasized the need to ‘breathe life into paper rights’ and asked, rhetorically, whether human rights treaties are mere clarion calls for battles yet to be fought, or reflections of these battles.1 The High Commissioner for Human Rights, who was

1

Speech Chair Netherlands Human Rights Institute L. Koster, 3 October 2012, http://www. mensenrechten.nl.

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also present, explicitly drew attention to the fact that she was in the first Dutch human rights city, Utrecht. These events illustrate two parallel but juxtaposed developments that have run throughout this book and that will be highlighted in this concluding chapter: the increase of resistance against domestic application of human rights on the one hand, and their ‘home-coming’ on the other. They also show the degree to which the Netherlands, as a country in general, was in flux at the beginning of the millennium. Earlier chapters have discussed the swift turn from tolerance to xenophobia, from openness to strict immigration policies, but also from consensus democracy to populism that characterized the country after the turn of the millennium. These developments, on the one hand, lead to a type of critique of international human rights that had never been witnessed before in the Netherlands. Simultaneously, they also lead to policy proposals (like a full-scale burqa ban, or the criminalization of illegal immigration) that spurred opponents to refer to international human rights as a minimum standard in a way that had not been deemed necessary in the decades before. This final chapter thus points to the way in which these paradoxes in the home-coming of human rights play out, and describes – on the basis of the previous chapters – the ways in which and the conditions under which international human rights can come to play a role in policy discussions in this particular context. This, in turn, also leads to a number of lessons for the literature on the sociology of rights in general. RESISTANCE TOWARDS INTERNATIONAL HUMAN RIGHTS

‘The European Court of Human Rights forms a severe threat to democracy’, was the title of a long op-ed in one of the main Dutch newspapers in 2010. It was accompanied by an illustration of an octopus with very long tentacles, and written by T. Baudet.2 This Ph.D. student argued that the ECHR had developed into a monster without any legitimacy, which quashed legislative amendments decided upon democratically – whether these concerned immigration policies, squatter legislation or 2

T. Baudet, ‘Het Europees Hof voor de Rechten van de Mens vormt een ernstige inbreuk op de democratie’ (The European Court of Human Rights forms a severe threat to democracy), NRC Handelsblad, 13 October 2010. The article was an abbreviated version of Baudet’s article, ‘De gespannen verhouding tussen mensenrechten en rechtsstaat’, in Harchaoui and Jonkers, 2010: 65–79.

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the freedom of expression. The author pointed out that the principles behind human rights might well be universal, but that their exact meaning was vague and subject to political debate, ‘which means that the person who has the power to determine what a right entails has the power to have his interpretation of the right prevail’. Securing fundamental rights, he argued, had to take place at the national level. There, other powers could provide checks and balances, and decisions could be made in line with national culture. In a country in which, as has been discussed, the notion of sovereignty was long deemed of little importance, and in which national culture was considered as non-existent, the article met with a wide range of dissent, both in the newspapers and in more scholarly journals. Although important newspapers in policy circles published interviews with Baudet, and follow-up articles, they also printed critiques like that of advocate and professor Ties Prakken, who fulminated against the lack of regard for the law in general.3 In the nation’s main legal periodical, the former Minister of Justice Hirsch Ballin argued that ‘anyone who juxtaposes democracy with fundamental rights as the core feature of the rule of law shows more than flawed reasoning. Even the will of the majority should be prepared to be kept in check by fundamental rights’ (Hirsch Ballin 2011: 29). The Netherlands Tijdschrift voor de Mensenrechten (Netherlands Periodical for Human Rights), to give another example, published a wide range of responses urging Baudet to finish his PhD first. Amongst the counterarguments presented were the fact that the Netherlands had democratically opted to sign the ECHR and that the court developed the whole doctrine of ‘margin of appreciation’ in order to be able to include national cultural considerations in its case law.4 Baudet’s opinions might have met with scholarly critiques but were followed with interest by certain politicians. Earlier in 2010, two Liberal Parliamentarians had already argued that the judges in Strasbourg were often ‘politicians in robes’. In proposing necessary reforms in the field of migration and the reform of the welfare state, they argued that politicians should not be stopped by ‘treaties signed a long time ago’.5 Later in 2010, a new government of Liberals and Christian Democrats had been installed. It only had a parliamentary majority because of the support 3

4 5

T. Prakken, ‘Antirecht ondermijn rechtsstaat meer dan onrecht’ (Anti-law is more of a threat to the rule of law than injustice), Het Parool, 16 November 2011. Nederlands Tijdschrift voor de Mensenrechten, issues 35/8 (2010, p. 979) and 36/1 (2011). S. Blok and K. Dijkhoff, ‘Leg het Europees Hof aan banden’ (Curtail the European Court), De Volkskrant, 7 April 2011, p. 28.

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that Wilders’ PVV party gave in exchange for strict migration policies, which resulted in a much more critical stance towards human rights treaties than ever before. In their agreement to govern, the parties concerned had indicated that the Netherlands would respect international treaties but also – ominously – that where ‘new national policies met legal constraints the Netherlands would, within the EU or other organizations, strive to amend the treaties, directives or agreements concerned’ (VVD–CDA 2010: 3). By December Christian parliamentarians proposed a motion holding that ‘The ECHR has had deep impact on national legislation . . . and member states wish to have space to make their own policies based on their national particularities’, and asking for a wider margin of appreciation.6 The Minister of Justice responded to the motion by stating that it was in line with current policy.7 A human rights policy memorandum published in 2011 was not only much more concise than its predecessors but also presented a vision on the ECHR that was in line with the notion of human rights as an export product. ‘The Court provides an important means of enforcing structural human rights improvements in countries with a limited human rights tradition, particularly in Eastern Europe’ (Ministerie van Buitenlandse Zaken 2011: 32). In addition to this, the government stated that the Court ran the risk of undermining its authority ‘by handing down judgments on cases that are only tangentially concerned with human rights’ and again stated its intent to widen the margin of appreciation that member states have in interpreting the ECHR. This position was not only contested in the media, but also by senators of the governing parties concerned. A widely supported motion put forward by a Christian Democratic senator, and adopted in April 2011, held that the whole idea that the Court ruled on issues only ‘tangentially connected with human rights’ was unjustified, that rulings should be respected instead of calling for a widening of the margin of appreciation, and called on the government to continue fighting for human rights, ‘in line with 60 years of human rights policy and the foreign policy of the past government’.8 Although a change of government in 2012 put an end to this particular governmental coalition, it did not end the right-wing critiques on how international human rights treaties set limits to, particularly, Dutch

6 7 8

House of Representatives, motion Cöruz–Omtzigt (2010, 29, 32500-VI). House of Representatives (29 December 2010, 27). Senate, motion Bemelmans–Videc (19 April 2011, 32500 V).

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immigration policies and plans to limit the welfare benefits for migrants. In February 2012, three Liberal parliamentarians wrote an op-ed arguing for limitation of the direct effect of international human rights treaties.9 They spoke about an inflation of human rights by the courts, but also critically looked at their own role: ‘Safeguarding human rights is, after all, also an important function of parliament: safeguarding against violations, but also against undermining or deflation of these rights because of over-zealous interpretations. Something is not a human right because it is labelled as such; it should be the result of a political discussion, that all too often does not take place.’ One specific problem, they stated, was that treaties like the ECHR and the ICCPR stood in the way of ensuring that immigrants only gradually earned the right to social benefits. ‘Whilst this is currently presented by the Council of State as the end to the discussion, it should be its beginning.’ The legislative proposals that they handed in afterwards were farreaching and proposed a total reversal of the openness built into the Dutch Constitution in the 1950s. They called for an addition to art. 93 that mitigates the direct effect of treaties, effectively putting an end to monism and opening the possibility of making the application of treaties subject to laws passed by parliament, proposing the following amendment to the text: ‘Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published, subject to limitation by Act of Parliament.’10 In addition, they proposed putting an end to the possibility of judicial review of acts of parliament in conflict with treaties.11 The explanatory memorandum stated that international law should prevail above national law, and that the legislator would thus never propose an act violating international law. Once a law has been decided upon, however, there was no need to have judges interpret it again. The legislator, in this reasoning, is best placed to make the policy decisions concerned. Judges, the parliamentarians argued, did not have enough knowledge of the background to international decision-making and lacked the legitimacy to put aside 9

10 11

S. Blok, K. Dijkhoff and J. Taverne, ‘Verdragen mogen niet langer rechtstreeks werken’ (Treaties should not be given direct effect any longer), NRC Handelsblad, 23 February 2012. House of Representatives, Bill 33359 (R 1986), no. 2, 2011–2012. Ibid. The proposal reads: ‘Other regulations than laws in force within the Kingdom will not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.’ Author’s translation. As was discussed in Chapter 2, the current text speaks of Statutory regulations.

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decisions made by parliament. In addition ‘the person of the judge and the argumentation can be of crucial important for the judicial ruling’.12 As ‘most important treaty provisions do not contain practically applicable regulations for specific cases, but fundamental norms with which no civilized person would disagree, the emphasis is on the interpretation of these norms’.13 This activity, the Liberals held, was more political than legal in nature. The Bill completely ignored the guarantees for parliamentary involvement in the interpretation of treaties inserted in the 1950s that were discussed in Chapter 2, such as the possibility to call for explicit approval and thus interpret treaty provisions in a parliamentary discussion (art. 91). Scholars also pointed out how the amendments proposed would not even solve the problems parliamentarians faced in tightening immigration regulations, as there were EU Directives which automatically had direct effect and stood in the way of such adjustments (Brolman and Nijman 2012: 13–15). Whilst the chances of it actually being adopted might not be that high, the proposal does serve as an illustration of a rather novel phenomenon in the Netherlands: resistance against international human rights and international courts, fed by a combination of populism, anti-European sentiments and xenophobia. THE HOME-COMING OF INTERNATIONAL HUMAN RIGHTS

The Netherlands, after 2010, witnessed an unprecedented discussion amongst scholars and politicians on the question of whether (international human) rights were a threat to democracy. In the same years, however, a parallel process took place: that of a slow ‘home-coming’ of human rights and tentative discussions on their relevance to local political and social issues. This process became particularly visible in two developments: the opening of a National Human Rights Institute and the rise of human rights cities. Whereas both developments have received some attention in earlier chapters, they deserve to be considered in some more depth in this Conclusion. Whereas the Netherlands had promised to set up a National Human Rights Institute as part of the Paris Principles agreed upon by the UN in 12

13

House of Representatives, Explanatory Memorandum to Bill 33359 (R 1986), no. 3, 2011–12, p. 7. Ibid., p. 10.

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1993, it would take nearly twenty years to realize this promise. After a seminar on the topic organized by Dutch NGOs the government initially stated that founding a NHRI was the responsibility of civil society, and it was only after a parliamentary motion in 2001 that the government itself slowly started working on founding such an institute (Donders and Olde Monnikhof 2012). In all these discussions, many of the views on the role of human rights in the Netherlands displayed throughout this book surfaced. For one, the parliamentary discussion of the bill was hardly a political event, with only seven parliamentarians showing up for the discussion. ‘This Institute’, as one parliamentarian put it, fell within the Dutch tradition of ‘being a forerunner and a pioneer in the field of human rights’.14 Another echoed this: ‘It is important for our national and international credibility and effectiveness.’ The parliamentarians did seem to agree, however, that setting up the Institute, was mostly a necessary step to continue to set the right example elsewhere: ‘Are more human rights violated here than elsewhere? I would think not.’ Even the most progressive party, the Green Left, stated: ‘Where it concerns human rights, all we have to do in the Netherlands is to dot the i’s’. The populist party PVV was more outspoken: ‘This is mere symbolism . . . Human rights are well protected in this country . . . This whole commission is a relic of the outdated ‘multiculticuddle’ (multicultiknuffel) theory that believes in a multicultural society.’ One recurrent theme was the fear that the Institute would lead to juridification. One parliamentarian, following extensive lobbying by the human rights community, had proposed an amendment which would give the Institute legal standing, and thus the possibility to take issues to court. In rejecting the motion, Minister of Justice Donner gave a clear description of the culture of consensus that prevails above rights-based approaches in the Netherlands: ‘My concern in giving the Institute legal standing is that it could lead to direct conflict between the legislator and the judiciary.’15 A legal figure like that of an institution as amicus curiae was deemed a system ‘alien’ to Dutch legal culture, and the motion was rejected. After having considered a number of options, the government proposed that the National Human Rights Institute would be made part of 14

15

House of Representatives, discussion on Bill 32467, 30 March 2011.The parliamentarians quoted in this section are Schouw, Hennis-Plasschaert, Van Raak, Dibi and Brinkman. House of Representatives, continued discussion on Bill 32467, 12 April 2011.

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the existing Equal Treatment Commission, in order not to create any more institutions and organizations in the Netherlands. This did mean that the Equal Treatment Commission had to add three additional human rights specialists and that the whole organization – as the new chair phrased it – had to be ‘processed through the human rights carwash’.16 One of the first decisions to be made by the Institute was the setting of a strategic agenda. Here, it decided to start its work by considering the human rights of the elderly, migration and human rights and discrimination on the labour market. The first theme was deemed of interest to everyone in the Netherlands, and thus not too ‘political’. The rights of migrants is much more of a political issue, but here the severity of the human rights violations reported was a reason to put it on the list of priorities. Finally, the issue of discrimination on the labour market represented a continuation in line with the ETC’s expertise. The fact that the new Human Rights Institute would open its doors in the city of Utrecht was not a coincidence. Utrecht could be considered the prime example of a second trend marking the ‘home-coming’ of human rights: the embracing of ‘rights talk’ by local authorities. As discussed in Chapter 7, Utrecht was one of the first Dutch cities to show its commitment to realizing international human rights by, among other things, writing a policy memorandum to investigate the extent to which local policies were in line with treaty obligations (Gemeente Utrecht 2011). The background to this self-identification as a human rights city was coincidental, and had a lot to do with the role of individuals, as in many of the other cases discussed. It all started with a telephone call from the FRA Joined-Up Governance project, asking whether the mayor would want to speak at a conference on human rights and the city. The mayor, a social democrat and former judge, did not have time to do so, but he was intrigued by the theme and asked the policy department to work on it. As a result, the city joined the FRA Joined-Up Governance project and developed and implemented a number of activities strengthening its profile as a human rights city.17 According to the policy-makers involved, one of the main challenges to the process of becoming a human rights city was ‘reframing’ existing activities in terms of human rights protection. ‘We have to make clear to 16

17

Personal communication, among others, on 2 December 2011. The author is a member of the Advisory Board of the Netherlands Human Rights Institute. See http://fra.europa.eu/fraWebsite/research/projects/proj_joinedupgov_en.htm; http:/human rightsutrecht.blogspot.nl and personal communication.

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all these people who are giving out soup and helping people with wheelchairs to get outside that they are actually working towards human rights protection, and part of a broader movement’.18 Another challenge was comparable to the one faced by the Human Rights Institute: how to set a human rights agenda that was acceptable to all sides of the political spectrum. The authors of the policy memorandum ended up choosing ten topics and comparing local practices to treaty standards. Where it concerned combating discrimination, for instance, the policy measures in place in Utrecht were not considered by the municipal council to be adequate. In combating poverty, the so-called ‘U pass’ allowing access to sports, culture and education was presented as a best practice to combat social exclusion. The measures to combat domestic violence and human trafficking, in providing shelter to the homeless and Fair Trade policies were all presented as best practices. Whereas many schools in Utrecht are ‘Peace Schools’ and thus technically comply with treaty obligations in the field of human rights education, the research found that the specific connection with human rights was hardly ever made. Similarly, the policy memorandum set out how the placement of cameras in public spaces was in line with treaty obligations, even if it hardly contributed to combating crime. In assessing immigration policies, the memorandum stipulated how Utrecht went further than national policies, but could not provide shelter to all undocumented migrants. Also, in looking into the right to health care for the elderly, it pointed out the need for a more culturally sensitive and individualized approach. The city of Utrecht was part of a wider movement of Dutch local authorities that, often because of their international contacts, started to explicitly consider the relevance of human rights to local government. The motivation to do so differed considerably, as did the set of rights to which cities referred. The city of The Hague, for instance, was mostly driven by the fact that being the ‘Legal Capital of the World’ was an excellent form of city branding. At the same time, it decided to base its entire youth policy on the Convention of the Rights of the Child. At a series of meetings on human rights cities, organized by Amnesty International, the Dutch Association of Municipalities and the city of Utrecht, it also became clear that many politicians were hesitant about connecting local issues with international human rights. ‘The notion of 18

Presentation H. Sakkers, Conference ‘Bringing Human Rights Home’, Middelburg, 2 December 2011.

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human rights is rather alien to people at the local level and can also lead to polarization. I would prefer “doing human rights” without referring to them.’19 Nevertheless, the twin examples of the National Human Rights Institute and the rise of human rights cities can well be considered tentative attempts to address the main theme of this volume: the relative lack of reference to international human rights in policy-making in the Netherlands. The paradox between these developments and the rise of rights resistance discussed before was well captured by one parliamentarian who, in discussing the NHRI Bill, remarked: ‘We recognize the positive effect that the governmental support to the Institute can have. At the same time, this is undermined by the limited vision of this cabinet on the meaning of international human rights treaties, the accession of the EU to the ECHR, and the jurisdiction of the ECHR.’20 GIVING MEANING TO HUMAN RIGHTS

Having set out these two broad undercurrents in discussions on human rights in the Netherlands, the time has now come to return to our central theme: Assessing why it is that human rights have so little relevance in Dutch political and social discussions, and investigating under what circumstances they do acquire meaning. Human rights, as is clear by now, have traditionally been considered to be an ‘export product’ in the Netherlands and thus a matter of foreign policy. When contributing to discussions on the UDHR and the ECHR, and in signing these documents, the Netherlands did not primarily do so to set the right example to others. When it opened up its Constitution, adopting what could well be the most internationalist approach to human rights in the world, it did so in its capacity as a ‘guiding nation’. When the Netherlands played a key role in drawing up new international human rights treaties and strengthening the mechanisms to monitor them, the rationale was that these concerned ‘rights for others’. Where it concerned domestic policies, human rights were considered to be much less relevant. Politicians and the public alike associated human rights with torture and child abuse in faraway places, and not with injustices around the corner.

19

20

Mayor during a meeting on ‘Human Rights Cities’ as part of the Council of Europe local democracy week, 10 October 2011. Senator Engels, Senate, 15 November 2011, on Bill 32467.

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Reference to international treaties could, as we have seen in a number of cases, cause bewilderment and even irritation. Two examples of the irrelevance of international human rights to domestic discussions were the Wilders case and the process of policymaking in the field of domestic violence. The case against Geert Wilders was essentially about combating xenophobia and racism. Here, generally, international human rights law emphasizes the right not to be discriminated against, whereas domestic law focuses on the freedom of expression. In the court case against the politician the international legal perspective hardly received any attention. The plaintiffs were barely allowed to speak, and once the Amsterdam court ruled that Wilders should be acquitted of incitement to hatred the majority of the Dutch considered this to be the end of the story, showing little interest for the views of the ECtHR or the Human Rights Committee on the issue. Of course, many human rights depend on governmental policymaking, instead of litigation, for their realization. A second example of rights that were ignored was that of domestic violence, in which the governmental policies were developed in total disregard of international human rights obligations. The policy memorandum on the topic, and the parliamentary discussions, ignored the recommendations on the topic from international human rights bodies, case law and the contents of a Council of Europe treaty to which the Netherlands had actively contributed. Just as in the Wilders case, this led to a difference in emphasis, with a lack of attention given to gender–based differences and to the importance of collecting specific data on, for instance, ethnicity and domestic violence. In explaining why it is that human rights play such a minor discursive role in Dutch political and social discussions, this book has argued that it is crucial to look at the combination of the legal framework, legal culture and consciousness, and the actors involved. The Dutch legal framework, for instance, might appear to display an enormous openness towards international public law at first sight, yet it contains a number of crucial substantive and procedural hurdles that impede that law’s implementation. For one, there is the way in which many human rights are denied direct effect. This applies, as was discussed in Chapter 7, to many social and economic rights and prevents individuals from seeking effective remedies for rights violations, forcing them to wait for governmental action instead. This has led to creative legal strategies, such as an emphasis on the social rights protected by ECHR rights that are 200

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considered binding, or the right to privacy, or even a reliance on torts law, but these have also played an important role in preventing international human rights from acquiring meaning. Human rights litigation also faces a number of procedural obstacles. First, as became clear in the Wilders case, prosecutors have a discretion not to take a case to court. The way this is used in politically sensitive cases became clear in a case not discussed in this book. Here, victims of the Argentine junta sought to see Jorge Zorreguieta, the father of the Dutch Queen, tried for his role in the ‘Dirty War’. Whereas the recently ratified International Convention for the Protection of All Persons from Enforced Disappearance offers the legal ground for prosecution, the public prosecutor decided not to pursue the case.21 As in the Wilders case, the plaintiffs decided to invoke art. 12 of the Criminal Code of Procedure, hoping that the Appeals Court would order the prosecution to take up the case – even if this could mean that the prosecutor – as in the Wilders case – would argue for acquittal. Another procedural obstacle in cases like this is the very limited ius standi of these plaintiffs, who can only take part in proceedings if they have a strictly defined direct interest in the case, and can only be heard on certain issues in the courtroom. Nevertheless, human rights do not come to play a role via courts alone. As Judge Learned Hand put it: ‘Liberty lies in the hearts of men and women.’ Here, a first issue to look into is the simple knowledge of the existence of human rights. We have seen how little the Dutch know about human rights in general, and about their own constitutional order in particular and how strongly they couple the notion of human rights to injustices that arise far beyond their borders. The admittedly slippery notions of legal culture and legal consciousness, however, have also been invoked to describe the place of rights in society at large. There is the way in which citizenship is largely understood as social citizenship, and the political emphasis on consensualism combined with a fear of juridification. An additional element to consider is the enormous amount of actors involved in policy-making in a consensualist country like the Netherlands. As far from a centralist, hierarchical order as imaginable, policy-making in the Netherlands has been compared to an orchestra without a conductor, consisting of a plethora of governmental 21

H. Klis, ‘Openbaar ministerie vervolgt Jorge Zorreguieta niet – ‘geen verassing’ (Public prosecution will not prosecute Jorge Zorreguieta – ‘not a surprise’), NRC Handelsblad, 18 March 2012.

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departments, civil society actors, advisory bodies and, representative organizations, all of whom have to see the relevance of a rights frame to a particular topic. At times, however, human rights can serve the discursive purpose of aligning different interests and creating a conceptual umbrella to unite them. This happened in another case not discussed in this book, in which the uniting of many actors seeking to support Dutch ratification of the Convention of the Rights of Persons with Disabilities caused the government to announce that it would do so. In other cases, like that of human rights education, the variety of actors involved has made it very difficult to ensure implementation of one particular human right. Nevertheless, this book has also offered some examples of cases in which human rights did come to acquire meaning in the Netherlands. This was done against the background of the far-reaching changes that Dutch society, and its political culture, underwent after the turn of the millennium. A shift from the tradition of consensualist decision-making towards populist politics, for instance, also led to an even stronger mistrust of judges and judicial decision-making. In contrast, this also led to a rise of litigiousness. The rise of xenophobia and polarization created a climate that was hardly conducive to the realization of human rights, but that simultaneously made reference to these rights more relevant than ever. Similarly, the rapid movement towards secularism led to discussion on the rights of religious minorities, but also spurred these minorities to frame historical privileges as guarantees of the protection of international human rights. In assessing which human rights did come to acquire meaning in Dutch domestic discourses a number of issues are important. The first is, as has often been stated elsewhere, that the cause concerned had the support of a large and broad coalition of advocates. In furthering their cause they bypass local legal deadlocks by seeking the support of international law, as happened in the campaign: ‘No Child out onto the Streets’. Once a norm has been set at the international level, as by the committee overseeing the implementation of the European Social Charter, it can be drawn into the domestic debate, and referred back to in court cases, municipal policies, the media and parliamentary discussions. In order for this to take place, the political realm is as important as the legal one. One element to emphasize is the key role of parliamentarians. It was internationalist members of parliament, after all, who ensured the openness of the Dutch Constitution back in the 1950s. They 202

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safeguarded a potential key role for the Dutch parliament because they were scared that the development of international public law would end up as the technical domain of bureaucrats. These fears, however, ended up coming true, with little parliamentary involvement or interest in treaty-making and implementation. The attempts by certain parliamentarians to limit the direct effect of treaties described above can, in this context, be considered as a departure from this tradition. So can the way in which parliamentarians sought to invoke human rights law in supporting NGO- attempts to secure the right to shelter for undocumented migrant children. The role of human rights cities, described above, also shows how these coalitions of non-state actors and politicians seeking support for their concerns in international human rights law can be very effective at the local level. THE SOCIOLOGY OF RIGHTS AND THE CASE OF THE NETHERLANDS

Many of these findings confirm insights from the nascent field of the sociology of human rights. The case of the Netherlands, for one, is just another instance of the global rise of rights talk that takes place even in those countries in which human rights were once reserved for foreign policy. This rise can, on the one hand, be explained by forces such as globalization and the related expansion, increase in enforceability and emancipation of international human rights. On the other hand, domestic developments, to be seen in an increase in xenophobia, fears of immigration and a dismantling of the welfare state as a result of the economic crisis, cause local actors to reach out to international human rights as a frame of reference. This book has set out, as many other studies have before it, the conundrums of the interplay between the local and the global in these matters. Reference to international human rights in a local context, for instance, can be compared to speaking a foreign language, and require translation into the ‘vernacular’ (Merry 2006) in order to receive support domestically. Human rights education, for instance, had to be ‘repackaged’ as part of civic education, suddenly deemed important by Dutch politicians with the arrival of the new millennium, but it did lose part of its meaning as a result of this reframing. At the same time, NGOs seeking to accomplish something nationally – like obtaining shelter for undocumented children – had to play the ‘two-level playing field’ of international 203

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law (Putnam 1988) in order to get a norm defined that could subsequently be invoked nationally. One theoretical argument that is all too often forgotten in socio-legal studies of human rights, is the need to not only study human rights as politics, or as discourse, but also as law itself. Law does matter. As the previous section has already set out, it is important to look beyond the broad treaty provisions to the way in which these are actually worked out in parliamentary discussions, national legislation and the regulations, and in case law. Whereas a provision can well be understood to have direct effect in international law, this does not always have to be echoed within the national legal order. In addition, as has become overtly clear, national procedural law can throw up important obstacles to human rights litigation, for instance by severely limiting the legal standing of human rights NGOs. Whereas many of the insights on the Netherlands correspond with those developed in scholarship elsewhere and could be applied in other research, there are also a number of differences to take into account. For one, there are the different dynamics of cajoling a State into respecting its human rights obligations at the behest of actors. In some countries dependant upon foreign aid this support can be tied to the human rights record. For a country that hands out foreign aid the most effective argument seems to be that domestic noncompliance with human rights obligations affects the ability to ‘do good’ elsewhere. There are also a number of notable differences with the Western Anglo-Saxon common law countries in which much of the socio-legal literature on human rights is situated. The strong emphasis on parliamentary democracy in the Netherlands, illustrated by the prohibition of constitutional review, creates a very different balance of power, in which it is less likely that the judiciary will hold the executive to task concerning its international human rights obligations and where it is thus up to parliament to ensure that its legislation is in full compliance with international human rights. Here, the strong monism of the Netherlands, in which human rights treaties do not need explicit approval from parliament and apply directly once published, can also be considered to have a downside. If these treaties are approved with a silent majority, and thus not even discussed in parliament, this can also lead to a lack of parliamentary knowledge of, involvement in and support for, the promises embodied in them, which can mean that they are not referred to in relevant policy discussions. 204

HOME-COMINGS

HOME-COMINGS

This book has argued that, in the sociology of human rights, it is also important to study how these rights acquire meaning in a country like the Netherlands. The reason behind this argumentation has not been to suggest that human rights should not be an important element of foreign policy in such a country. Neither is it the suggestion that the Netherlands has a disturbing human rights record: this is not the case. Nevertheless, there are ample examples of measures that the Dutch State has signed up to take, or actions that it has promised to refrain from taking, that would strengthen the rights of people living in the Netherlands, whether this concerns battered women, undocumented migrants or religious minorities. Considering their cause from the perspective of international human rights, and working on the solutions laid down in the international human rights framework, would strengthen their position. It might even, one day, lead to a ceremony in which there will not only be the Dutch Minister of Foreign Affairs handing out a human rights tulip to an Iranian human rights defender, but also the Minister for the Interior giving the award to a Dutch or a foreign human rights activist for work done inside the Netherlands.

205

BIBLIOGRAPHY

Alston, Philip, 2011. ‘Hobbling the Monitors: Should UN Human Rights Monitors be Accountable?’, Harvard International Law Journal 52, no. 2: 561–649. Amnesty International, 2008. The Netherlands: The Detention of Irregular Migrants. Amsterdam: Amnesty International. 2010. Vreemdelingendetentie: In Strijd met de Mensenrechten. Amsterdam: Amnesty International. An Na’im, Abdullahi A, ed., 2002. Cultural Transformation and Human Rights in Africa. London & New York: Zed Books. Andeweg, Rudy and Galen Irwin, 2002. Governance and Politics of the Netherlands. New York: Palgrave Macmillan. Asscher, L. F., 2003. ‘Reanimeer De Grondwet!’, Socialisme & Democratie 60, no. 3: 18–22. Baehr, Peter and Monique Christine Castermans-Holleman, 1990. ‘The Promotion of Human Rights: The Netherlands at the UN’, in Baehr and Castermans-Holleman (eds.), The Netherlands and the United Nations: Selected Issues, 23–34. The Hague: T.M.C. Asser Instituut. Bajaj, Monisha, 2011. ‘Human Rights Education: Ideology, Location, and Approaches’, Human Rights Quarterly 33: 481–508. Banakar, Reza, 2004. ‘When do Rights Matter? A Case Study of the Right to Equal Treatment in Sweden’, in Halliday and Schmidt (eds.), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, 165–184. Oxford: Hart. Beke, Balthasar and Jo Rullens, 2008. Wet Tijdelijk Huisverbod: Een Handreiking voor de Burgemeester. The Hague: Ministry of the Interior. Benhabib, Seyla, 2008. ‘Investigating Citizenship’, in Isin, Nyers and Turner (eds.), Citizenship between Past and Future, 18–35. Abingdon: Routledge.

206

BIBLIOGRAPHY

Besselink, Leonard, 2002a. De Constitutionele Bepalingen over Verdragen die van de Grondwet afwijken en de Opdracht van Bevoegdheid Aan Internationale Organisaties. Utrecht University Press. 2002b. ‘De Publieke Taak en de Sociale Grondrechten; De Betrekkelijke Waarde Van Sociale Grondrechten’, in Staatsrechtconferentie 2002 De Publieke Taak. Besselink, Leonard and R. A. Wessel, 2003. ‘The Constitutional Duty to Promote the Development of the International Legal Order: The Significance and Meaning of Article 90 of the Netherlands Constitution’, Netherlands Yearbook of International Law: 89–138. 2009. De Invloed van Ontwikkelingen in de Internationale Rechtsorde op de Doorwerking naar Nederlands Constitutioneel Recht: Een ‘Neo-Monistische’ Benadering. Alphen aan den Rijn: Kluwer. Betlem, Gerrit and André Nollkaemper, 2003. ‘Giving Direct Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’, European Journal of International Law 14, no. 3: 569–589. Blankenburg, Ehrhard, 1998. ‘Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany’, American Journal of Comparative Law 46, no. 1: 1–42. 2000. Legal Culture in Five Central European Countries. The Hague: Wetenschappelijke Raad voor het Regeringsbeleid. Blankenburg, Erhard and F. Bruinsma, 1994. Dutch Legal Culture. Deventer & Boston: Kluwer Law and Taxation Publishers. Bogaarts, M. D., 1989. De Periode Van Het Kabinet-Beel: 3 Juli 1946 – 7 Augustus 1948. Parlementaire Geschiedenis Van Nederland Na 1945. Vol. C. Nijmegen: Centrum voor Parlementaire Geschiedenis. Boven, T. van, C. Flinterman, and I. Westendorp, eds., 1998. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Utrecht: Netherlands Institute of Human Rights. Bovenkerk, Frank, 2006. ‘Islamofobie’, in Donselaar and Rodrigues (eds.), Monitor Racisme en Discriminatie, Zevende Rapportage, 86–110. Amsterdam & Leiden: Anne Frank Stichting. Bovens, Mark, 2003. De Digitale Republiek: Democratie en Rechtsstaat in de Informatiemaatschappij 2003. Amsterdam University Press. Breillat, D., C. A. J. M. Kortmann, and J. W. A. Fleuren, 2002. Van De Constitutie Afwijkende Verdragen. Deventer: Kluwer. Brenninkmeijer, Alex, 2010. ‘Verdwijnende Mensenrechten in Nederland’, Nederlands Tijdschrift voor de Mensenrechten 35, no. 3: 277–285. Brouwer, J. G., 1992a. Verdragsrecht in Nederland: Een Studie naar de Verhouding tussen Internationaal en Nationaal Recht in Historisch Perspectief. Zwolle: Tjeenk Willink. 207

BIBLIOGRAPHY

Brolman, Kiki and Janne Nijman. 2012. ‘Rechtstreekse Werking Verdragen Goed Voor Nederland’, Openbaar Bestuur, June: 13–15. Bruinsma, F., 2003. Dutch Law in Action. Utrecht: Ars Aequi Libri. Brysk, Alison, ed., 2002. Globalization and Human Rights. University of California Press. Bureau Veldkamp, 2009. Bouwstenen Van Burgerschap. Een Onderzoek in het Kader van het Handvest voor Verantwoordelijk Burgerschap. Buruma, Ian, 2007. Murder in Amsterdam: The Death of Theo Van Gogh and the Limits of Tolerance. London: Atlantic Books. Cardenas, Sonia, 2009. ‘Human Rights in Comparative Politics’, in Goodhart (ed.), Human Rights: Politics and Practice, 76–91. Oxford University Press. Carver, Richard, 2010. ‘A New Answer to an Old Question: National Human Rights Institutions and the Domestication of International Law’, Human Rights Law Review 10, no. 1: 1–32. Castermans-Holleman, Monique Christine, 1992. Het Nederlands Mensenrechtenbeleid in De Verenigde Naties. The Hague: Asser Instituut. Chalmers, Damian and Georgio Monti, 2008. European Union Law: Updating Supplement. Cambridge University Press. Claes, Monica and Bruno De Witte, 1998. ‘Report on the Netherlands’, in Weiler, Slaughter and Sweet (eds.), The European Court and National Court: Doctrine and Jurisprudence, 171–194. Oxford: Hart Publishing. Claude, Richard Pierre and Burns H. Weston, eds., 2006. Human Rights in the World Community: Issues and Action. University of Pennsyvlania Press. Clifford, Bob, 2002. ‘Globalization and the Social Construction of Human Rights Campaigns’, in Brysk (ed.), Globalization and Human Rights, 133–147. University of California Press. 2008. The International Struggle for New Human Rights. Pennsylvania Studies in Human Rights. University of Pennsylvania Press. Coenders, M., M. Lubbers, P. Scheepers and M. Verkuyten, 2008. ‘More than Two Decades of Changing Ethnic Attitudes in the Netherlands’, Journal of Social Issues 64, no. 2: 269–285. Commissie Cals-Donner, 1969. Tweede Rapport Van De Staatscommissie Van Advies Inzake De Grondwet en de Kieswet. The Hague: Staatsdrukkerij. Commissie Parlementair Onderzoek Onderwijsvernieuwingen, 2008. Tijd Voor Onderwijs. The Hague: SDU Uitgevers. Commissie Uitdragen kernwaarden van de rechtsstaat, 2008. Onverschilligheid is Geen Optie: De Rechtsstaat Maken we Samen. The Hague: Ministry of Justice and Ministry of the Interior and Kingdom Relations. Commissie Van Eysinga, 1951. Eindrapport Van De Commissie Nopens De Samenwerking Tussen De Regering En Staten-Generaal Inzake Het Buitenlands Beleid. 208

BIBLIOGRAPHY

Commissie van Rooy, 2011. Rechtspraak in Beeld: Evaluatie Wilders II en Aanbevelingen voor de Toekomst. Amsterdam Court. Coomans, Fons, 2006. Justiciability of Economic and Social Rights: Experiences from Domestic Systems. Intersentia & Maastricht Centre for Human Rights. Council of Europe, 1999. Congress of Europe. Strasbourg: Council of Europe. 2010. Charter on Education for Democratic Citizenship and Human Rights Education: Adopted in the Framework of Recommendation CM/Rec (2010)7 of the Committee of Ministers. Coutin, Susan Bibler, 2002. ‘Reconceptualizing Research: Ethnographic Fieldwork and Immigration Politics in Southern Californa’, in Starr and Goodale (eds.), Practicing Ethnography in Law: New Dialogues, Enduring Methods, 108–127. New York: Palgrave Macmillan. Cowan, Jane K., 2001. Marie-Benedicte Dembour and Richard Wilson, eds., Culture and Rights: Anthropological Perspectives. Cambridge University Press. Daalder, Hans, 1989. Ancient and Modern Pluralism in the Netherlands: The 1989 Erasmus Lectures at Harvard University. Harvard University, Working Paper No. 22. Danish Institute for Human Rights, 2009. The Social Situation Concerning Homophobia and Discrimination on Grounds of Sexual Orientation in the Netherlands. Copenhague: DIHR. Davis, Martha, 2007. ‘Thinking Globally, Acting Locally: States, Municipalities, and International Human Rights’, in Soohoo, Albisa and Davis (eds.), Bringing Human Rights Home: A History of Human Rights in the United States, 258–286. University of Pennsylvania Press. De Gaay Fortman, Bas, 1973. ‘De Vredespolitiek Van De Radicalen’, International Spectator 27, no. 4: 109–113. De Lange, Roel, B. J. G. Leeuw and P. A. M. Mevis, 2009. Grondwet en het Recht op een Eerlijk Proces: Algemene Verkenning en Uitwerking voor het Strafrecht. Deventer: Kluwer. De Sousa Santos, B. and C. A. Rodriguez-Garavito, 2005. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge University Press. De Vaan, K. B. M. and A. Schreijenberg, 2010. ‘The Law of Temporary House Ban in Practice’, in WODC (ed.), Justitiele Verkenningen: Huiselijk Geweld. 36 no. 8, 75–88. The Hague: Boom. De Vries, 1973. ‘On the Modernity of the Dutch Republic’, Journal of Economic History 33, no. 1: 191–202. De Wijkerslooth, J. L., 2000. ‘De Angstige Rechter’, Trema: 448–452. Defence for Children, 2008. Voor Ieder Kind Een (t)Huis: Het Recht op onderdak voor Illegale Kinderen in Nederland. Leiden: Defence for Children, 2008. 209

BIBLIOGRAPHY

Dekker, Henk and Jolanda Van der Noll, 2007. ‘Islamophobia and its Origins’. Paper presented at the 4th ECPR conference, Pisa, 6–8 September 2007. Dekker, Paul, Joep De Hart and Paul De Beer, 2004. De Moraal in De Publieke Opinie – Een Verkenning Van ‘Normen en Waarden’ in Bevolkingsenquêtes. The Hague: Sociaal en Cultureel Planbureau. Dijk, T. van, S. Flight, E. Oppenhuis and B. Duesmann, 1997. Huiselijk Geweld: Aard, Omvang en Hulpverlening. Hilversum: Intomart. Donders, Y. and M. Olde Monnikhof, 2012, ‘Het College voor de Rechten van de Mens belicht, bewaakt, beschermt en bevordert mensenrechten in Nederland’, Nederlands Tijdschrift voor de Mensenrechten, 37(6): 693–714. Donnelly, Jack, 2003. Universal Human Rights in Theory and Practice. New York: Cornell University Press. Donner, A. M., 1980. ‘Inleiding’, RM Themis 4/5: 354–361. Douzinas, Costas, 2000. The End of Human Rights. Oxford: Hart Publishing. ECRI, 2007. Third Report on the Netherlands: Adopted on 29 June 2007. Strasbourg: European Commission against Racism and Intolerance. Egeland, Jan, 1984. ‘Human Rights. Ineffective Big States, Potent Small States’, Journal of Peace Research 21, no. 3: 207–213. 2004. ‘The Politics of Humanitarianism’, in, Lecture on Politics and Humanitarianism by the UN Undersecretary of Humanitarian Affairs. New York: Columbia University. Elchardus, Mark, 2002. De Dramademocratie. Tielt: Lannoo. Elzinga, D. J., R. De Lange and H. H. G. Hoogers, 2008. Handboek van het Nederlandse Staatsrecht. Deventer: Kluwer. Enthoven, Guido, 2011. Hoe Vertellen Wij het de Kamer? Een Empirisch Onderzoek naar de Informatierelatie tussen Regering en Parlement. Zutphen: Eburon. Epp, Charles R., 1998. The Rights Revolution. University of Chicago Press. European Coalition of Cities against Racism, 2004. Ten-Point Plan of Action: Commitments for Fighting Racism in Cities. European Commission, 2005. The European Constitution: Post-Referendum Survey in the Netherlands. Brussels: European Commission. 2008. Flash Eurobarometer European Union Citizenship. 2009. Flash Eurobarometer: The Rights of the Child Analytical Report. Evers, Therese, 2006. Huiselijk Geweld: Een Kerntaak voor de Politie. Utrecht: Transact. Ewick, P. and Susan S. Silbey, 1998. The Common Place of Law: Stories from Everyday Life. University of Chicago Press. Eyffinger, Arthur, 2003. The Hague: International Centre of Justice and Peace. The Hague: Ministry of Foreign Affairs. 2007. The 1907 Hague Peace Conference: The Conscience of the Civilized World. The Hague: Judicap.

210

BIBLIOGRAPHY

Fennema, Meindert, 2010. Geert Wilders: Tovenaarsleerling. Amsterdam: Bert Bakker. Fleuren, J. W. A., 2004. Een Ieder Verbindende Bepalingen van Verdragen. The Hague: Boom Juridische Uitgevers. 2010. ‘The Application of Public International Law by Dutch Courts’, Netherlands International Law Review: 245–266. Fortuyn, Pim, 1997. Tegen de Islamisering van onze Cultuur: Nederlandse Identiteit als Fundament. Utrecht: A.W. Bruna Uitgevers. FRA, 2009. Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States, Part II: The Social Situation. Vienna: European Union Agency for Fundamental Rights (FRA). Friedman, Lawrence M. and Harry N. Scheiber, eds., 1996. Legal Culture and the Legal Profession. Boulder, Colorado: Westview Press. Frissen, P. H. A., 2002. De Staat. Enschede: Van Gennep. Fukuyama, Francis, 2004. State-Building: Governance and World Order in the 21st Century. Cornell University Press. Galligan, Denis and Deborah Sandler, 2004. ‘Implementing Human Rights’, in Halliday and Schmidt (eds.), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, 23–55. Oxford: Hart. Gardbaum, Stephen, 2009. ‘Human Rights and International Constitutionalism’, in Dunoff and Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, 178–205. Cambridge University Press. Geddes, Andres, 2004. ‘Britain, France, and EU Anti-Discrimination Policy: The Emergence of an EU Policy Paradigm’, West European Politics 27, no. 2: 334–353. Gemeente Utrecht, 2011. Mensenrechten in Utrecht: Hoe geeft Utrecht invulling aan Internationale Mensenrechtenverdragen? Een Stedelijke Zoektocht naar Sociale Rechtvaardigheid. Geschiere, Peter, 2009. The Perils of Belonging: Autochthony, Citizenship and Exclusion in Africa and Europe 2009. University of Chicago Press. Gijsberts, M. and M. Vervoort, 2007. ‘Wederzijdse Beeldvorming’, in Dagevos and Gijsberts (eds.), Jaarrapport Integratie 2007, 282–310. The Hague: Sociaal & Cultureel Planbureau. Glendon, Mary Ann, 1991. Rights Talk: The Impoverishment of Political Discourse. New York: The Free Press. Goldstein, Judith O., Miles Kahler, Robert Keohane and Anne-Marie Slaughter, 2000. ‘Introduction: Legalization and World Politics’, International Organization 54, no. 3: 385–399. Goodale, Mark, 2006a. ‘Introduction to “Anthropology and Human Rights in a New Key”.’, American Anthropologist 108, no. 1: 1–8.

211

BIBLIOGRAPHY

2006b. ‘Toward a Critical Anthropology of Human Rights’, Current Anthropology 47, no. 3, internal-pdf://Goodale anthropology rights 2006-0163967488/Goodale anthropology rights 2006.pdf. Goodale, Mark, ed., 2009. Human Rights: An Anthropological Reader. Malden: Wiley Blackwell. Goodhart, Michael, 2009. ‘Introduction: Human Rights in Politics and Practice’, in Goodhart (ed.), Human Rights: Politics and Practice, 2–8. Oxford University Press. Gready, Paul, ed., 2004. Fighting for Human Rights. London: Routledge. Groen, Lisanne and Martijn Stronks, 2010. Entangled Rights of Freedom: Freedom of Speech, Freedom of Religion and the Non-Discrimination Principle in the Dutch Wilders Case. The Hague: Forum. Grotius, Hugo, 1625. The Law of War and Peace. Halberstam, Daniel, 2009. ‘Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States’, in Dunoff and Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, 326–355. Cambridge University Press. Halliday, Simon and Patrick Schmidt, 2004. Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context. Oxford: Hart. 2009. ‘Michael McCann and Rights at Work’, in Halliday and Schmidt (eds.), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, 174–186. Cambridge University Press. Halme-Tuomisaari, Miia, 2010. Human Rights in Action: Learning Expert Knowledge. Leiden & Boston: Martinus Nijhoff Publishers. Handmaker, Jeff, 2009. Advocating for Accountability: Civic-State Interactions to Protect Refugees in South Africa. Antwerp: Intersentia. Harchaoui, S. and J. Jonkers, eds. Leve De Rechtsstaat! The Hague: Boom, 2010. Hartoyo, Nunik Maharani, 2009. Fitna the Movie: A Case Study. Universitas Padjadjaran: A Paper presented to the Department of Journalism Studies, Faculty of Communication Sciences. Hathaway, Oona, 2002. ‘Do Human Rights Treaties make a Difference?’, Yale Law Journal 111: 1936. Hawkins, Darren and Melissa Humes, 2002. ‘Human Rights and Domestic Violence’, Political Science Quarterly 117, no. 2: 231–257. Hellema, Duco, 2009. ‘Dutch Foreign Policy: The Role of the Netherlands in World’, in James (ed.), International Relations Studies Series. Dordrecht: Republic of Letters. Hendriks, Aart and Ashley Terlouw, 2009. ‘Raad Van State helpt Regering Europese Anti-Discriminatierichtlijn te ontduiken’, Nederlands Juristenblad no. 26: 1636–1637. 212

BIBLIOGRAPHY

Hermans, Esther, Nathalie Van Loon, Matthias Ploeg and Barbara Oomen, 2008. Gemiste Kansen? Aandacht voor Mensen- en Kinderrechten in het Nederlandse Onderwijs: Verslag van een voorlopig onderzoek. Amsterdam: Platform Mensenrechteneducatie. Hertogh, Marc, 2008. ‘Grondwet is Geen Maïzena; Drie Redenen waarom de Grondwet geen bindmiddel kan zijn’. NRC Handelsblad, 29 February 2008. 2010. ‘The Curious Case of Dutch Legal Culture: A Reassessment of the Survey Evidence’, Journal of Comparative Law 5, no. 2. Hirsch, Susan, 2002. ‘Feminist Participatory Research on Legal Consciousness’, in Starr and Goodale (eds.), Practicing Ethnography in Law: New Dialogues, Enduring Methods, 13–33. New York: Palgrave Macmillan. Hirsch Ballin, Ernst. 2011. ‘De Rechtsstaat: Wachten op een Nieuwe Dageraad?’, Nederlands Juristenblad: 29. Hirsi Ali, Ayaan, 2010. Nomad: From Islam to America: A Personal Journey through the Clash of Civilizations. London: Simon & Schuster. Hoetink, Carla and Karin Van Leeuwen, 2011. ‘Dilemma’s of Democracy: Early Postwar Debates on European Integration in the Netherlands’, in J. Gijsenbergh et al. (eds.), Creative Crises of Democracy. Brussels: Peter Lang. Holzhacker, Ronald, 2009. ‘Transnational Strategies of Civil Society Organizations Striving for Equality and Nondiscrimination: Exchanging Information on New EU Directives, Coalition Strategies and Strategic Litigation’, in Bruszt and Holzhacker (eds.), The Transnationalization of Economies, States, and Civil Societies: New Challenges for Governance in Europe, 219–239. London: Springer. Hooker, Mark, 2009. Freedom of Education: The Dutch Political Battle for State Funding of All Schools Both Public and Private (1801–1920). Createspace. Huizinga, Johan, 1935. Nederlands Geestesmerk. Leiden: Sijthoff. Human Rights Council, 2008. National Report of the Netherlands. Human Rights Watch, 2008. Discrimination Under the Name of Integration. London: Human Rights Watch. Hurenkamp, Menno and Eveline Tonkens, 2008. Wat vinden burgers zelf van Burgerschap? Burgers aan het woord over Binding, Loyaliteit en Sociale Cohesie. The Hague: NICIS. Hynes, Patricia, Michele Lamb, Damien Short and Matthew Waites, 2010. ‘Sociology and Human Rights: Confrontations, Evasions and New Engagements’, The International Journal of Human Rights 14, no. 6: 811–832. Ignatieff, Michael, ed., 2005. American Exceptionalism and Human Rights. Princeton University Press. Inspectie Ontwikkelingssamenwerking en Beleid, 2011. De Nederlandse Inzet voor Versterking van de Raad van Europa: Vijf Jaar Top van Warschau. The Hague: IOB. 213

BIBLIOGRAPHY

Inspectie van het Onderwijs, 2008. De Staat Van Het Onderwijs: Onderwijsverslag 2006/2007. Utrecht: Inspectie van het Onderwijs. Ishay, Micheline R, 2004. The History of Human Rights: From Ancient Times to the Globalization Era. University of California Press. Jacobs, Antoine, 2009. ‘Rug Recht en Hoofd Koel met de Enkelefeitconstructie!’, Nederlands Juristenblad: 1484. Janssens, A. L. J. and A. J. Nieuwenhuis, 2008. Uitingsdelicten. Deventer: Kluwer. Kagan, Robert, 1997. ‘Should Europe Worry about Adversarial Legalism?’, Oxford Journal of Legal Studies 17, no. 2: 165–183. Kelly, Tobias, 2009. ‘The UN Committee Against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty’, Human Rights Quarterly 31, no. 3: 777–800. Kennedy, David, 2002. ‘The International Human Rights Movement: Part of the Problem?’, Harvard Human Rights Journal: 101–125. Kennedy, James, 1995. Nieuw Babylon in Aanbouw: Nederland in De Jaren Zestig. Amsterdam: Boom. Keohane, Robert, Andrew Moravcsik and Anne-Marie Slaughter, 2000. ‘Legalized Dispute Resolution: Interstate and Transnational’, International Organization 54, no. 3: 457–488. Kickert, Walter J. M, 2003. ‘Beneath Consensual Corporatism: Traditions of Governance in the Netherlands’, Public Administration 81, no. 1: 119–140. Klerk, Y. S. and L. Van Poelgeest, 1991. ‘Ratificatie a Contre Coeur: De Reserves van de Nederlandse Regering jegens het Europees Verdrag voor de Rechten van de Mens en het Individueel Klachtrecht’, Rechtsmagazijn Themis no. 5: 220–247. Klip, Andre, 2009. ‘Op Weg Naar Minder Opportuniteit?’, Delikt En Delikwent no. 15: 185. Kloek, Joost and Karin Tilmans, eds., 2002. Burger: Een Geschiedenis van het Begrip ‘Burger’ in de Nederlanden van de Middeleeuwen tot de 21ste Eeuw. Amsterdam University Press. Knevel, Andries, 2009. Allemaal Gereformeerden: In Gesprek met Tien Gereformeerde Voormannen 2009. Kampen: Uitgeverij Kok. Kok, Laurens. ‘Ombudsman Jaagt Kabinet in Gordijnen’, Nederlands Dagblad. Kortmann, C. A. J. M., 1983. De Grondwetsherziening. Deventer: Kluwer. Kortmann, Tijn, 2005. Constitutioneel Recht. Deventer: Kluwer. Krommendijk, Jasper, 2010. ‘The Impact and Effectiveness of State Reporting and Concluding Observations: The Case of the Netherlands’. Unpublished research paper. 2011. ‘Non-Compliance with Concluding Observations of the HRC in the Netherlands: The ECHR and the ECtHR as One Explanation’, Maastricht Faculty of Law Working Paper No. 2011–8. 214

BIBLIOGRAPHY

Kuitenbrouwer, M, 1996. ‘Nederland en de Mensenrechten, 1795–1995’, in Kuitenbrouwer and Leenders (eds.), Geschiedenis Van De Mensenrechten: Bouwstenen Voor Een Interdisciplinaire Benadering, 156–201. Hilversum: Verloren. 1999. ‘Nederland Gidsland? De Ontwikkelingssamenwerking van Nederland en Gelijkgezinde Landen, 1973–1985’, in Nekkers and Malcontent (eds.), De Geschiedenis Van Vijftig Jaar Nederlandse Ontwikkelingssamenwerking 1949–1999, 183–200. Den Haag: SDU Uitgevers. Landman, Todd, 2009. ‘Measuring Human Rights’, in Human Rights: Politics and Practice, 46–58. Oxford University Press. Lanotte, Johan Vande and Yves Haeck, 2005. ‘Hoofdstuk 3. Ontstaansgeschiedenis, Ondertekening en Inwerkingtreding van het Europees Verdrag voor de Rechten van de Mens’, in Handboek EVRM. Deel 1 Algemene Beginselen. Vol. 1: 57–83. Antwerp: Intersentia. Lijphart, Arend, 1968. ‘The Politics of Accommodation: Pluralism and Democracy in the Netherlands’, in Daalder and Irwin (eds.), Politics in the Netherlands: How Much Change? University of California Press. 1989. ‘From the Politics of Accommodation to Adversarial Politics in the Netherlands: A Reassessment’, in Daalder and Irwin (eds.), Politics in the Netherlands: How Much Change?, 139–153. London: Frank Cass. Lucas, Stephen E., 1994. ‘The ‘Plakkaat Van Verlatinge’: A Neglected Model for the American Declaration of Independence’, in Hofte and Kardux (eds.), Connecting Cultures: The Netherlands in Five Centuries of Transatlantic Exchange, 189–207. VU Amsterdam University Press. Luyendijk, Joris, 2010. Je hebt het niet van mij, maar . . . Een maand aan het Binnenhof. Amsterdam: Podium. Malcontent, Peter and Floribert Baudet, 2003. ‘The Dutchman’s Burden? Nederland en de Internationale Rechtsorde in de 20e Eeuw’, in De Graaff, Hellema and Van der Zwan (eds.), De Nederlandse Buitenlandse Politiek in De Twintigste Eeuw, 69–105. Amsterdam: Boom. Maslowski, R. et al., 2010. Eerste Bevindingen International Civics and Citizenship Education Study: Rapportage Voor Nederland. Gronings Instituut voor Onderzoek van Onderwijs. Massoud, Mark Fathi, 2011. ‘Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan’, Law and Society Review 45, no. 1: 1–32. Meintser, Nonja, 2010. Wordt Vervolgd: Experts over Trends en Ontwikkelingen in Huiselijk Geweld. Utrecht: Movisie. Merry, Sally Engle, 2006a. Human Rights and Gender Violence: Translating International Law into Local Justice. University of Chicago Press. 2006b. ‘Transnational Human Rights and Local Activism: Mapping the Middle’, American Anthropologist 108, no. 1: 38–51, internal-pdf://Merry am anthropologist-2353419050/Merry am anthropologist.pdf. 215

BIBLIOGRAPHY

Merry, Sally Engle et al., 2009. ‘Human Rights in the Imperial Heartland’, in Maskovsky and Susser (eds.), Rethinking America: The Imperial Homeland in the 21st Century, 49–65. Herndon: Paradigm Publishers. 2010. ‘Law from Below: Women’s Human Rights and Social Movements in New York City’, Law & Society Review 44, no. 1. Mertus, Julia, 2008. Human Rights Matters: Local Politics and National Human Rights Institutions. Stanford University Press. Miller, Hannah, 2010. ‘From “Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice’, The International Journal of Human Rights 14, no. 6: 915–931. Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, 2008. De Onzichtbare Grondwet: Woord- en Beeld Verslag van het Symposium op 27 Februari 2008. The Hague: Ministry of the Interior and Kingdom Affairs. 2009. Verantwoord Burgerschap, Een Kwestie van Geven en Nemen. The Hague: Ministry of the Interior and Kingdom Affairs. Ministerie van Buitenlandse Zaken, 2009. Mensenrechtenrapportage 2009. The Hague: Ministry of Foreign Affairs. 2010. Mensenrechtenrapportage: Rapportage over de Uitvoering van de Mensenrechtenstrategie ‘Naar Een Menswaardig Bestaan’ in 2010. The Hague: Ministry of Foreign Affairs. 2011. Mensenrechtenrapportage: Rapportage over de Uitvoering van de Mensenrechtenstrategie ‘Verantwoordelijk voor Vrijheid’. The Hague: Ministry of Foreign Affairs. Ministerie van Justitie, 2002. Prive Geweld, Een Publieke Zaak: Een Nota over de Gezamenlijke Aanpak Van Huiselijk Geweld, The Hague: Ministry of Justice. 2009. Verklaring Van Verbondenheid. The Hague: Ministry of Justice. Ministerie van VROM, 2007. 1ntegratienota 2007–2011: Zorg dat je erbij hoort! www.rijksoverheid.nl/zorg-dat-je-erbij-hoort/w1009. Ministry of Foreign Affairs, 1979. Human Rights and Foreign Policy: Memorandum Presented to the Lower House of the States General of the Kingdom of the Netherlands on 3 May 1979 by the Minister for Foreign Affairs and the Minister for Development Co-Operation. The Hague: Ministry of Foreign Affairs. 2007. Human Dignity for All: A Human Rights Strategy for Foreign Policy. The Hague: Ministry of Foreign Affairs. 2011. Responsible for Freedom. The Hague: Ministry of Foreign Affairs. Molin, Lars O., 2011. Developing Indicators to Raise Awareness of Human Rights at Local and Regional Level: The Congress of Regional and Local Authorities. Moyn, Samuel, 2010. The Last Utopia: Human Rights in History. Harvard University Press. 216

BIBLIOGRAPHY

Naeye, J., D. W. Steenhuis and P. J. van Zunderd, 2011. Van Huiselijk Geweld naar Moord: Verslag van het Onderzoek naar de Politie en Justitiecontacten met Fred B. Voorafgaande aan zijn Aanhouding als Verdachte van de Dubbele Moord in Middelburg Op 19 Juli 2011. The Hague: College van procureurs-Generaal. Nelken, David, 2007a. ‘Three Problems in Employing the Concept of Legal Culture’, in Bruinsma and Nelken (eds.), Explorations in Legal Cultures. Special Issue Recht der Werkelijkheid, 11–28. The Hague: Reed Business. 2007b. ‘Legal Culture’, in Clarke (ed.), Encyclopedia of Law and Society, 369–374. London: Sage Publications. Neuman, Gerald L., 2003. ‘Human Rights and Constitutional Rights: Harmony and Dissonance’, Stanford Law Review 55: 1863. Nieuwenhuis, A. J., 2006. Over de Grens van de Vrijheid van Meningsuiting: Theorie, Rechtsvergelijking, Discriminatie, Pornografie. Nijmegen: Ars Aequi Libri. O’Flaherty, Michael., 2006. ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’, Human Rights Law Review 6, no. 1: 27–52. Onderwijsraad, 2003. Onderwijs en Burgerschap. The Hague: Onderwijsraad. 2012. Verder met Burgerschap in het Onderwijs. The Hague: Onderwijsraad. Oomen, Barbara, 2009. ‘Mensen- En Kinderrechten: De Gemiste Kans van het Burgerschapsonderwijs?’, Nederlands Tijdschrift Voor Onderwijsrecht 2: 100–117. 2011. ‘Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands’, Human Rights Quarterly 3, no. 1: 175–200. Oomen, B., T. Van den Brandt, and R. Bartels, 2008. ‘Ondanks (Verdrags) Verplichtingen Geen Mensenrechteneducatie in Nederland’, Nederlands Juristenblad 43, no. 5: 2697–2699. Oomen, Barbara and Marloes Vrolijk, 2010. Inspiratie voor Mensenrechteneducatie: Democratisch Burgerschap En Mensenrechten in Het (Burgerschapsonderwijs). 50th edn. Leiden: Stichting NJCM-Boekerij. Pakes, Francis, 2004. ‘The Politics of Discontent: The Emergence of a New Criminal Justice Discourse in the Netherlands’, The Howard Journal of Criminal Justice 43, no. 3: 284–298. Pelle, J., 1998. In De Staatsrechtgeleerde Wereld: De Politieke Geschiedenis Van Hoofdstuk 1 Van De Grondwet 1983. Gouda Quint. Peters, Jit, 2010. ‘Afscheidsrede: “Van Wie Zijn Zij, De Ambtenaren” ’. University of Amsterdam. Pinto-Duschinsky, Michael, 2011. Bringing Rights Back Home: Making Human Rights Compatible with Parliamentary Democracy in the UK. London: Policy Exchange, 2011. 217

BIBLIOGRAPHY

Post, H. A., 2009. In Strijd met de Roeping der Vrouw. De Staatkundig Gereformeerde Partij en het Vrouwenkiesrecht 2009. Heerenveen: Groen. Prins, Baukje and Sawitri Saharso, 2010. ‘From Toleration to Repression: The Dutch Backlash Against Multiculturalism’, in Vertovec and Wessendorf (eds.), The Multiculturalism Backlash: European Discourses, Policies and Practices, 72–91: New York: Routledge. Pulles, G. W. J., 2011. ‘Onduidelijkheid over de Rechtstreekse Werking van het Kinderrechtenverdrag’, Nederlands Juristen Blad 28/1: 173. Putnam, Robert, 1988. ‘Diplomacy and Domestic Politics: The Logic of TwoLevel Games’, International Organization 42: 427–460. Rajagopal, Balakrishnan, 2003. International Law from Below: Development, Social Movements and Third World Resistance. Cambridge University Press. Reiding, Hilde, 2007. The Netherlands and the Development of International Human Rights Instruments. Antwerp: Intersentia. Risse, Thomas, Stephen C. Ropp and Kathryn A. Sikkink, 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge University Press. Römkens, R. G., 1992. Gewoon Geweld? Omvang, Aard, Gevolgen en Achtergronden van Geweld Tegen Vrouwen in Heteroseksuele Relaties 1992. Amsterdam: Swets & Zeitlinger. Romkens, Rene, 2010. ‘Omstreden Gelijkheid: Over de Constructie van (on) Gelijkheid van Mannen en Vrouwen in Partnergeweld’, in WODC (ed.) Justitiele Verkenningen: Huiselijk Geweld, 36 no. 8, 11–32. The Hague: Boom. Roos, Simone and Dieter Verhue, 2009. Bouwstenen voor Burgerschap: Wat Betekent Burgerschap voor Lager Maatschappelijk Betrokkenen?. Amsterdam: Bureau Veldkamp. Rosenberg, Gerald N., 2008. The Hollow Hope: Can Courts Bring about Social Change? University of Chicago Press. Rosier, Theo, 1997. ‘Vrijheid Van Meningsuiting en Discriminatie in Nederland en Amerika’. Dissertation, University of Utrecht. Roudometof, Victor, 2005. ‘Transnationalism, Cosmopolitanism, and Glocalization’, Current Sociology 53, no. 1: 113–135. Schalken, Tom, 2011. Het Eetcomplot: De Rechter als Verdachte in het WildersProces. Amsterdam: Van Oorschot. Scheffer, Paul, 2000. ‘Het Multiculturele Drama’. NRC Handelsblad. Scheingold, Stuart A. 1974. The Politics of Rights: Lawyers, Public Policy and Political Change. New Haven & London: Yale University Press. Schinkel, Willem, 2008. De Gedroomde Samenleving. Kampen: Klement. Schoo, H. J., 2000. De Verwarde Natie: Dwarse Notities over Immigratie in Nederland. Prometheus: Amsterdam. 218

BIBLIOGRAPHY

Schrijver, Nico, 2010. ‘A Missionary Burden or Enlightened Self-Interest? International Law in Dutch Foreign Policy’, Netherlands International Law Review 57: 209–244. SGP, 2006. Man En Vrouw Schiep Hij Hen. Short, Damian, 2009. ‘Sociological and Anthropological Approaches’, in Goodhart (ed.) Human Rights: Politics and Practice, 93–108. Oxford University Press. Simmons, Beth A., 2009. Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press. SLO, 2010. Stimuleringsplan voor de Integratie van Mensenrechteneducatie in het Funderend Onderwijs. Enschede: Stichting Leerplanontwikkeling. Somers, Margaret R. and Christopher N. J. Robert, 2008. ‘Toward a New Sociology of Rights: A Genealogy of “Buried Bodies” of Citizenship and Human Rights’, Annual Review of Law and Social Science: 385–425, internalpdf://Sociology rights annurev.lawsocsci.2.081805–1305534731/Sociology rights annurev.lawsocsci.2.081805.pdf. Soohoo, Cynthia, Catherine Albisa and Martha Davis, 2007. Bringing Human Rights Home: A History of Human Rights in the United States. University of Pennsylvania Press. Speed, Shannon, 2006. ‘At the Crossroads of Human Rights and Anthropology: Toward a Critically Engaged Activist Research’, American Anthropologist 108, no. 1: 66–76. Spijkerboer, Thomas, 2007. Zeker Weten: Inburgering en de Fundamenten van het Nederlandse Politieke Bestel 2007. The Hague: SDU Uitgevers. Staatscommissie Grondwet, 2010. Rapport Staatscommissie Grondwet. The Hague: Staatscommissie Grondwet. Steenhuis, Paul, 2008. ‘De Droom Van Oomen’. NRC Handelsblad. Strijkers, M. J., 2008. ‘Seksuele Gerichtheid en Burgerlijke Staat’, in CGB (ed.), Gelijke Behandeling: Oordelen en Commentaar 2007, 121–135. Nijmegen: Wolf Legal Publishers. Ten Dam, Geert, Femke Geijsel, Rene Reumerman and Guuske Ledoux, 2010. ‘Burgerschapscompetenties: De Ontwikkeling van een Meetinstrument’, Pedagogische Studien. Ten Napel, H. M. Th. D., 2002. ‘Een Nederlandse Taliban?’, in Van Manen (ed.), De Multiculturele Samenleving en het Recht, 151–157. Amsterdam: Ars Aequi Libri. Terlouw, Ashley and Janneke Gerards, eds., 2012. Amici Curiae, Adviezen aan het Europese Hof voor de Rechten van de Mens. The Hague: Van Stockum. Te Velde, Henk, 2010. Van Regentenmentaliteit tot Populisme: Politieke Tradities in Nederland. Amsterdam: Bert Bakker. Thomas, Dorothy Q. and Michele E. Beasley, 1993. ‘Domestic Violence as a Human Rights Issue’, Human Rights Quarterly 15, no. 1: 36–62.

219

BIBLIOGRAPHY

Tibbits, Felicia, 2005. ‘Transformative Learning and Human Rights Education: Taking a Closer Look’, Intercultural Education 16, no. 2: 107–113. Tolley, Howard, 1990. ‘Interest Group Litigation to Enforce Human Rights’, Political Science Quarterly 105, no. 4: 617–638. Toonen, Theo, Gerrit Dijkstra and Frits Van der Meer, 2006. ‘Modernization and Reform of Dutch Waterboards: Resilience Or Change?’, Journal of Institutional Economics 2, no. 2 : 181–201. Uitermark, Justus, 2010. ‘Dynamics of Power in Dutch Integration Politics’. PhD Thesis, University of Amsterdam. United Nations, UNESCO, and OHCH, 2006. Plan of Action: World Programme for Human Rights Education. New York and Geneva: UNESCO. Van Almelo, Lex, 2003. Onze Grondwet: De Rechtsstaat en de Grondrechten Verklaard Voor Nieuwe Nederlandse Burgers. The Hague: SDU Uitgevers. Van Berkum, J. W., 2007. ‘Supergrondrecht Bestaat Niet’. Reformatorisch Dagblad. Van de Donk, W. J. J., A. P. Donkers, G. J. Kronjee, and R. J. J. Plum, eds., 2006. Geloven in het Publieke Domein: Verkenningen van een Dubbele Transformatie. Amsterdam University Press. Van den Burg, Wibren, 2009. Het Ideaal van de Neutrale Staat: Inclusieve, Exclusieve en Compenserende Visies op Godsdienst en Cultuur (The Ideal of the Neutral State: Inclusive, Exclusive and Compensatory Views on Religion and Culture). The Hague: BJU. Van der Vyver, Johan, 2001. ‘American Exceptionalism: Human Rights, International Criminal Justice and National Self-Righteousness’, Emory Law Journal 50: 775–832. Van Ditzhuyzen, R., A. E. Kersten, A. L. M. Van Zeeland, and A. C. Van der Zwan, eds., 1998. Tweehonderd Jaar Ministerie van Buitenlandse Zaken. The Hague: SDU Uitgevers. Van Gends, S. J. A. M. and G. J. Visser, eds., 2004. Artikel 12 Sv. Amsterdam: Ars Aequi Libri. Van Gunsteren, Herman, 1998. A Theory of Citizenship: Organizing Plurality in Contemporary Democracies. Boulder: Westview Press. Van Heerikhuizen, Annemarie, 1998. ‘Pioniers van een Verenigd Europa: Bovennationaal Denken in het Nederlandse Parlement (1946–1951)’. Doctoral thesis, University of Amsterdam. Van Keulen, Mendeltje, 2006. Going Europe or Going Dutch: How the Dutch Government Shapes European Union Policy. Amsterdam University Press. Van Panhuys, H. F., 1953. ‘The Netherlands Constitution and International Law’, American Journal of International Law 47, no. 4: 537–558. Van Panhuys, H. F. et al. eds., 1978. International Law in the Netherlands. The Hague: T.M.C. Asser Institute. Van Vollenhoven, Cornelis, 1910. ‘Roeping Van Holland’, in Van Vollenhoven (ed.), Mr. C. Van Vollenhoven’s Verspreide Geschriften. Vol. II, 144–157. Haarlem: H.D. Tjeenk Willink. 220

BIBLIOGRAPHY

1919. ‘Holland’s International Policy’, Political Science Quarterly 34, no. 2: 467–478. Van Waarden, Frans, 2009. ‘Power to the Legal Professionals: Is there an Americanization of European Law?’, Regulation and Governance 3, no. 3: 197–216. Van Waarden, Frans and Youri Hildebrand, 2009. ‘From Corporatism to Lawyocracy? On Liberalization and Juridification’, Regulation and Governance 3, no. 3: 259–286. Veen, H. van der and S. Bogaerts, 2010. Huiselijk Geweld in Nederland. Overkoepelend Syntheserapport van het Vangst-Hervangst-, Slachtoffer-en Daderonderzoek 2007–2010. The Hague: WODC. Veraart, W., 2010. ‘Beledigen Kan Alleen in Context’, Nederlands Juristenblad no. 12: 724–730. Vereniging Gereformeerd Schoolonderwijs, 2008. Visienota Homoseksualiteit. Ridderkerk: VGS, internal-pdf://Lit VGS visienota 2008–3799113575/ Lit VGS visienota 2008.doc. Verkaaik, Oskar, 2009. ‘The Cachet Dilemma: Ritual and Agency in New Dutch Nationalism’, American Ethnologist 37, no. 1: 69–82, internalpdf://Verkaaik citizenship rituals-2156767489/Verkaaik citizenship rituals.pdf. Verkuyten, Maykel, 2010. Identiteit en Diversiteit: De Tegenstellingen Voorbij 2010. Amsterdam University Press. Vermeulen, Ben, 2007. Vrijheid, Gelijkheid, Burgerschap: Over Verschuivende Fundamenten van het Nederlandse Minderhedenrecht En – Beleid. The Hague: SDU Uitgevers. Visser, Jelle and Anton Hemerijck, 1997. ‘A Dutch Miracle’: Job Growth, Welfare Reform and Corporatism in the Netherlands. Amsterdam University Press. Von Bogdandy, Armin, 2008. ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’, International Journal of Constitutional Law 6, no. 3–4: 397–413. Voorhoeve, Joris J. C., 1985. Peace, Profits and Principles: A Study of Dutch Foreign Policy. Leiden: Martinus Nijhoff. VVD–CDA (Volkspartij voor Vrijheid en Democratie, Christen Democratisch Appèl), 2010. Vrijheid en Verantwoordelijkheid: Regeerakkoord VVD–CDA. The Hague, 2010. Walker, Neil, 2002. ‘The Idea of Constitutional Pluralism’, Modern Law Review 65, no. 3: 317–359. Weiler, J. H. H., 1999. The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ And Other Essays on European Integration. Cambridge University Press.

221

BIBLIOGRAPHY

Wilson, Richard, 1997. ‘Human Rights, Culture & Context: An Introduction’, in Wilson (ed.), Human Rights, Culture & Context: Anthropological Perspectives, 227. Chicago: Pluto Press. WODC, ed., 2010. Justitiele Verkenningen: Huiselijk Geweld. 36 no. 8, The Hague: Boom. WRR, 2002. De Toekomst van de Nationale Rechtsstaat. Rapporten aan de Regering. WRR (Wetenschappelijke Raad voor het Regeringsbeleid), The Hague: WRR. 2003. Waarden, Normen en de Last van het Gedrag. Amsterdam University Press. 2007. Identificatie met Nederland. Rapporten aan de Regering, Vol. 79. The Hague: WRR/Amsterdam University Press. 2010. Aan Het Buitenland Gehecht: Over Verankering en Strategie van het Nederlands Buitenlandbeleid. Vol. 85. Amsterdam University Press. Wyngaert, C., 2006. Strafrecht, Strafprocesrecht en Internationaal Strafrecht. Antwerp: Maklu.

222

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acquital (in Wilders case), 119–120, 122–123 Act of Abjuration, 54, 61 actors See human rights actors Algeria, 116 American Anthropological Association, 21 Amnesty International, 84, 198 Andeweg, R., 66 Angola, 136 Article 1 (Dutch constitution), 62, 172–173, 176 Article 1 (Dutch non-discrimination coalition), 18 Article 2 (ICCPR), 176 Article 7 (CEDAW), 174, 175, 182–183, 188 Article 7 (Dutch constitution), 111 Article 10 (ECHR), 111–112 Article 12 (Dutch Criminal Code), 118–119, 120, 201 Article 14 (ECHR), 176 Article 19 (Dutch constitution), 18 Article 23 (Dutch constitution), 61, 176 Article 26 (ICCPR), 176 Article 304 (Dutch Criminal Code), 132 Article 90 (Dutch constitution), 31–37 Article 91 (Dutch constitution), 37–39, 195 Article 92 (Dutch constitution), 40–44 Article 93 (Dutch constitution), 45–48, 194–195 Article 94 (Dutch constitution), 48–50 Asser, T., 32 As-Siddieq Islamic School, 79, 107–110. See also reformed schools assimilationism. See also tolerance (gedogen) in citizenship, 66–79 in Dutch politics, 56 Balkenende, J. P., 182 Ballin, Hirsch, 146, 192

Baudet, T., 191, 192 Benefits Entitlement Act, 153, 164 bevindelijk See reformed communities Bill of Rights (Dutch constitution), 28–29 Blankenburg, E., 63 Bovens, M., 88 Brasil, 136 Bruinsma, F., 63 case of the century See Wilders case CAT See Convention Against Torture (CAT) Catholics, 7, 36, 50. See also reformed communities CEDAW See Committee on the Elimination of Discrimination against Women (CEDAW) CERD See Convention on the Elimination of Racial Discrimination (CERD) CESCR See Committee on Economic Social and Cultural Rights (CESCR) Charter of Responsible Citizenship, 72–74. See also values chicken and egg game See International Covenant on Economic Social and Cultural Rights (ICESCR) Child Protector (Kinderombudsman), 94 Churchill, Winston, 34 cities See municipalities citizenship See immigrants citizenship (burger) Dutch interpretation of, 66–79, 100 insertion of human rights in education, 99–101 Civic Integretion Act, 69 Clifford, B., 83 Committee on Economic Social and Cultural Rights (CESCR), 138, 147–148, 151

223

INDEX

Committee on the Elimination of Discrimination against Women (CEDAW) and suffrage, 48, 102, 166, 181–183, 188 and torture, 14 Article 7, 174, 175, 182–183, 188 equal treatment, 172 human rights into domestic policy, 18, 134–135, 137, 139, 157 monitoring in, 85 perceptions of, 86 constitution (Dutch). See also international rights law, Criminal Code as incomplete rights catalogue, 27–31 being invisible, 52–53 Bill of Rights, 28–29 prohibition of review, 48–49, 204 sober character of, 30 social rights interpretation, 146, 148–149 constitution (Dutch) articles 19, 18 90, 31–37 91, 37–39, 195 92, 40–44 93, 45–48, 194–195 94, 48–50 constitution (Dutch) features and treaties, 27, 37–39, 48–50 individuals subject to international law, 45–48 individuals subjects of international law, 27 promotion of international over domestic, 27, 30–37 sovereignty transfer to international organizations, 40–44 unlimited freedom of expression, 111 constitution (European), 43 Contrario (NGO), 172 Convention Against Torture (CAT), 14, 85 Convention on the Elimination of Racial Discrimination (CERD) Dutch influence on, 8 monitoring in, 85 protect from discrimination, 111, 112–113, 116, 119 snuck into legislation, 17, 83 Convention on the Rights of the Child (CRC), 18, 85, 89, 103, 138, 157 Council of Europe, 81, 96, 163, 200 Council of Europe Commission against Racism and Intolerance (ECRI), 87, 116–117 Council of State See executive (Dutch) Cowan, J., 15 CRC See Convention on the Rights of the Child (CRC) Criminal Code. See also constitution (Dutch) Article 12, 118–119, 120, 201

224

Article 304, 132 set limits of freedom of expression, 111 Daalder, H., 54 Davis, M., 17, 83 Declaration of 1948 See Universal Declaration of Human Rights (UDHR) Denmark, 12 Different (NGO), 171 discrimination. See also Islamophobia against homosexuals, 78–79, 166, 170–172, 175–180, 184–188 against women, 166, 168–169, 173–175 and Charter of Responsible Citizenship, 74 right to equal treatment, 8, 36, 62, 111 domestic violence and treaties, 139–141, 144 definition, 131 Dutch policies, 139–141, 200 government action to prevent, 132–134 in immigrant communities, 137–139 international fundamental rights law, 134–137 murders, 128–131, 141–143, 144–145 statistics, 131–132 Donner, A. M., 46 Drees, W., 8, 28, 29, 37 Dutch Association of Jurists, 45 East India Company (VOC), 54 East Timor, 3 ECHR See European Court of Human Rights (ECHR) ECOSOC See United Nations Economic and Social Council (ECOSOC) ECRI See Council of Europe Commission against Racism and Intolerance (ECRI) education civic, 75–79, 94 freedom of, 7, 29, 35, 61, 87, 173, 180 human rights, 4, 7, 80–82, 84, 203 school wars (schoolstrijd), 61 EJR See European Court of Justice (EJC) El Salvador, 136 Enthoven, G., 91 equal treatment (right to), 36, 62, 172, 176–177, 180, 184–189 Equal Treatment Act (ETA), 78, 173, 177–180, 184–188 Erasmus, D., 10, 54 Ertürk, Yakin, 138–139 ETA See Equal Treatment Act (ETA) EU See European Union (EU) EU Directive on Equal Treatment in Employment and Education, 176–177, 184–189

INDEX

European Convention for the Protection of Human Rights and Fundamental Freedoms, 13, 34–37, 58, 111 European Court of Human Rights (ECHR) and domestic violence, 135 and rights talk, 3 and womens suffrage rights, 175, 183–184 Article 8, 157–158 freedom of expression in, 107, 111–112 in EU law, 44 influence on Netherlands, 30, 66, 139 judicial review of, 30, 49 resistance to, 8, 19, 191–193 self-executing, 47 European Court of Justice (EJC), 34, 42, 44, 46, 187 European Union (EU) effect of Article 93 on, 46 mandating state action on discrimination, 112 Netherlands yielding sovereignty to, 41–44 exceptionalism, 5–6 executive (Dutch), 149–150, 159, 161–162. See also parliament (Dutch), parliament (Dutch), judiciary (Dutch) external enforcement, 3, 4, 85–87 Family Reunification case, 44 Féret v. Belgium case, 112 Fischer, Pim, 155–157 Fitna (film), 4, 109, 115–116. See also Islamophobia Fleuren, J. W. A., 45 foreign policy. See also human rights exportism, guiding nation committments made in isolation of others, 87–90 Dutch, 33–34, 59, 190 influence of NGOs, 84–85 Fortuyn, P., 56, 69, 107 Foundation for Curriculum Development, 100 France, 54, 136 freedom. See also right of association, 28, 29 of education, 7, 29, 35, 61, 87, 173, 176, 180 of expression, 60–61, 105, 107, 111, 113 of religion, 27–28, 61, 115, 173, 180 of speech, 105 of the press, 27 Gardbaum, S., 13 Germany, 63 Goodale, M., 21 Grotius, H., 32 guiding nation, 9, 41, 51, 55, 199. See also foreign policy

Halliday, S., 12 Halme-Tuomisaari, M., 12, 17 Hammarberg, Thomas, 187 Handyside case, 112 Hauer case, 42 Hirsi Ali, A., 108 home-coming (of rights), 2, 11–13, 14–16, 195–199. See also internationalism homosexuality discrimination against, 175–180, 184–188 in reformed community, 78–79, 166, 170–172, 175–180 Huizinga, J., 68 human rights. See also social rights, rights talk giving meaning to, 199–203 history of Dutch engagement, 6–9 in social and political discourse, 53, 56–79 key forces in modern global politics, 2–4 legal qualities of, 13–14, 115–117, 133–134 paradox of in Netherlands, 1–2, 28, 30, 94, 97, 106, 167, 180, 191, 194–195 procedural obstacles to, 201 sociology of, 203–204 human rights actors civil servants, 87–90 commissions, 92–93 educational materials producers, 93 importance of, 17–18, 201–202 individuals, 17, 83 international monitoring bodies, 85–87 lawyers, 155–158, 165 NGOs, 82–85, 94, 102, 174, 181–183 parliamentarians, 90–91 teachers, 94–95, 101–102 Human Rights Council Universal Periodic Review (UPR), 4–5, 85, 87, 116, 136, 138 human rights education, 4, 7, 80–82, 84, 203 human rights exportism, 2, 4–11, 15, 152–153, 199. See also foreign policy human rights implementation strategies broad support base, 101–102 generating support, 81–99 litigation, 16, 101–103 vernacularization, 99–101 waving with treaties, 95–98 human rights tulip, 1, 98, 190, 205 Human Rights Watch, 71 Hurenkamp, M., 68 Hynes, P., 21 ICC See International Criminal Court (ICC) ICCPR See International Covenant on Civil and Political Rights (ICCPR) ICESCR See International Covenant on Economic Social and Cultural Rights (ICESCR) Ignatieff, Michael, 5

225

INDEX

immigrants. See also pillizaration, natives and domestic violence, 137–139, 141 assimilationism, 56, 69–72 social rights for, 147–148, 154–164 implementation (rights) judiciary in, 102–103, 113–114 municipalities in, 160, 162–164 NGOs in, 153, 158–159, 165 parliament (Dutch) in, 160–162, 193–195, 202–203 social rights in treaties, 148–152 strategies, 16, 95–103 incomplete rights catalogue (Dutch constitution), 27–31 incorporation theory, 47–48 India, 4 Indonesia, 8, 115 Integration Abroad Act, 69 International Court of Justice, 35 International Covenant on Civil and Political Rights (ICCPR), 8, 14, 18, 30, 47, 85, 139, 148, 194. See also Universal Declaration of Human Rights (UDHR) International Covenant on Economic Social and Cultural Rights (ICESCR). See also Universal Declaration of Human Rights (UDHR), Optional Protocol to the ICESCR (OPCESCR) and social rights, 146, 147–152 monitoring in, 85 not binding, 30, 48, 102–103 right to shelter in, 14 International Criminal Court (ICC), 1, 3, 82 international rights law. See also treaties; constitution (Dutch) balance between rights, 180–188 definition, 13 domestic violence, 134–137 Dutch input to, 8–9 gaps between principles and practice, 10–11 research methods in, 19–21 social and political duties, 14–16, 150–151 internationalism, 8–11, 25, 41, 50. See also home-coming (of rights) Iran, 115, 116 Iraq, 136 Islamic culture. See also religion clamping down on, 69, 70, 75–77 fundamentalism, 108–109 lack of legal standing in Dutch courts, 123–125 Islamophobia, 106, 107–110. See also discrimination; Fitna (film) Jefferson, Thomas, 27 Jordan, 115

226

judiciary (Dutch). See also parliament, executive (Dutch) ICESCR application in Netherlands, 150, 157–158 in human rights implementation, 63–64, 102–103, 113–114 lack of authority in, 117–120, 122 on trial in Wilders case, 106, 120–123 plaintiff legal standing, 123–125 social rights interpretation, 174–175, 203–204 juridification (fear of), 65, 196, 201 Kagan, R., 63 Kennedy, D., 17, 55 Klompé, M., 7 Kosovo, 3 Krommendijk, J., 86 Kuitenbrouwer, M., 28 language See rights talk League of Nations, 6 legal cases. See also rights violations Family Reunification case, 44 Féret v. Belgium case, 112 Handyside case, 112 Hauer case, 42 Maimonides case, 176 No Child Out in the Streets case, 154–164 Norwood v. United Kingdom case, 112 Ramsahai case, 136 Raphael Lemski case, 83 Van Dijke case, 114 Van Gend en Loos case, 42, 46 Wilders case, 105–107, 117–125, 200 legal consciousness, 53, 56–58, 106, 127. See also rights talk, legal culture legal culture. See also rights talk, legal consciousness consensualism in, 62–67, 201 history of, 53–56 legal cuture, 15 legislature See parliament (Dutch) Lisbon Treaty, 42, 43 Luyendijk, J., 91 Macedonia, 136 Maimonides case, 176 Malaysia, 116 Malcontent, Peter, 10 media dismissive to plaintiff human rights, 126 social rights, 159, 193 spectacle of Wilders trial, 117, 120 Merry, S. E., 12, 99, 100 Mertus, J., 12 monist tradition, 45–48, 180

INDEX

monitoring (of rights), 3, 4, 85–87 Moon, Ban Ki (UN Secretary General), 115 Moszkovicz, B., 121 multiculturalism, 54–56, 67–68 municipalities and social rights implementation, 160, 162–164 human rights city, 191, 197–199, 203 murder domestic abuse, 128–129 Fortuyn, 108 Schroevers, 141–143, 145 Van Gogh, 108 Muslim See Islamic culture National Human Rights Institute (NHRI), 11, 94, 190, 195–197 natives, 72, 77. See also immigrants naturalization ceremony See citizenship Nelken, D., 53 Netherlands as first to have Human Rights Council review, 4–5 litigation in, 63, 64 multiculturalism in, 54–56, 67–68 paradox of rights, 1–2, 28, 30, 94, 97, 106, 167, 191, 194–195 policies in domestic abuse, 139–141 reluctance to join European Convention of Human Rights, 34–35 role in formulating international human rights law, 32–34, 136–137 secularization in, 170, 202 Netherlands Platform on Human Rights Education (NPHRE), 95–103 NGOs as human rights actors, 82–85, 94, 102, 174, 181–183 influence on foreign policy, 84–85 social rights implementation, 153, 158–159, 165 NHRI See National Human Rights Institute (NHRI) Nicholas II (Russian czar), 32 Nigeria, 136 No Child Out in the Streets case, 154–164 Norwood v. United Kingdom case, 112 NPHRE See Netherlands Platform on Human Rights Education (NPHRE) Office of the High Commissioner on Human Rights (OHCHR), 4, 81, 107, 115, 190 OHCHR See Office of the High Commissioner on Human Rights (OHCHR) Onze Weg (organization), 172 Optional Protocol to the ICESCR (OPCESCR), 152–154, 164

Pakistan, 115, 116 paradox (Dutch human rights), 1–2, 28, 30, 94, 97, 106, 167, 180, 191, 194–195 parliament (Dutch). See also judiciary (Dutch), executive (Dutch) and internationalism, 36–39 and social rights implementation, 160–162, 193–195, 202–203 as human rights actor, 90–91, 98–99, 113 decision-making, 64–66 Peace Palace, 1, 33 Peters, J., 88 pillizaration, 169. See also immigrants political analysis. See also survey research for Dutch international idealist tradition, 9–11 of human rights compliance, 15 on international rights, 11–13 social constructivist, 15 Pulles, G. W. J., 157 Putnam, R., 180 Rajagopal, B., 19 Ramsahai case, 136 Raphael Lemski case, 83 ratification (treaty), 5, 37–39 Red Cross, 84 Refoamders (NGO), 171 reformed communities. See also religion, Catholics and homosexuality, 78–79, 166, 170–172, 175–180 and women voting, 173–175 history of, 168 statistics on, 166–167 Reformed Political Party (SGP), 167, 168–169, 174, 178, 181, 183–184 reformed schools. See also As-Siddieq Islamic School civic education in, 78–79 state funding of, 169 religion. See also reformed communities, Islamic culture freedom of, 27–28, 61, 115, 173, 180 marginalization in secular society, 170 responsibility. See also values importance to British, 73–74 importance to Dutch, 72–73, 74, 101 state in domestic violence, 133–134, 135–136 right. See also freedom to assemble, 7 to equal treatment, 8, 36, 62, 111, 176–177, 180, 184 to fair trial, 29 to life, 29 to privacy, 29 to shelter, 154–164 to vote, 173–175

227

INDEX

rights resistance, 19 rights talk, 2–4, 18–19, 65, 203. See also legal culture, legal consciousness, human rights rights violations, 9, 11. See also legal cases Risse, T., 18 Roosevelt, Eleanor, 2 Roosevelt, Theodore, 33 Rosenberg, G., 103 Rotterdam See municipalities Rutte, M., 172, 181 Rwanda, 3 Sachs, A., 146 Sadek Tahi, Amira, 128–130, 144–145 Sadr, Shadi, 1 Saudi Arabia, 115, 116 Scandinavian countries, 12, 17 Schalken, Tom, 120–122 Scheffer, P., 56 Schinkel, W., 74 Schmidt, P., 12, 14, 69 school wars (schoolstrijd), 61 Second World War See World War II secularization, 170, 202 Serrarens, Jos, 31–32, 33, 49 sexual equality See equal treatment (right to) SGP See Reformed Political Party (SGP) Simmons, B., 15 slave trade, 10 social rights. See also human rights for immigrants, 147–148, 154–164 implementation, 148–152, 160, 162–164 in judiciary, 174–175, 203–204 international idealist tradition, 8–11 media, 159, 193 NGO in, 153, 158–159, 165 parliament in, 160–162, 193–195, 202–203 problems, 1, 3, 4–5, 147–148 sociology of human rights, 203–204 sole ground clause, 167, 177–180, 184–188 Soohoo, C., 12 South Africa, 136 sovereignity Dutch indifference to, 26, 192 transfer to international organizations, 40–44 Spinoza, B., 10, 54 Straw, J., 74 Submission (film), 108 suffrage (women’s) and CEDAW, 48, 102, 166, 181–183, 188 in ECHR, 175, 183–184 in reformed communities, 173–175 universal, 55 survey research. See also political analysis domestic violence, 132

228

Dutch constitution knowledge, 52, 56–58, 59 Muslim discrimination, 109–110 of human rights, 57, 58–59, 106 on international treaties, 58 religious opinions, 169 responsibility and values over rights, 73 values, 59–62 world human rights, 59 Taliban on clogs See reformed communities Te Velde, H., 65 Teitgen, P. H., 34 test (citizenship), 69–70 The Educational Council, 92 The Hague, 1, 32, 35, 56, 88 Thorbecke, J. R., 27, 48, 54 tolerance (gedogen). See also assimilationism in Dutch current politics, 55 in Dutch politics, 191 of specific crimes, 63 Tonkens, E., 68 torture, 10, 14, 29 treaties. See also international rights law becoming binding, 46–47 implementation, 146–152 obligations on states, 13–14, 15, 139–141, 144 ratification of, 5, 37–39 reliance on for social justice, 149 survey research, 58 Treaty of Paris, 41 two-level playing field See paradox (Dutch human rights) UDHR See Universal Declaration of Human Rights (UDHR) Uganda, 4 Ultrecht See municipalities UN See United Nations (UN) UN Special Rapporteur See Ertürk, Yakin un-Dutch case See Wilders case UNESCO See United Nations Educational Scientific and Cultural Organization (UNESCO) Union of Ultrecht, 54 United Kingdom, 12, 19 United Nations (UN) and human rights education, 80–81, 85, 96–97 monitoring, 4 Netherlands advocates for international justice, 33–34 Netherlands opposition to, 6 not binding in Netherlands, 48, 150 United Nations Economic and Social Council (ECOSOC), 6, 31

INDEX

United Nations Educational Scientific and Cultural Organization (UNESCO), 81 United States and exceptualism, 5–6 fear of juridification in, 65 human rights in, 12, 17, 106, 134 judicial power in, 122 legal culture in, 63 Universal Declaration of Human Rights (UDHR). See also International Covenant on Economic Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR) and rights talk, 2, 3, 19, 32 and social rights, 81–98, 148 Dutch interpretation of, 7–8, 34, 78 Dutch unaware of, 58 UPR See Human Rights Council Universal Periodic Review (UPR) values. See also responsibility, Charter of Responsible Citizenship Dutch, 76, 77–78, 93 in survey research, 59–62, 73 Van den Burg, W., 61

Van Dijke case, 114 Van Eysinga Commission, 38–39 Van Gend en Loos case, 42, 46 Van Gogh, T., 56, 69, 77, 108, 110 Van Panhuys, H. F., 34, 44 Van Schaik Constitutional Commission, 46 Van Vollenhoven, C., 33 Van Waarden, F., 64 Veraart, W., 114 Verkaaik, O., 70, 71 Vienna Declaration of 1993, 4 Visser, J., 70 Voorhoeve, J. C., 9 voting rights See suffrage (women’s) Wilders case, 105–107, 117–125, 200 Wilders, G., 75, 105, 107, 109, 110 World Values Survey, 59, 60 World War I, 33 World War II and codification of international human rights law, 29–30 Dutch concern for rights after, 6, 38, 41, 55 Yemen, 115, 136

229

Books in the Series Diseases of the Will Mariana Valverde The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State Richard A. Wilson Modernism and the Grounds of Law Peter Fitzpatrick Unemployment and Government: Genealogies of the Social William Walters Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States Yash Ghai Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction Heinz Klug The Ritual of Rights in Japan: Law, Society, and Health Policy Eric A. Feldman The Invention of the Passport: Surveillance, Citizenship and the State John Torpey Governing Morals: A Social History of Moral Regulation Alan Hunt The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine Ronen Shamir Law and Nature David Delaney Social Citizenship and Workfare in the United States and Western Europe: The Paradox of Inclusion Joel F. Handler Law, Anthropology and the Constitution of the Social: Making Persons and Things Edited by Alain Pottage and Martha Mundy Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives Edited by Marc Hertogh and Simon Halliday Immigrants at the Margins: Law, Race, and Exclusion in Southern Europe Kitty Calavita Lawyers and Regulation: The Politics of the Administrative Process Patrick Schmidt Law and Globalization from Below: Toward a Cosmopolitan Legality Edited by Boaventura de Sousa Santos and Cesar A. Rodriguez-Garavito

Public Accountability: Designs, Dilemmas and Experiences Edited by Michael W. Dowdle Law, Violence and Sovereignty among West Bank Palestinians Tobias Kelly Legal Reform and Administrative Detention Powers in China Sarah Biddulph The Practice of Human Rights: Tracking Law Between the Global and the Local Edited by Mark Goodale and Sally Engle Merry Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile Lisa Hilbink Paths to International Justice: Social and Legal Perspectives Edited by Marie-Bénédicte Dembour and Tobias Kelly Law and Society in Vietnam: The Transition from Socialism in Comparative Perspective Mark Sidel Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise David Schneiderman The New World Trade Organization KnowledgeAgreements: 2nd Edition Christopher Arup Justice and Reconciliation in Post-Apartheid South Africa Edited by François du Bois, Antje du Bois-Pedain Militarization and Violence against Women in Conflict Zones in the Middle East: A Palestinian Case-Study Nadera Shalhoub-Kevorkian Child Pornography and Sexual Grooming: Legal and Societal Responses Suzanne Ost Darfur and the Crime of Genocide John Hagan and Wenona Rymond-Richmond Fictions of Justice: the International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa Kamari Maxine Clarke Conducting Law and Society Research: Reflections on Methods and Practices Simon Halliday and Patrick Schmidt Planted Flags: Trees, Land, and Law in Israel/Palestine Irus Braverman Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone Tim Kelsall

Cultures of Legality: Judicialization and Political Activism in Latin America Javier Couso, Alexandra Huneeus, Rachel Sieder Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State Lara J. Nettelfield The Gacaca Courts and Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers Phil Clark Law, Society, and History: Themes in the Legal Sociology and Legal History of Lawrence M. Friedman Robert W. Gordon and Morton J. Horwitz After Abu Ghraib: Exploring Human Rights in America and the Middle East Shadi Mokhtari Adjudication in Religious Family Laws: Cultural Accommodation: Legal Pluralism, and Gender Equality in India Gopika Solanki Water On Tap: Rights and Regulation in the Transnational Governance of Urban Water Services Bronwen Morgan Elements of Moral Cognition: Rawls’ Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment John Mikhail A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective Chris Thornhill Mitigation and Aggravation at Sentencing Edited by Julian Roberts Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave Catherine R. Albiston Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore Jothie Rajah Law and Development and the Global Discourses of Legal Transfers Edited by John Gillespie and Pip Nicholson Law against the State: Ethnographic Forays into Law’s Transformations Edited by Julia Eckert, Brian Donahoe, Christian Strümpell, and Zerrin Özlem Biner Transnational Legal Process and State Change Edited by Gregory C. Shaffer

Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong Edited by Waikeung Tam Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan Sarah M. H. Nouwen Political and Legal Transformations of an Indonesian Polity: The Nagari from Colonisation to Decentralisation Franz von Benda-Beckmann and Keebet von Benda-Beckmann Human Rights under State-Enforced Religious Family Laws in Israel, Egypt, and India Yüksel Sezgin Why Prison? Edited by David Scott