The doctrine of Dutch social and economic rights

How the Netherlands went the wrong way

ADDENDUM TO NETHERLANDS REPORTS TO THE NINETEENTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW, Vienna 2014
 

Frank Vlemminx

Assistant Professor, Department for Public Law, Jurisprudence and Legal History, Tilburg University
1. Introduction Social and economic rights do not constitute an isolated doctrine. ‘All human rights are universal, indivisible and interdependent and interrelated’ the Vienna Declaration by the World Conference on Human Rights stated in 1993.1 Twenty years later Judge Pinto de Albuquerque of the European Court of Human Rights (ECtHR) made reference to this tenet when he put the case for more acknowledgment of social rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).2 But there is no need to turn to such dissenting opinions because the regular case-law of ECtHR is enough in itself. There is no ‘water-tight division’ the ECtHR pointed out in 19793 and in 2008 the ECtHR ruled that, in defining the meaning of terms and notions in the text of the ECHR, it can and must take into account social and economic rights in other international law.4 So, States cannot both reject social and economic rights and wholeheartedly adhere to civil and political rights. Both groups of rights are much too closely intertwined. The position in regard of one category reveals something about the standpoint taken on the other. Since the Netherlands does not agree to social and economic rights as being full and justiciable rights5 there is no getting away from a certain depreciatory attitude towards civil and political rights. Many a Dutch legal scholar or politician will strike a different note. Exactly the opposite would be the case. In the field of civil and political rights the Netherlands would generously afford judicial protection, even when there is common ground with social and economic rights. To give such a thesis solid ground, attention can be drawn to the fact that Dutch courts established a violation of Article 1 of Protocol No. 1 of the ECHR because an Act of Parliament providing artists with subsistence benefits had been revoked without any interim regulation.6 Through these judgments a persuasive argument emerges, although it should be remembered that the findings in question caused a great deal of controversy as well. But when the European Committee of Social Rights (ECSR) ruled that the Netherlands infringed Articles 17 and 31 of the European Social Charter (ESC) by not providing shelter to children unlawfully present in the Netherlands7 and Dutch courts endorsed this ruling by treating it under Article 8 of the ECHR because they could not apply the ESC directly,8 there is cause for mixed feelings. One cannot help noticing a substantial difference with the approach of the ECtHR. By taking social and economic rights into account in interpreting the ECHR the ECtHR pays tribute to these rights while Dutch courts avail themselves of the ECHR because they cannot appreciate the social and economic rights at all. The ruling by the ECSR should prompt Dutch courts to shift their ground with regard to the enforceability of Articles 17 and 31 in the matter of homeless children. If Article 8 of the ECHR proofs to be directly applicable in this context, the same should hold for Articles 17 and 31. So, in a way improper use is made of the ECHR and this finding makes it likely that the approach of Dutch courts to civil and political rights of the ECHR is questionable. The social and economic rights in the Dutch Constitution are an utter fiasco and this report takes the line that this situation is tied up with the fact that the Dutch approach to human rights is defective on a larger scale. First of all, the report discusses how the domestic social and economic rights are to be defined (Section 2) and why they are considered to be inferior rights. They do not lend themselves for being relied upon in court (Section 3) and lack political pertinence as well (Section 4), a situation which in spite of all the scholarly literature arguing in favour of the rights9 persists to this day. Next the focus of the report shifts to salient features of the Dutch approach to fundamental rights. When all of the domestic fundamental rights are taken stock of there appears to be little variety and little room for real safeguards. In this respect Dutch civil and political rights do not contrast sharply with Dutch social and economic rights (Section 5). The separation of powers in a certain sense stands in the way of the full realization of domestic fundamental rights because Dutch courts lack the competence of testing an Act of Parliament against the Constitution (Section 6) and are not supposed to rule at all as far as political policy-making is concerned (Section 7). Furthermore, exactly those civil and political rights which in the case-law of the ECtHR give rise to a lot of positive obligations and thereby put the difference with social and economic rights into perspective happen to be absent from the Dutch Constitution (Section 8). As the domestic social and economic rights and the equivalent rights in international law are lumped together the Dutch point of view is not likely to change because of the mere validity of treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR). Dutch courts are not at liberty to assess whether the ICESCR is complied with. Especially the highest court in social security matters seems to regret the obstacle that are put in its way and after highlighting the continuous struggle of this court (Section 9) the report ends with some concluding remarks (Section 10). 2. Two different definitions In 1983 the current fundamental rights were enshrined in Chapter 1 of the Dutch Constitution by introducing two bills in Parliament. The first one dealt with what the Government called ‘provisions on fundamental rights’ and related to Articles 1-17.10 The second one dealt with ‘provisions on social rights’ and related to Articles 18-22.11 There is no doubt about what is meant under the Constitution by the expression ‘social rights’. It suffices to consult Articles 18-22. The place where the right is found is decisive. Articles 1-17 contain civil and political rights or rather in the Dutch jargon ‘classic rights’. But at the time of the enshrinement of the fundamental rights a substantive criterion was in vogue as well. In this other approach a fundamental right was considered to be ‘classic’ insofar as it gave rise to negative obligations and it was ‘social’ insofar as it imposed positive obligations and/or obligations to adopt policies. When Kortmann shortly after the constitutional revision wrote that in Article 10 as well as in Article 18 ‘social rights’ and ‘classic rights’ had been put together12 he clearly focused on this substantive definition. There is little doubt that this definition is at variance with the categorization in international law. Furthermore, it is very inaccurate for ever since 1994 the case-law of the ECtHR indicates that the boundaries between the State’s positive and negative obligations often do not lend themselves to precise definition.13 Even so the substantive definition has not been completely abandoned in scholarly literature.14 It even rears its ugly head in court rulings. In 2004 the District Court of The Hague wondered whether the freedom of expression, laid down in Article 7, is also a true ‘classic right’ as far as the first sentence of para. 2 is concerned. This sentence reads: ‘Rules concerning radio and television shall be laid down by Act of Parliament’. The Court decided that para. 2 gives ‘instructions’ and therefore is comparable to ‘social rights’.15 This is an important issue because local authorities now have more power to introduce limitations than under a true ‘classic’ heading. In this court decision ‘social rights’ appear to be second-rate rights. 3. Second-rate rights That ‘social rights’ do not equal ‘classic rights’ is shown by their history. The Batavian Constitution of 1798 that was forged when the Netherlands was occupied by France included an extensive list of ‘social rights’ but when the Kingdom of the Netherlands was established this list was reduced rigorously. Only the right to subsistence and the right to education remained.16 After World War II, a renewed interest in ‘social rights’ emerged and in scholarly literature inclusion in the Constitution was advocated.17 But there was serious opposition as well.18 In 1954, the Van Schaik Royal Committee, set up to prepare a revision of the Constitution, proposed inserting a special chapter containing ‘social rights’ in the Constitution but at the same time, however, some important members of the Committee objected to this proposal and so nothing came of it.19 It is striking that in those days the notion ‘classic right’ did not exist. Dutch constitutional law only knew ‘fundamental rights’, meaning familiar rights such as freedom of expression and freedom of religion. When partly under the influence of Articles 22 et seq. of the Universal Declaration of Human Rights the notion ‘social right’ gained currency these familiar rights were initially referred to as ‘already entrenched’ or ‘old’20 but soon came to be called ‘classic’.21 The expression ‘classic’ stands for ‘timeless’ and ‘well-tried’. On the rebound ‘social rights’ changed into ‘trendy’ and ‘untested’ rights, i.e. second-rate rights, and they were still second-rate at the time of their insertion into the Constitution thirty years later. In Parliament some political parties characterized these rights as a kind of ‘moral assignment’ or as ‘an excerpt from 15 years of Speeches from the Throne’.22 After their enshrinement similar labeling followed in scholarly literature. The rights only had symbolical value23 or could not serve as full legal standards.24 Of course social rights especially gave rise to such unfavourable comment when the substantive criterion was used, i.e. when they imposed positive obligations and/or obligations to adopt policies but inevitably this criticism also besmirched the rights insofar as they imposed negative obligations. A striking case in point is Article 19 para. 3 that secures to every Dutch national the right of a free choice of work, without prejudice to the restrictions laid down by or pursuant to Act of Parliament. In 1992, the Central Court of Appeal decided that ‘the existing social and administrative reality’ did not permit a full examination for compatibility with this provision.25 Any review should be confined to certain ‘core elements’ such as the prohibition of compulsory labour, i.e. elements that corresponded to rights enshrined in Article 4 of the ECHR and Article 8 of the International Covenant on Civil and Political Rights (ICCPR). To the extent that Article 19 para. 3 exclusively mirrored Article 1 of the ESC and Article 6 of the ICESCR there was no need for enforceability.26 The explanation that the Government at the time of the constitutional revision gave did not urge the view that ‘social rights’ could serve as full legal standards. According to the Government ‘social rights’ more than ‘classic rights’ set the legislature and the administration all sorts of tasks. These task setting provisions were not supposed to provide individuals with any safeguards. They just gave ‘instructions’. From the language of the provisions ‘an ample policy margin’ had been left for the bodies entrusted with regulations or care. The policy margin meant primarily that the rate and speed of realization of the interests phrased in the provisions were left to the government body concerned. For this reason, the Government dismissed judicial supervision. Only in ‘very exceptional cases’ would a court be able to establish a violation of the rights. The Government considered the possibility that such a case would arise to be ‘highly unlikely’.27 When ‘social rights’ are invoked in court this passage about ‘very exceptional cases’ is of use to the court in justifying dismissal.28 Or a court observes that the ‘social rights’ are in principle not suitable standards for assessment and that no evidence is produced that special circumstances should nevertheless lead to an assessment of compatibility.29 In other cases a court ruled that ‘social rights’ just gave ‘instructions’ and therefore could not be relied upon.30 Sometimes a court draws attention to ‘an ample policy margin’31 or even finds that ‘social rights’ merely constitute ‘an incitement’.32 All in all ‘social rights’ are of little value in court. It is something quite remarkable when they indirectly play a part in court rulings. This happened very sporadically.33 The judiciary and the Government can easily make out a case by demanding a close look at the text of the provisions concerning ‘social rights’. Articles 18-22 use vague and noncommittal formulae like ‘it shall be the concern of the authorities…’ or ‘rules shall be laid down by Act of Parliament…’. Article 22 is made up of only 30 words and 4 or 5 rights have been squeezed into this short provision: the right to ‘health’, the right to ‘sufficient living accommodation’, the right to ‘social and cultural development’ and the right to ‘leisure activities’. All of these rights have been framed in the same way. As regards the scope of the policy margin left for the authorities is does not seem to matter whether for instance the right to health or the right to leisure activities is at stake. The need to protect human health by ensuring a minimum safety of food does not seem to carry more weight than the need to release people from any boredom that might arise during weekends. Of course, this is quite astonishing but there is a simple explanation. These ‘social rights’ were conceived in a time of wealth and the Government took the position that the implementation of the ‘social rights’ had almost been realized.34 It may then come as a surprise that there were still two cases in which it was established that the Dutch authorities did not comply with a positive obligation flowing from Articles 18-22. In 1991, the District Court of Utrecht concluded that the refusal to rent a house to a mother with three children amounted to a violation of the right to sufficient living accommodation. The ample policy freedom of the local authorities when acting as landlords could not save this refusal from being unreasonable for the family was already homeless for a year and a half while the mother was suffering from cancer and the oldest child was in need of psychiatric care.35 In 1995, the National Ombudsman found a violation of the right to health when hemophiliacs were shown to be infected with the HIV virus during blood transfusion. Although the Government was well aware of the danger it failed to look for protective measures.36 These two decisions date from years ago when Articles 18-22 were new and exciting but the novelty soon wore off. A total of two cases in 30 years is anything but a rich harvest of jurisprudence. When the Government called the establishment of a violation ‘highly unlikely’ it had a sound grasp of the significance of ‘social rights’ in legal practice. 4. The materiality of the ‘social rights’ in the eyes of the Government In the view of the Government ‘social rights’ did not need the possibility of judicial supervision to be useful legal standards. The Government stated explicitly that the rights served as basic principles for the exchange of views between Government and Parliament and could be used to press Government and Parliament to create benefits and facilities.37 But it was just plain logic when some members of Parliament openly questioned the obligatory nature of the rights and spoke of a kind of ‘moral assignment’. After all, the Government did indeed stipulate a kind of political ethics. Some ten years after the constitutional revision, an extensive evaluation study was performed, which showed that the ‘social rights’ play absolutely no role in the legislation process and the determination of policy targets.38 Later, but less extensive, studies point in the same direction39 and seeing that political life in this hectic third millennium is more than ever swayed by the issues of the day it is safe to assume that this gloomy picture still applies today.40 5. Much ado about nothing On closer inspection, the legal nature of ‘social rights’ in the Dutch Constitution is less distinct from the legal nature of ‘classic rights’ than one might expect. How did this happen? The way all fundamental rights were included into the Constitution in 1983 smacks of complacency, conservatism and pragmatism. That the right to life or the right to a fair trial are absent from the catalogue would seem to be evidence for complacency. Can the Netherlands do without these important ‘classic rights’? There is every appearance that Government and Parliament persuaded themselves that in this respect everything was in apple-pie order. Even more compelling evidence comes from the ‘social rights’. The Government boasted that the implementation of the rights had almost been realized and claimed that because of this achievement inane formulae would do.41 The ‘social rights’ also show clear evidence for pragmatism. The Government advised Parliament against the inclusion of the right of a free choice of work into Article 19 for it would necessitate the introduction of drastic measures in the field of choice of career and practice of profession.42 In relation to the ‘classic rights’ evidence for pragmatism is to be found as well. The Government took the view that any entrenchment had to be limited to ‘classic rights’ which, particularly having regard to the prospects of introducing limitations, would function properly within the existing legal order.43 Moreover, the impact of the negative obligations is mitigated to a high degree by the laxity of all limitation clauses. Restrictions must be laid down in an Act of Parliament or pursuant to an Act of Parliament.44 However stringent this rule might appear to be at first sight, in fact it is quite lenient. The legislature, i.e. Government and Parliament acting jointly, has carte blanche. The Constitution does not require that the limitations are necessary or based on a fair balance which has to be struck between the general interest and the interests of the individual. No matter whether ‘classic rights’ or ‘social rights’ are at stake and no matter whether negative or positive obligations are involved, the fundamental rights in the Dutch Constitution are not supposed to affect the political freedom of choice of Government and Parliament. So, although in Parliament only the ‘social rights’ were pigeon-holed as a kind of ‘moral assignment’, this label in a way applies to the ‘classic rights’ as well. The ‘classic rights’ were equally entrenched for the sake of formality and not with the intention of bringing about innovations. The Government was fully aware of the flimsy nature of the ‘classic rights’. It realized that the rights compare poorly to the international civil and political rights and pointed out that the ECHR and the ICCPR contain ‘a wide variety of broadly worded human rights’ which are coupled with ‘elaborate clauses’.45 Of course, the Government was also fully aware of the flimsy nature of the ‘social rights’. It informed Parliament about the fact that these rights ‘by and large’ are ‘less detailed’ than the human rights in the ESC and the ICESCR and that issues are dealt with ‘implicitly’ by the Constitution.46 6. The separation of powers: how Acts of Parliament command respect The political freedom of choice of Government and Parliament is not only protected from judicial meddling by empty clauses and vague formulae in the fundamental right provisions. Article 120 of the Dutch Constitution reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the Courts’. So, Dutch courts lack the competence of testing Acts of Parliament, i.e. rules made by Government and Parliament acting jointly, against the Constitution. Article 120 was inserted into the Constitution in 1848 when the legislative powers of Parliament were considerably extended. During the constitutional revision of 1983 the question arose whether, especially with regard to the ‘classic rights’, some form of judicial review should nevertheless be allowed, the more so since Dutch courts by virtue of Article 94 of the Constitution already had the power to test all domestic law provisions including Acts of Parliament against directly applicable provisions of international treaties. But the Government saw no good in any moderation of Article 120. It held that there are enough steps in the legislation process to ensure constitutionality, such as the advisory function of the Council of State and the possibility of Parliament detecting unconstitutionality all by itself. Furthermore, it was open to anyone who sensed some kind of unconstitutionality to try and ‘persuade’ Government or Parliament.47 This last item was strongly reminiscent of the effect which the ‘social rights’ in the eyes of the Government were supposed to have. So, Article 120 seriously reduces the difference in legal nature between the ‘classic rights’ and the ‘social rights’. A tradition of judicial restraint lasting a century and a half cannot fail to leave deep marks. In exceptional cases, Article 120 even keeps a lid on judicial manoeuvring as far as the civil and political rights of the ECHR and the ICCPR are concerned. In those cases Article 120 does not even apply! The applicable rule is to be found in Article 94 and this Article prescribes exclusion from application when application of statutory regulations is in conflict with directly applicable treaty provisions. But from time to time courts decline to deprive an Act of Parliament of its effect, even though they consider application to be a violation of the ECHR or the ICCPR, holding that various options are open to remove the unlawfulness and that the choice should be left to Government and Parliament.48 Meanwhile there is a big change in the air for the Constitution is halfway now in the process of being amended again. The process was started off by a member of the Lower House who belonged to the Green party.49 The amendment serves the purpose of mitigating the effects of Article 120. The Government supports this amendment50 but the mitigation pertains only to the ‘classic rights’ in the Constitution. In the domain of the ‘social rights’ any testing of constitutionality remains out of the question. Once again Government and Parliament impress Dutch courts with the inferiority of ‘social rights’. It is little wonder then that courts when faced with ‘very exceptional cases’ in which they are able to establish a violation should prefer to ignore ‘social rights’ altogether and try to come to grips with the problem in a different way. Article 20 para. 3 prescribes that ‘Dutch nationals resident in the Netherlands who are unable to provide for themselves shall have a right, to be regulated by Act of Parliament, to aid from the authorities.’ The entitlement to social security appears to be entrenched in the Constitution itself.51 In 2011, the Central Court of Appeal ruled that the sanction of completely suspending the assistance benefit may last three months at most. Such a maximum is necessary because ‘everyone who cannot cope on his own is entitled to protection from poverty (…).’52 The Central Court of Appeal found this safeguard against loss of all income in the Act of Parliament instead of Article 20 of the Constitution. This move is quite reasonable. By calling in this ‘social right’ the Central Court of Appeal would needlessly set the cat among the pigeons. 7. The separation of powers: how an ample policy margin is preserved In Dutch administrative law a popular slogan says that ‘courts shall not take the place of the administrative authorities’. In view of the separation of powers courts are supposed to be extremely reticent on the merit of political policy-making and although in this context ‘social rights’ hold a prominent place, ‘classic rights’ deserve attention too. Whereas it is generally known that ‘classic rights’ limit the political freedom of choice, regrettably, too many Dutch legal scholars and politicians still fail to grasp to what extent political policy-making is a prerequisite to a full realization of ‘classic rights’. This dimension of these rights is readily observable in the civil and political rights of the ECHR. Two examples borrowed from the policy on the entry of non-nationals into the territory of the Netherlands show immediately that Dutch courts should strike a more critical pose. The first example concerns the right to family life contained in Article 8 and the taking of measures with a view to children being reunited with their parents. The case-law of the ECtHR shows that especially the Netherlands seems to commit this kind of violations of Article 853 and the ECtHR even reproaches the Netherlands with extreme formalism.54 The Dutch policy concerns the national Children’s Ombudsman to a high degree. He claims that the Netherlands ever since 2008 grossly violates the rights of children who want to be reunited with a (foster) parent staying as a refugee in the Netherlands.55 The second example concerns the expulsion of an alien to a country where this alien faced a real risk of being subjected to treatment contrary to the prohibition of torture laid down in Article 3 of the ECHR. If such an alien belonged to a group against which organized, large-scale human rights violations were committed, the Council of State held that this alien had to make a convincing case that specific facts and circumstances existed relating to him of her personally in order to be eligible for the protection of Article 3. The judgment in the case of Salah Sheekh shows that the Council of State took this so far that an applicant in the view of the ECtHR was not required to exhaust domestic remedies any more.56 The ECtHR noticed that in 2003 the Council of State had dealt with the case of ‘a Somali national who claimed that she belonged to the Reer Hamar and had been subjected to ill-treatment including rape’ and had ruled ‘that the alleged events demonstrated neither that the acts committed had been specifically aimed at the appellant personally, nor that she thereby found herself in a position which substantially deviated from that of other members of the Reer Hamar in Somalia.’57 Moreover, it must not go unrecorded that the aforementioned Dutch court rulings to the effect that Article 1 of Protocol No. 1 of the ECHR was violated because an Act of Parliament on subsistence benefits for artists was revoked without any interim regulation did not meet with a favourable reception in all political circles. Some members of the Lower House who belong to a conservative party proposed to start the process of amending Article 94 of the Constitution. These politicians want to deprive courts of the power to exclude an Act of Parliament from application on account of this application being in conflict with directly applicable treaty provisions.58 When the thwarting of political policy-making by court rulings on ‘classic rights’ can make members of Parliament react so violently, how strong the indignation must be when ‘social rights’ put a spoke in the politicians’ wheels! ‘Parliament needed to be the judge of the effectiveness and efficiency of the Government, not anyone else’ the Government replied when the Committee on Economic, Social and Cultural Rights (CESCR) in 1998 asked if the ICESCR could be relied upon in court.59 The Government meant this seriously. When, in 1996, the Central Court of Appeal established a violation of ILO Convention 10260 the Government denounced a similar European Convention on social security.61 Fortunately Parliament refused to approve the termination.62 On 14 March 2003 the Central Court of Appeal established a violation of ILO Convention 11863 and once again the judgment provoked a denunciation but this time Parliament gave its approval. The termination of ILO Convention 118 was effected retroactively as from 14 March 2003!64 8. ‘Classic rights’ that are lacking Section 3 discussed the only two cases in which it was established that a positive obligation flowing from the ‘social rights’ in Articles 18-22 was not complied with, one violation of the right to sufficient living accommodation because a family in a very precarious situation was not provided with a home, and one violation of the right to health because no measures were taken to prevent infection with the HIV virus during blood transfusion. Today problems such as these are tackled with positive obligations flowing from the ‘classic rights’ in the ECHR. In 2008, the Central Court of Appeal ruled that Article 8 of the ECHR ‘may in certain circumstances also give rise to inherent positive obligations which are necessary for an effective guarantee of the right to private life. What is more children and other vulnerable individuals are particularly entitled to protection.’65 Such positive obligations also pertain to housing the homeless, as is clearly shown for instance by the District Court of Utrecht’s ruling that children unlawfully present in the Netherlands may not be turned out into the street.66 In 2010, the ECtHR dealt with the case of a child which was infected with the HIV virus during a blood transfusion. It considered the case under the right to life contained in Article 2 and ruled that a positive obligation was not complied with and that the victim is to be provided with free and full medical cover for the rest of his life.67 The positive obligations flowing from these ‘classic rights’ in the ECHR do not point at any redundancy of the ‘social rights’ but teach that ‘social rights’ conditions permitting are sure to serve as suitable standards for assessment. It can hardly be accidental that the ‘classic rights’ in the Dutch Constitution do not give rise to equivalent positive obligations. The right to private life contained in Article 10 merely obliges the legislator to lay down rules in connection with the recording and dissemination of personal data and the right to life has never been inserted into the Constitution at all. It is striking that exactly those civil and political rights which in the case-law of the ECtHR impose not only a wealth of positive obligations but also various obligations to put in place a legislative and administrative framework designed to provide effective protection are lacking in the Constitution. In addition to the right to life68 for instance the prohibition of slavery69 and the right to a fair trial70 are worth mentioning. Such a deficient codification turns negative obligations into the predominant factor in the field of ‘classic rights’ and positive obligations and obligations to adopt policies into the exclusive domain of ‘social rights’. This high level of distortion is revealed by the right to (free) legal assistance laid down in Article 18 of the Constitution. Since this right cannot be subsumed under a ‘classic right’ to a fair trial and it indisputably involves the creation of facilities it figures as a ‘social right’ and lacks justiciability.71 However, Article 6 of the ECHR is positive proof of the right to legal assistance belonging under the ‘classic rights’ and the case-law of the ECtHR shows a clear degree of enforceability.72 9. No justiciability of international social and economic rights Whereas the wording of the ‘social rights’ in the Dutch Constitution is extremely vague the equivalent rights in the ICESCR are rather detailed and imperative. This difference does not get Dutch political and judicial authorities to understand that their point of view is no good. When the ICESCR was submitted for approval to Parliament in the mid-1970s, the Government in the explanatory memorandum to the bill provided the rights with comments which did not really apply to those international rights. The comments were tailored to the ‘social rights’ which in virtually the same period were being included in the Constitution. In the Government’s opinion the rights in the ICESCR because of their generality did not offer a fixed standard for the rate and degree of their realization and as a consequence, in general, would not be directly applicable.73 Dutch courts followed suit. Direct applicability was even denied in court insofar as rights gave rise to negative obligations. The right of a free choice of work contained in Article 6 and the right to form and join trade unions contained in Article 8 are a case in point.74 The right to strike laid down in Article 8 is an especially poignant example75 because the very same right did happen to be found directly applicable in the context of the ESC.76 The right to strike contained in Article 6 para. 4 of the ESC for that matter is reputed to be the only international social or economic right that can be relied upon in Dutch courts. On the subject of the positive obligations flowing from the ICESCR the case-law of the Central Court of Appeal deserves special attention because being the highest court with regard to social security matters, this court has difficulty time and again dismissing direct applicability. The Central Court of Appeal is also the highest appeals tribunal for the civil service and this brief outline of its case-law starts with the only violation ever established during the 30 years that the ICESCR has been in force for the Netherlands, a violation which concerned a cutback measure that affected the right to equal remuneration of public officials. In 1984 the Civil Service Tribunal of Amsterdam ruled that this cutback measure violated Article 7.77 Because the Central Court of Appeal two years later ruled that it need not be excluded in advance that the right to equal remuneration would qualify for direct applicability,78 a new age seemed to dawn. But in 1989 the Central Court of Appeal already backtracked and set aside the sensational ruling of the Civil Service Tribunal of Amsterdam, holding that the direct applicability of any provision constituted a total exception from the general character of the ICESCR.79 Meanwhile the Supreme Court and the Council of State resolutely dismissed the direct applicability of other rights laid down in the ICESCR80 and when the Supreme Court gave a similar negative ruling with regard to the right to equal remuneration81 the Central Court of Appeal followed this court’s lead.82 Moreover, the direct applicability of other rights was definitely dismissed as well.83 But after a short while the Central Court of Appeal took a new route by leaving aside whether the ICESCR provision was directly applicable and first of all examining whether the provision had been violated. Since there was no violation the direct applicability issue did not need to be considered. This new approach which again opened up the possibility of direct applicability arose with regard to the right to subsistence laid down in Article 1184 but soon also served well in the context of other rights.85 Unfortunately, the Central Court of Appeal backed off for a second time. Was this change of mind once again caused by the dismissive strategy of the civil courts? In 2004, the District Court of The Hague gave a very peculiar decision on the right to subsistence in a case in which people were given no food, clothing or shelter. It started off by emphasizing that anyone whose right to food was allegedly violated could promptly present his case in court and ruled subsequently that the notion ‘adequate food’ was much too vague to render Article 11 directly applicable.86 Is such a decision not grossly inconsistent? Moreover, is the notion ‘adequate food’ indeed so vague that a violation is even out of the question when no food is given at all? It is anybody’s guess whether the Central Court of Appeal was influenced by this judgment but in 2004 it ruled that Article 11 contained generally formulated objectives rather than a right that could be invoked by individuals. Direct applicability was denied with reference to the explanatory memorandum to the Act sanctioning the ICESCR.87 This course was adopted with regard to other rights too.88 In 2006, the CESCR found the lack of direct applicability to be one of the ‘principal subjects of concern’ and urged the Netherlands to ensure that the provisions of the ICESCR were ‘given effect by its domestic courts as defined in the Committee’s General Comment 3’.89 In 2007, the Central Court of Appeal did dismiss the direct applicability of Articles 9 and 11 but at the same time remarked that considering General Comment 3 it noticed ‘some development of law’.90 But in the ensuing years it was held again and again that the instruction by the CESCR was no sufficient reason for switching over to direct applicability.91 In November 2010, the CESCR severely reprimanded the Netherlands for the persistently dismissive strategy of its courts.92 A month later the Central Court of Appeal ruled that the ICESCR could play a part in the interpretation of the ECHR. But even when the ICESCR was taken into account no violation of Article 8 of the ECHR could be found.93 In 2011 a similar judgment followed.94 A year later a civil court, that is to say the District Court of The Hague, stated that the CESCR’s reprimand from 2010 gave it no cause to abandon previous decisions on the ICESCR.95 Will the Central Court of Appeal hold on to the opinion that the ICESCR is material to the interpretation of Article 8 of the ECHR? Or will it back off once more? Let us hope that it is sufficiently comforted by old rulings by the Council of State and the Supreme Court to the effect that the ICESCR could be important to some extent when combined with Article 26 of the ICCPR.96 10. Concluding remarks Dutch courts persist in the refusal to consider international social and economic rights as directly applicable rights. Dutch law nevertheless seems to be in a state of flux. When the ECSR found that the Netherlands violated the ESC by turning children unlawfully present in the Netherlands out into the street Dutch courts endorsed this ruling by treating it under Article 8 of the ECHR. The courts patterned themselves on the ECtHR which already for many years takes social and economic rights into account when interpreting the text of the ECHR. Meanwhile Dutch courts express a certain willingness to let the ICESCR play a part in the assessment whether sufficient protection is offered to children and other vulnerable individuals and Article 8 of the ECHR is complied with. Very slowly and ever so cautiously Dutch case-law starts to move towards meeting the wishes of the CESCR which sharply rebukes the Netherlands for disqualifying the rights laid down in the ICESCR as full legal standards. The Optional Protocol to the ICESCR now provides the CESCR competence to consider individual complaints. This Protocol entered into force on 5 May 2013. Reluctant as the Government was because in the eyes of the Government an international complaint procedure regarding non-enforceable rights might bring about unrealistic expectations97 it did sign the Protocol in 2009. Three years later it informed Parliament of its doubts as to how the Committee’s decisions would take effect within the domestic legal order.98 But will the Government in the long run manage to escape ratification? The Netherlands is heading for a future in which international social and economic rights will gather weight. What about the ‘social rights’ in the Constitution? The conspicuous lack of application, judicial or otherwise, seriously hampers a profound change of the Dutch approach to the ICESCR and the ESC. It would seem that the removal of Articles 18-22 from the Constitution would be pure gain for the international social and economic rights.

  1. A/CONF.157/23, 12 July 1993, § 5.

  2. Konstantin Markin v. Russia (30078/06), ECtHR 22 March 2012.

  3. Airey v. Ireland (6289/73), ECtHR 9 October 1979.

  4. Demir and Baykara v. Turkey (34503/97), ECtHR 12 November 2008.

  5. F. Vlemminx, The Netherlands and the ICESCR: Why didst thou promise such a beauteous day?, in: Fons Coomans (ed.), Justiciability of Economic and Social Rights; Experiences from Domestic Systems, Antwerpen-Oxford 2006, p. 43-65.

  6. District Court of The Hague, 3 January 2012, LJN BU9921 and Court of Appeal of The Hague, 5 June 2012, LJN BW7457.

  7. DCI v. the Netherlands (47/2008), ECSR 27 October 2009.

  8. District Court of Utrecht, 6 April 2010, LJN BM0846 and Supreme Court, 21 September 2012, LJN BW5328.

  9. See, for example, A.W. Heringa, Sociale grondrechten. Hun plaats in de gereedschapskist van de rechter, Zwolle 1989; A.P.M. Coomans, De internationale bescherming van het recht op onderwijs, Leiden 1992; F.M.C. Vlemminx, Grondrechten en moderne beeldende kunst, Zwolle 1992; W.J.M. van Genugten, Mensenrechten in ontwikkeling: het ‘goede doel’ voorbij, Nijmegen 1992; B. Hubeau/R. de Lange (ed.), Het grondrecht op wonen; de grondwettelijke erkenning van het recht op huisvesting in Nederland en België, Antwerpen/Apeldoorn 1995; J. Verschuuren, Het grondrecht op bescherming van leefmilieu, Zwolle, 1993; B.C.A.Toebes, The Right to Health as a Human Right in International Law, Antwerpen/Groningen/Oxford 1999; F. Vlemminx, Een nieuw profiel van de grondrechten, Den Haag 2002; M. Sepúlveda Carmona, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Antwerpen/Oxford/NewYork 2003; G. J. Vonk, Lokale verzorgingsstaat, Nieuwe uitdagingen voor de sociale rechtsstaat, NJB 2012, p. 2686-2693; A.P.M Coomans, Sociale rechten: mensenrechten mét betekenis, NTM/NJCM-Bulletin 2013, p. 603-608; Bart Wernaart, The enforceability of the human right to adequate food, Wageningen 2013.

  10. Government Paper on a General Constitutional Revision, Part 1a Basic Rights, (’s-Gravenhage, 1979), p. 2-6. From now on Part 1a of this Paper will be referred to as GPGCR.

  11. GPGCR, p. 252-253.

  12. C.A.J.M. Kortmann, De Grondwetsherzieningen van 1983 en 1987, Deventer 1987, p. 93 and 116.

  13. See, for example, Keegan v. Ireland (16969/90), ECtHR 26 May 1994.

  14. See, for example, Joseph Fleuren, Toetsing van wetgeving aan de sociale grondrechten van Hoofdstuk 1 van de Grondwet, Ars Aequi 2008, p. 620.

  15. District Court of the Hague, 5 April 2004, LJN AO7093.

  16. F. Vlemminx, Een nieuw profiel van de grondrechten, Den Haag 2002, p. 9-10.

  17. C.P.M. Romme, Nieuwe Grondwetsartikelen, Bijdrage tot herstel en vernieuwing, Amsterdam 1945; M. van der Goes van Naters, Vormgeving en hervorming der grondwet, in: J. Valkhoff (ed.), Grondwet en maatschappij in Nederland 1848-1948, ’s-Gravenhage, 1948, p. 157-197; J.J. Loeff, De sociale grondrechten van de mens, Handelingen der Nederlandse Juristen-Vereniging, Zwolle 1953.

  18. C.H.F. Polak, Behoren sociale grondrechten als vervat in de internationale verklaring van de rechten van de mens (art. 22 e.v.) ook voor ons recht aanvaard, in de grondwet verankerd en wettelijk nader omschreven te worden?, Handelingen der Nederlandse Juristen-Vereniging, Zwolle 1953.

  19. M.C. Burkens, Algemene leerstukken van grondrechten naar Nederlands constitutioneel recht, Zwolle 1989, p. 72-73.

  20. J.J. Loeff, De sociale grondrechten van de mens, Handelingen der Nederlandse Juristen-Vereniging, Zwolle 1953, p. 103-104 and F.J.H.M. van der Ven, Sociale grondrechten, Utrecht 1957, p. 42 en 46.

  21. See, for example, R.P. van Exter, Het internationale aspect der sociale grondrechten, Vlaardingen 1955, p. 11.

  22. GPGCR, p. 364 and 373.

  23. M.C. Burkens, Grondrechten als rechtsnormen en rechtsbeginselen, in: M.M. den Boer (ed.), Gegeven de Grondwet, Deventer 1988, p. 57.

  24. C.A.J.M. Kortmann, De Grondwetsherzieningen van 1983 en 1987, Deventer 1987, p. 113.

  25. Central Court of Appeal, 10 December 1992, TAR 1993, 34.

  26. J. Boesjes, Een gordel van smaragd, Deventer 1993, p. 12.

  27. GPGCR, p. 258.

  28. See, for example, Council of State, 9 December 2009, LJN BK5832

  29. See, for example, Council of State, 30 January 2013, LJN BY9957.

  30. See, for example, District Court of The Hague, 13 December 2006, LJN AZ4247.

  31. See, for example, District Court of The Hague, 2 May 2001, LJN AB1369.

  32. See, for example, District Court of Maastricht, 6 May 2008, LJN BD6937.

  33. See, for example, Court of Appeal of The Hague, 20 September 2011, BU4672.

  34. GPGCR, p. 255.

  35. District Court of Utrecht, 18 June 1991, NJ 1992, 370.

  36. National Ombudsman, 18 July 1995, report no. 95/271, p. 188.

  37. GPGCR, p. 258-259.

  38. Tj. Gerbranda and M. Kroes, Grondrechten evaluatie-onderzoek, Eindrapport, Leiden 1993, p. 334.

  39. F. Vlemminx, Een nieuw profiel van de grondrechten, Den Haag 2002, p. 21-22.

  40. Willem Konijnenbelt, ‘Herijking van de rechtsstaat’ en het Nederlandse recht, in: Preadviezen voor de Vereniging voor de vergelijkende studie van het recht in België en Nederland, Den Haag 2012, p. 82-84.

  41. GPGCR, p. 255.

  42. GPGCR, p. 261.

  43. GPGCR, p. 11.

  44. GPGCR, p. 17-19 and 22-24.

  45. GPGCR, p. 12.

  46. GPGCR, p. 255.

  47. GPGCR, p. 14.

  48. See, for example, Supreme Court, 12 May 1999, BNB 1999, 271.

  49. Parliamentary Documents II, 2001-2002, 28 331, no. 1.

  50. Parliamentary Documents II, 2001-2002, 28 355, no. 1.

  51. A.W. Heringa, Sociale grondrechten. Hun plaats in de gereedschapskist van de rechter, Zwolle 1989, p. 109.

  52. Central Court of Appeal, 14 March 2011, LJN BP6843.

  53. Sen v. the Netherlands (31465/96), ECtHR 21 December 2001, and Tuquabo-Tekle and Others v. the Netherlands (60665/00), ECtHR 1 December 2005.

  54. Rodrigues da Silva and Hoogkamer v. the Netherlands (50435/99), ECtHR 31 January 2006, and G.R. v. the Netherlands (22251/07), ECtHR 10 January 2012.

  55. Children’s Ombudsman, 6 June 2013, report KOM/003/2013, p. 1.

  56. Salah Sheekh v. the Netherlands (1948/04), ECtHR 11 January 2007.

  57. Council of State, 5 December 2003, JV 2004, 62.

  58. Parliamentary Documents II, 2011-2012, 33 359 (R 1986), no.’s. 1-3.

  59. DPI-Press Releases, Committee on Economic, Social and Cultural Rights starts consideration of report of Netherlands, 5 May 1998, p. 4.

  60. Central Court of Appeal, 29 May 1996, RSV 1997, 9.

  61. Parliamentary Documents II, 1996-1997, 25 524, no. 3, p. 3.

  62. Parliamentary Proceedings II, 1997-1998, p. 4381.

  63. Central Court of Appeal, 14 March 2003, LJN AF5937.

  64. Act of 9 December 2004, Official Bulletin of Acts, Orders and Decrees, 2004, no. 715.

  65. Central Court of Appeal, 22 December 2008, LJN BG8776.

  66. District Court of Utrecht, 6 April 2010, LJN BM0846.

  67. Oyal v. Turkey (4864/05), ECtHR 23 March 2010.

  68. See, for example, Öneryıldız v. Turkey (48939/99), ECtHR 30 November 2004, or Antonov v. Ukraine (28096/04), ECtHR 3 November 2011.

  69. See, for example, Rantsev v. Cyprus and Russia (25965/04), ECtHR 7 January 2010.

  70. See, for example, Siałkowska v. Poland (8932/05), ECtHR 22 March 2007.

  71. See, for example, District Court of The Hague, 9 October 2006, LJN AZ1682.

  72. See, for example, Airey v. Ireland (6289/73), ECtHR 9 October 1979.

  73. Parliamentary Documents II, 1975-1976, 13 932 (R 1037), no. 3, p. 12-13 and 45.

  74. Supreme Court, 17 October 1980, NJ 1981, 141 and District Court of The Hague, 21 January 1982, RvdW/KG 1982, 2.

  75. Supreme Court, 6 December 1983, NJ 1984, 557 and Supreme Court, 12 February 1984, NJB 1984, 45.

  76. Supreme Court, 30 May 1986, NJ 1986, 688.

  77. Civil Service Tribunal Amsterdam, 12 March 1984, NJCM-Bulletin 1984, p. 245.

  78. Central Court of Appeal, 3 July 1986, AB 1987, 299.

  79. Central Court of Appeal, 16 February 1989, AB 1989, 164.

  80. Supreme Court, 14 April 1989, AB 1989, 207 and Council of State 9 August 1990, Jur. ABW 1990, 248.

  81. Supreme Court, 20 April 1990, AB 1990, 338.

  82. Central Court of Appeal, 17 December 1991, RSV 1992, 164.

  83. Central Court of Appeal, 21 January 1994, AB 1994, 504.

  84. Central Court of Appeal, 31 March 1995, JB 1995, 161

  85. See, for example, Central Court of Appeal, 22 April 1997, JB 1997, 158.

  86. District Court of The Hague, 6 September 2000, Rawb 2001, 55

  87. Central Court of Appeal, 25 May 2004, LJN AP0561.

  88. See, for example, Central Court of Appeal, 18 June 2004, LJN AP4680 and Central Court of Appeal, 8 April 2005, LJN AT4112.

  89. E/C.12/NLD/CO/3, § 19.

  90. Central Court of Appeal, 11 October 2007, LJN BB5687.

  91. See, for example, Central Court of Appeal, 22 December 2008, LJN BG8776.

  92. E/C.12/NDL/CO/4-5, § 6.

  93. Central Court of Appeal, 14 December 2010, LJN BO6734.

  94. Central Court of Appeal, 15 July 2011, LJN BR1905.

  95. District Court of The Hague, 11 July 2012, LJN BX0977.

  96. Council of State, 29 January 1981, Gst. 6682 and Supreme Court, 7 May 1993, NJ 1995, 259.

  97. Parliamentary Documents II, 2004-2005, 29 800 V, no. 50, p. 18.

  98. Letter of the Minister for Foreign Affairs, 1 November 2012, DMM/MP-361/12.