Getting a Grip on Migration but Mind European Law!
On September 13, the new Dutch government led by Dick Schoof outlined its programme for the next years. Unsurprisingly, a major point of this programme regards asylum and migration, for which the greatest ambition is to install the strictest regime ever and to include the Netherlands within the category of Member States of the European Union with the strictest admission rules. This post reviews these proposals through the lens of European Law to challenge their legal feasibility and flag the potential incompatibility with Dutch obligations stemming from EU and international law.
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Tackling Israel’s Interference with the International Criminal Court
On 8 October 2024, The Guardian reported that a criminal complaint had been filed in the Netherlands in connection with the shocking (yet unsurprising) revelations published by The Guardian, +972 Magazine, and Local Call on 28 May concerning hostile state activities targeting the International Criminal Court (ICC). The criminal complaint is both timely and viable and should lead to the expeditious opening of an investigation by the Dutch prosecution service. The political response by the Dutch and other governments of ICC States so far is insufficient to address the problem of interference with the ICC investigation in the Situation in the State of Palestine.
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The Strictest Asylum Policy Ever?
On 13 September 2024, ahead of the presentation of the State Budget, the new Dutch coalition presented their finalized plan to implement what it has labelled as the strictest admission regime ever in the field of asylum law. To implement its Outline Agreement, titled ‘Hope, Courage and Pride,’ the government plans to rely on an derogation provision in the Dutch Aliens Act 2000. We argue that the provision does not apply to the current situation and that the Dutch government therefore does not have the jurisdiction to render parts of the Dutch Aliens Act 2000 inoperative.
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Rethinking EU Law Beyond the Liberal Feminist Paradigm
In K,L v Staatssecretaris van Justitie en Veiligheid (‘K,L’), the CJEU decided that a belief in the value of gender equality associated with the lifestyle of the westernized woman be regarded as a reason for persecution. While the decision contributes to a gender-sensitive EU asylum law, I argue that the CJEU’s classification of the young women’s belief in the value of gender equality as ‘identificatory’ (as opposed to ‘religious’ or ‘political’) perpetuates a long-standing criticism of the liberal feminist paradigm.
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A Collision Foretold
On 16 May, four Dutch parties presented a new governing agreement (Agreement). The four parties PVV, VVD, NSC, and BBB will form one of the most right-wing governments in Dutch history. They vow to impose the strictest migration policy to date. The proposed migration measures under the Agreement endanger the fundamental rights of migrants and people applying for international protection. The plan also put the Netherlands on a collision course with the EU as many of the measures are contrary to the provisions in the EU Migration Pact, which was adopted last week.
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Dutch Court Halts F-35 Aircraft Deliveries for Israel
In a landmark decision, the Hague Court of Appeal ordered the Dutch government on 12 February 2024 to stop supplying Israel with F-35 fighter jet parts because there was a “clear risk” that serious violations of international humanitarian law (IHL) would be committed with the aircraft in Gaza. In their unanimous decision, the three judges relied on the European Union (EU) Common Position on Arms Exports and the Arms Trade Treaty as they apply to Dutch law, which outline criteria against which military exports must be assessed to determine the risk of abuse. The judgment made important findings on the nature of these risk assessments, which may have significant implications in future litigation.
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Milieudefensie v ING: Climate Breakdown and Banks’ Duty of Care
There is a trend towards climate lawsuits against companies based on their alleged duty of care not to emit more than a certain amount of greenhouse gases (GHGs). Currently, there are four such cases before courts in Germany, all of which have been unsuccessful so far. On 19 January 2024, Milieudefensie, a Dutch environmental group, initiated legal proceedings against the Dutch Bank ING, for the first time raising the issue of whether financial actors have such a duty of care. This case represents a significant milestone in the worldwide effort to transform the financial sector and curb its seemingly endless appetite for financing fossil fuels. In light of these proceedings, I argue that the German courts have adopted an imprecise understanding of what the duty of care entails and that an appropriate application of this duty can increase the accountability of financial actors.
Continue reading >>Dutch Rule of Law Alert
It is never a good sign when Viktor Orbán celebrates the election results of another country. Last Wednesday was one of those days. For the first time in the history of Dutch politics, a far-right party became by far the biggest party in the Dutch parliament. It is bad news in many respects, and even more, because the Dutch constitutional system knows a lack of formal rule of law safeguards. In contrast to countries such as Italy or Germany, the Dutch constitutional system is not prepared for a democratic move to the anti-liberal far right.
Continue reading >>A Scandal on AI in Administration, Again
After the infamous Dutch benefits scandal, the Netherlands are yet again the scene of wrongful application of an algorithm by the government. This time, the main actor is the Dienst Uitvoering Onderwijs (DUO), the Dutch agency responsible for the allocation and payment of student loans to those enrolled in Dutch higher education. Specifically, DUO used an algorithm in their enforcement task, namely to verify whether the student loans have been rightfully allocated. In 2012, DUO commenced the use of this ‘in-house’ algorithm, which the Minister of Education – under whose responsibility DUO falls – halted on 23 June. The developments in the Netherlands epitomize the promises and pitfalls of further integrating automated decision-making (ADM) into public administration. On the one hand, ADM – sometimes labelled ‘artificial intelligence’ – is cheap and promises efficiency gains. On the other hand, ADM systems may be error-prone when facing the complex realities of societal life and legal ambiguity.
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Achmea Goes to Washington
Recently, a US District Court trashed a Dutch company's arbitral award against Spain. Why? Because investor-state arbitration within the EU violates European law. Yet, many tribunals keep issuing arbitral awards - especially under the infamous Energy Charta Treaty. Challenging those awards in domestic courts outside the EU, like here in Washington D.C., might work as corrective to the continuing illegal assumption of jurisdiction and blatant disregard for the EU Treaties by arbitral tribunals.
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The Dutch Asylum Policy for Russian Draft Evaders
In a one page letter of 13 December, the Dutch state secretary for immigration Eric van der Burg explained to Dutch parliament how asylum claims made by Russian draft evaders will be dealt with. The new Dutch policy makes a distinction between Russian conscripts and Russians reservists who attempt to evade the mobilisation which the Russian president announced last September. Conscripts will continue to enjoy a form of temporary protection in the Netherlands. Asylum claims of Russians who evade mobilisation will, however, be decided on an individual basis. Importantly – and controversially – the state secretary suggests that claims of the latter category may now be denied because the Russian mobilisation has been completed.
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Inequality of Harms, Inequality of Arms
On November 8th 2022 Channa Samkalden, lawyer for Esther Kiobel and three other widows of executed Nigerian community leaders, announced that her clients would be ending their lawsuit against Shell. Uncertainty about the outcome, combined with the fact that the case had already been (unsuccessfully) going on for over 20 years in multiple fora, had made the four widows decide to withdraw the appeal, “not without disappointment and frustration”. In this blog, I discuss this case's remarkable procedural history and why it, set against the particular facts of the case, illustrates the fundamental procedural unfairness between large corporations and victims trying to hold them to account.
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Picking Primacy over Procedural Autonomy
On 8 November, the Grand Chamber of the Court of Justice of the European Union (‘the Court’) decided that national courts are required to ascertain of their own motion whether detention of an illegally staying foreign national or asylum seeker is lawful. This judgment is an example of the ever-growing impact of EU law on national procedural rules, especially in the migration law area. The judgment is also noteworthy because of the difference in approach between, on the one hand, the Court and, on the other hand, the Dutch referring courts and AG Richard de la Tour.
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Shifts in Historiography
Today, there appears to be more consensus about the unjust nature of the Dutch/Indonesian war. As a scholar who has studied the evolution of the discourse on this topic, being asked to contribute to a symposium about the relation between decolonisation and human rights, is the perfect occasion to look back.
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The Dutch Family Reunification Procedure
Being able to reunite with family from abroad falls under the right to family life, one of the fundamental rights every individual is entitled to. Despite this, some Dutch family reunification requirements are potentially at odds with international human rights law standards and the EU Directive 2003/86/EC on the right to family reunification. This problematic state of affairs reflects the ongoing racialization of European borders, and that of Dutch borders in particular.
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The Racialized Borders of the Netherlands
The principal function of borders in immigration law is to distinguish between persons and goods which are permitted to enter a territory and those which are not. I call this the filtering function of the border. In this short contribution, I enquire into how this filtering function of the border operates in the context of border controls in the Netherlands. More specifically, I argue that the way border controls are performed in the Netherlands structurally produces racialized subjects.
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Postcolonial Migration and Citizenship in the Netherlands
Can formerly colonized subjects and their descendants be full and equal citizens of the former metropoles – and if so, what would that look like? In this blogpost, we explore these politics of belonging in European postcolonial polities by looking at different conceptualizations of the relationship between the Dutch state and Surinamese-Dutch citizens and immigrants. While Dutch government discourses tend to represent Surinamese-Dutch as too different to belong to the Dutch Nation, Surinamese-Dutch organisations claimed postcolonial citizenship as different and equal.
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Rights for Others, Firing Back?
Colonialism and decolonization have importantly shaped the constitutional trajectories of not only the colonized states, but also those of the colonizers. For the Netherlands, decolonization did not only dictate the pace of various constitutional reforms in the mid-20th century that were ‘needed’ to erase Indonesia (1948) and New Guinea (1963) from the text of the constitution, but also introduced new constitutional documents, such as the 1949 Dutch-Indonesian Union Charter and the 1954 Charter of the Kingdom. While it is necessary to critically analyze the impact of these postcolonial arrangements on former colonies, it is equally urgent to fill the profound gap in knowledge about the impact of colonialism and decolonization on domestic constitutional arrangements.
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The European Convention of Human Rights’ Colonial Clause and the End of Empire
In this post, I would like to shed light on an important, yet generally overlooked aspect of the European Convention of Human Rights, namely that it was drafted at a time when many of the member states of the Council of Europe were still important colonial powers. While European empires in Asia were in decline and the Netherlands was in the process of withdrawing from Indonesia, this was not the case in what was then called New Guinea, Surinam or the Antilles. Colonial empires in Africa, for their part, were still well established and the question of the territorial application of the Convention was hotly debated in the drafting process. What were the implications of this link between human rights and empire?
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Aggression, War Crimes, and the Indonesian Revolution
The specter of the Indonesian Revolution is still haunting our understanding of Dutch imperial violence. In this blog post, I want to highlight two central issues regarding the conflict’s legal history – one involving the alleged non-application of the laws of war to the conflict which has been a mainstay argument in Dutch official narratives, and the other regarding the ways in which we delineate today our legal-moral reasoning with respect to Dutch transgression.
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The Grotian Myth and Dutch Modern Imperialism
The self-image of The Netherlands as a nation with a legalist (or Grotian) approach to international affairs has turned a blind eye to how Grotian legal reasonings and arguments have been used to legitimize Dutch colonialism and to shape the post-colonial structure of international law.
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Decolonization and Human Rights: The Dutch Case
Human rights and decolonization have a complicated relationship. From their inception in the mid-20th century as normative features of the nation-state, human rights co-existed with imperial colonial systems. As aspirational values molded on the Western philosophical tradition, human rights also served as empowering tools in the moment of decolonization while simultaneously hampering claims to national independence. This is why, in the engagement with the ongoing legacies of colonialism, we have embarked on this symposium to examine human rights both as a language of critique and as a constitutive part of the imperial legacy.
Continue reading >>Das Cannabis-Dilemma
Die zukünftige deutsche Bundesregierung will Cannabis legalisieren. Wie das alles konkret umgesetzt werden soll, wird sich zeigen. Worüber erstaunlich wenig diskutiert wird, ist die Frage, ob die Legalisierung rechtlich überhaupt realisierbar ist. Europa- und völkerrechtlich bestehen hohe Hürden, die eine vollständige Legalisierung von Cannabis sehr schwierig, wenn nicht sogar unmöglich machen.
Continue reading >>Grinding the Orange Axe
On October 18th, 2021, the Venice Commission adopted its opinion on the Dutch childcare benefit scandal and highlighted, albeit reluctantly, several shortcomings regarding the Netherlands’ adherence to the rule of law: A lack of parliamentary scrutiny, a disrupted flow of information in bureaucratic bodies and the need for constitutional review. Despite the opinion’s inherent potential to provide a thorough substantive addition to the rule of law conversation, it fails at doing so due to its evasiveness and its hesitance to address complicated Dutch customs, such as the current caretaker cabinet.
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Constitutional Review in Sight?
On 18 October, the Venice Commission published its first ever opinion on the Netherlands dealing with the Childcare Allowance Scandal. It includes a list of rather detailed recommendations for the legislator, the executive and the judicial branch, also pointing at the prohibition of constitutional review which is one of the hallmarks of the Dutch Constitution. While its conclusions are not groundbreaking, the opinion of the Venice Commission must be welcomed for highlighting the crucial connection between individual justice, proportionality and fundamental rights.
Continue reading >>The Courts Strike Back
The Shell case, decided by the Hague District Court on 26 May 2021, is part of a growing body of climate cases. What the Shell case does is that it liberates the political-decision maker from the suffocating grip of investor state dispute settlement mechanisms, in particular the mechanism under the Energy Charter Treaty.
Continue reading >>The Power of Open Norms
In a judgement of 26 May, the District Court of the Hague found that Royal Dutch Shell has an “individual responsibility” to limit its carbon emissions by at least 45 percent by 2030. Notable about the ruling is the unwritten standard of care functioning as an open norm, facilitating the accountability of private power. The openness of legal categories not only entails a potential to drive forward social change, but it also implicitly highlights the political role and nature of private law.
Continue reading >>Shell’s Climate Obligation
On 26 May, the District Court of The Hague ruled that the fossil fuels company Royal Dutch Shell needs to reduce its emissions by 45 percent by 2030, compared to 2019. Precisely, the court held Shell responsible for its entire production and supply chain. The ruling will greatly advance the implementation of Article 2 of the Paris Agreement and climate-related human rights.
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Shell’s Responsibility for Climate Change
On 26 May 2021, the District Court of the Hague rendered a judgment in the case Milieudefensie v Royal Dutch Shell that can rightly be called revolutionary. This is the first judgment of its kind in which a multinational corporation is held responsible, in part based on international law, for its contribution to climate change.
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COVID-19 in the Netherlands: of Changing Tides and Constitutional Constants
Along with Covid, the Government’s response, and the growing public unrest, came a continuing string of constitutional questions and developments, that is unlikely to diminish anytime soon. Building on the abovementioned Verfassungsblog post, we will discuss the main constitutional Covid-19 highlights, largely chronologically. Throughout we will pay particular attention to three recurring and interrelated themes: the evolving role of Parliament in shaping the political and legal response to Covid-19, the relevance and varying intensity of judicial control in pandemic times, and the omnipresence of fundamental rights concerns.
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Judges vs the Executive Branch
Last Friday, the Dutch Appeal Court of The Hague overturned a judgment of the District Court of the Hague which had made headlines in the Low Countries and beyond by enjoining an immediate end to the curfew imposed by the government to curb coronavirus infections. The case illustrates in dramatic fashion the tensions arising from the necessity to balance freedom and public health while tying into the more institutional question of the separation of powers between the judicial and executive branch. At the same time, the case casts light on the growing assertiveness of Dutch courts on matters of general policy-making.
Continue reading >>If the Message Doesn’t Suit, Shoot the Messenger
The attack on Dimitry Kochenov for being involved in "passport trade" raise a question of academic freedom: When do an academic’s views or actions put them beyond the pale?
Continue reading >>“Passport Trade”: A Vicious Cycle of Nonsense in the Netherlands
“How can you justify the fact that your work was translated into Russian? This goes against the claim that you engage in academic work. Is Russian not the language of billionaires interested in getting another citizenship?” Following the persistent repetition of this question by a four-person independent investigation committee installed by my home University, my lawyer, seeing that I have no words – indeed, am unable to speak – asks for a break and leads me out of the room. We sit on the steps in front of the beautiful Academy building. This is Groningen, January 2020, I am a Dutch professor of European Constitutional Law and Citizenship here and Russian is my mother tongue.
Continue reading >>The Netherlands: Of Rollercoasters and Elephants
The Dutch authorities take a quasi-legal, quasi-rhetorical approach to shape their intelligent lockdown and try to tame the pandemic beast, with questionable constitutional practices as a result. While the reliance on medical and other expertise might be a welcome difference compared to some other countries, overreliance on experts in communication may hide real political and legal choices that have been made.
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Fact Check: Is there a ‘Muzzle Law’ for Dutch Judges in the Making? No!
A few days ago the suggestion was made that a draft law is in the making in the Netherlands to prevent Dutch judges from ruling on politically sensitive issues. Should we worry about this? I think not.
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Urgenda III: Die Niederlande als Modell richterlichen Klimaschutzes
Mit dem Klima-Urteil des Hohen Rats ist die niederländische Gerichtsbarkeit endgültig zum weltweit bestaunten und umjubelten Vorbild einer Bewegung geworden, die unter dem Schlagwort der „Climate Justice“ bemüht ist, die dritte Gewalt für die Durchsetzung einer entschiedeneren Klimaschutzpolitik zu aktivieren. Im Kern der rechtlichen Auseinandersetzung geht es um die Frage nach der Entscheidungsmacht der Gerichte in der gewaltenteiligen Demokratie. Dürfen oder müssen Richter für sich in Anspruch nehmen, zwingende Vorgaben für den Klimaschutz zu entwickeln?
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The Dutch Climate Case Judgment: Human Rights Potential and Constitutional Unease
The Dutch climate case has reached a new high. Last week, The Hague Court of Appeal upheld the 2015 verdict which ordered the state to reduce greenhouse gas emissions by 25% by 2020. The Court did so on the ground that the current actions of the Dutch government to combat climate change are insufficient in the light of the state’s human rights obligations. Has the Court gone too far?
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Wozu muss der Verlust der Unionsbürgerschaft verhältnismäßig sein?
Als Bürger der Europäischen Union darf mir die Bundesrepublik Deutschland nicht einfach meine deutsche Staatsbürgerschaft wegnehmen, ohne dabei zu prüfen, ob das zu den Folgen, die das für mich hat, in einem vernünftigen Verhältnis steht. Davor schützt mich europäisches Recht, dass mein Staat das mit mir macht. Das hatte vor acht Jahren im epochalen Fall Rottmann der EuGH entschieden. Wird der Luxemburger Gerichtshof diese Rechtsprechung jetzt wieder relativieren?
Continue reading >>The Right to Fair Trial and the Rise of Sensitive Intelligence Evidence: Responses from the Dutch and UK Courts
Writing extra-judicially, Lord Justice Brown once described the typical court […]
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Wilders vs. the Dutch Constitution: Constitutional Protection against Discriminatory Policies
Geert Wilders' Freedom Party stands a fair chance of becoming the largest party after the elections next week. His political programme is blurry at best, but parts of it - such as a ban of the Quran - are clearly unconstitutional. Will the constitutional system in the Netherlands be robust enough to withstand this challenge?
Continue reading >>Towards a Solution for the Ratification Conundrum of the EU-Ukraine Association Agreement?
The ratification process of the EU-Ukraine Association Agreement has been stalled following "No" victory in the Dutch referendum of 6 April 2016. Yesterday, the EU heads of states have adopted a decision addressing the Dutch concerns. The option which is currently on the table is by far the easiest to solve the ratification conundrum while responding to the arguments of the ‘no-camp’ in the referendum campaign. Any alternatives, such as the inclusion of formal reservations or a procedure leading to a Dutch withdrawal from the agreement, entail the risk of long-term legal uncertainty which would only be detrimental for the EU, the Netherlands and Ukraine.
Continue reading >>Geert Wilders’ “Incitement to Discriminate” Trial
Months before the parliamentary elections in the Netherlands, the leader of the far-right Freedom Party and election favorite Geert Wilders finds himself before a criminal court. He is charged with insulting and inciting discrimination against residents of Moroccan descent by promising his supporters "fewer Moroccans" in 2014. Wilders and his defence seem to invoke the theory of the ‘marketplace of ideas’, which is a common line of thinking in United States First Amendment law. The principal standard for Dutch courts however, the European Convention of Human Rights, takes a somewhat different stance.
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Lokale Zuzugssperren für Arme: für Straßburg kein Freizügigkeitsproblem
Das Recht auf Freizügigkeit hat es schwer in diesen dunklen Tagen in Europa. In der EU sowieso, wo die Freiheit, sich grenzüberschreitend in Europa frei zu bewegen und niederzulassen, massiv unter Beschuss ist. Der Europäische Gerichtshof für Menschenrechte (EGMR) hat heute ein Urteil veröffentlicht, das die innerstaatliche Freizügigkeit betrifft – das ganz normale Recht von Staatsbürgern, im eigenen Land überall hinziehen zu dürfen, wo man hinziehen möchte, ohne dass der Staat sagen darf, dich wollen wir hier nicht. Mit diesem in Art. 2 Prot. 4 EMRK verankerten Grundrecht, zu dem es bislang nicht viel Judikatur gibt, weiß der Straßburger Gerichtshof offenbar nicht viel anzufangen.
Continue reading >>What will happen if the Dutch vote ‘No’ in the Referendum on the EU-Ukraine Association Agreement?
On 6 April 2016, a referendum on the approval of the EU-Ukraine Association Agreement will be held in the Netherlands. This is the direct result of a new law that gives citizens the right to initiate a so-called ‘corrective’ referendum to refute decisions taken at the political level. If the "No" camp prevails, as polls suggest it will, that would not be a victory for democracy as proclaimed by the Dutch initiators of the referendum but rather the opposite. Allowing a relatively small part of the population in a relatively small member state to block the entry into force of an agreement which is approved by the national parliaments of 29 countries and the European Parliament would be very cynical. It would also undermine the consistency and legitimacy of the EU’s external action taking into account that other, largely comparable agreements would remain unaffected.
Continue reading >>“Ich bin nicht Stiller!”: Sexuelle Identität lässt sich nicht amtlich feststellen
Homosexuelle, denen in ihrer Heimat Verfolgung droht, können in der EU Asyl beantragen. Aber was, wenn die Behörden ihnen die Homosexualität nicht glauben? Dazu ist ein Verfahren beim EuGH anhängig. Generalanwältin Sharpston nimmt in ihren Schlussanträgen die Praxis, Homosexualität amtlich feststellen zu lassen, nach allen Regeln der Kunst auseinander.
Continue reading >>Asylschutz gilt auch (und gerade!) für offen auftretende Homosexuelle
Ein Leben als Closet Gay ist keine Fluchtalternative. Wer in […]
Continue reading >>EuGH korrigiert strikte Linie der ersten Instanz zu Anti-Terrorlisten
Der EuGH hat heute zwei Entscheidungen veröffentlicht, an denen Eric […]
Continue reading >>EuGH nimmt sich der Rechte von Drittstaats-Ausländern an
Unser famoser Innenminister findet es gemeinsam mit seinem französischen Kollegen […]
Continue reading >>Ne Bis in Idem: Manchmal hält doppelt tatsächlich besser
Darf man einen Mörder nicht mehr bestrafen, wenn er im […]
Continue reading >>Menschenrechte: Die Niederlande setzen ihre Glaubwürdigkeit aufs Spiel
Von ANJA MIHR Es fing vor genau einem Jahr an, […]
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