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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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.
Continue reading >>
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