The will of the people? The erosion of democracy under the rule of law in Europe.

October 4, 2017 - nr.104
Summary

Conclusions and recommendations

‘The rule of law is not a peaceful property, a house in which we can sleep serenely.’160

This statement, made by the late senator Willem Witteveen in a parliamentary debate on the rule of law in 2014, remains as relevant as ever. Democracy under the rule of law needs constant maintenance, in Europe as elsewhere. Since the turn of the millennium, the increasingly apparent alienation between the institutions of democracy under the rule of law and sections of the population whose circumstances and prospects have become precarious and/or who feel that the nation’s cultural identity is under threat, has created an environment fraught with risk. In several European states, movements with varying degrees of influence have emerged that want to use democratically acquired power to limit the political status and legal safeguards of other population groups. This indicates that, to a large extent, they do not feel that constitutional democracy, i.e. democracy under the rule of law, is in everyone’s interest, including their own.

As pointed out in the introduction to this advisory report, it is an essential but delicate task, when standing up for the rule of law in the international arena, to respect the democratic character of the states concerned and enhance their democratic quality. As societies become ever more complex, rights, obligations and diverse social interests must constantly be weighed against one another and conflicts resolved. This means that all levels of government need to strike a balance between catering to the public’s wishes and making an independent assessment based on the general interest. Due to a large number of developments and factors, which have been described in this report, this balance has gradually been disturbed in recent decades. Many people across Europe now feel that the institutions of democracy under the rule of law mainly benefit others, including ‘the establishment’ or minority groups. This dissatisfaction is fuelling alternative political movements that promise more consultation and more effective government.

In Europe, a broad effort is required to restore and strengthen public support for democracy under the rule of law. It should be clear to all that the rule of law does not hamper democracy but rather bolsters it. There needs to be greater awareness that democracy only benefits all citizens if it is accompanied by rule-of-law safeguards. Citizens also need to know that their voices are being heard at international level. EU institutions must serve the public visibly and tangibly. That is not sufficiently the case at present.

All member states of the Council of Europe and the European Union are responsible for maintaining democracy under the rule of law in Europe. The fact that national governments working together in the EU appear unwilling to call one another to account for the erosion of democracy, the rule of law and human rights does nothing to enhance the EU’s credibility in the eyes of its own citizens. It merely confirms the widespread perception that the EU promises human dignity but does not effectively protect it.

This does not just undermine norms and values that are a key part of the European identity; the stability of Europe, too, is at stake. If the protection of individual rights and minorities is eroded, this rapidly generates domestic tensions, bilateral conflicts and, inevitably, migratory flows that can sometimes assume unmanageable proportions.

And if the erosion of democracy under the rule of law goes hand in hand with the undermining of common EU institutions, as is often the case, those institutions will increasingly be incapable of taking effective action to resolve such crises.

Even if no large-scale escalation occurs, the erosion of democracy under the rule of law eats away at the foundations of interstate cooperation that are important in Europe. Police cooperation, the European arrest warrant, the transfer of asylum seekers under the Dublin system – all these forms of cooperation are based on mutual trust in the quality of legal systems and the protection of the core values of the rule of law. But if the factual basis for that mutual trust disappears, mutual recognition and solidarity will sooner or later also be put in jeopardy.161

In addition to these considerations, a deficient democracy under the rule of law creates an unattractive investment climate. Confidence in constitutional stability and in the fair and effective public administration of justice is, after all, essential. Without such confidence, investors will be forced to resort to arbitration and other forms of investment protection; they will then have to contend with both increasingly critical public opinion and legal objections.162

Recommendations

Below the AIV will make a number of policy recommendations concerning how the Netherlands can work in the appropriate international bodies and bilaterally to preserve the constitutional structures of democracy under the rule of law from (further) erosion. The Netherlands must be prepared to swim against the tide and continue its engagement on this issue, with a view to preventing the operation of the democratic system from eroding its own principles.

It needs to be completely clear, of course, that such efforts should support states’ democratic functioning – taking account of their historically acquired characteristics; a democracy’s procedural and substantive features must not be further torn apart, but rather woven together in a more convincing manner. This requires respect for the diversity that can exist among the member states of the Council of Europe and the European Union. Alignment should constantly be sought with the common fundamental values of democracy and the rule of law as accepted by all the nations concerned. The recommendations made here therefore build on what has been agreed with and by the other states.

There is a need for caution here. For various reasons, there is bound to be some discrepancy between the complexity of the problems described in this report and the recommendations presented below. First, there is no magic bullet that will halt the erosion of democracy under the rule of law in Europe in a simple manner, because numerous complex factors are involved (see chapter II). What is needed is a differentiated approach at various levels: national, international, governmental, societal, etc. Second, a society can only achieve democracy under the rule of law from within. Individuals and organisations from other countries can merely play a supporting role. It stands to reason that the Dutch government – to which many of the recommendations relate – can mainly offer support in the realm of social developments and their anchoring in the rule of law. Third, the political balance of forces in Europe, especially in the European Union, currently offers limited scope for voicing a powerful counter-message. Only a limited number of European countries are firmly committed to defending the principles of the rule of law. Finally, account must be taken of the increased public scepticism towards EU cooperation that has developed in the Netherlands, as in other countries.

1. Increasing institutional responsiveness

Council of Europe

The Council of Europe is the most important organisation in Europe when it comes to setting standards for human rights and monitoring how they are reflected in member states’ legislation, policy and practices. Nevertheless, there appears to be little awareness in Europe of the Council’s importance in this regard. The Netherlands could take the lead in a political re-evaluation of the Council’s importance. This could be done in the following ways:

  1. Working with like-minded countries to secure a greater political role for the Committee of Ministers in monitoring the implementation of judgments of the European Court of Human Rights in the member states. The Committee of Ministers should not restrain the Council of Europe’s independent institutions (the European Court of Human Rights and the European Committee of Social Rights), but support and encourage them.
     
  2. Promoting the implementation of the Brussels Declaration and the Plan of Action on Strengthening Judicial Independence and Impartiality by entering into a twinning relationship with certain countries and helping them to increase knowledge about the Council of Europe and the European Court of Human Rights within government and the judiciary, and among the legal profession and NGOs, to expand national parliaments’ role in implementing judgments by the European Court of Human Rights in the member states and to create an independent national human rights institute.
     
  3. Taking the initiative to expand the Committee of Ministers' traditional focus on civil and political human rights to include the social rights laid down in the European Social Charter. The Netherlands could highlight this by providing extra support for the HELP programme.
     
  4. At set times, the government should provide the Permanent Parliamentary Committees on Foreign Affairs and Justice with confidential information about the deliberations in the Committee of Ministers, especially as regards the implementation of judgments by the European Court of Human Rights.
     
  5. The Netherlands can support reciprocity within the Council of Europe by asking the Venice Commission for advice on Dutch legislation in the event of dilemmas like those concerning the judicial review of legislation and the consequences of referendums.

European Union

  1. Within the EU, the Netherlands must continue its efforts to strengthen the annual rule of law dialogue, as a stepping stone towards a peer review mechanism,163 for which there is still insufficient support in the Union.
     
  2. The Netherlands can join with like-minded countries to form a (possibly informal) group of ‘trailblazers’ that launches a peer review. Such a group can set a positive example of European cooperation for EU citizens, including people in countries that do not yet want to participate. It will show them that ideas on the rule of law can be exchanged in an atmosphere of openness and mutual trust.
     
  3. Some EU member states, notably Poland and Hungary, are currently firmly opposed to the notion that membership of the Union entails certain responsibilities in terms of democracy and the rule of law. At the same time, these countries receive substantial amounts in EU subsidies. In the upcoming negotiations on the EU budget (multiannual financial framework) and how to reform it, the Netherlands should seek to link receipts from the cohesion and structural funds to success in satisfying the original Copenhagen criteria for EU accession.
     
  4. The Netherlands can express support for the European Parliament’s proposal for an    EU Pact for Democracy, the Rule of Law and Fundamental Rights.
     
  5. The Senate and the House of Representatives can play a constructive role in promoting the principles of democracy under the rule of law in Europe by raising this issue with other European national parliaments. Consideration could be given to creating a parliamentary network focusing on practical cooperation and knowledgesharing on linking democracy and the rule of law. This could be done bilaterally, but also, for example, by setting up a trilateral partnership among a number of parliaments. In addition, like-minded leaders of European political parties should enter into a dialogue in their own political group in the European Parliament with those parties that approve measures at national level that undermine democracy under the rule of law.
     
  6. Dialogue should always be preferred over confrontation in international diplomacy. The same applies when addressing the issues of democracy, the rule of law and human rights. Where dialogue repeatedly fails, however, the international community should be willing, as a last resort, to draw a line in the sand. In concrete terms, this means that the Netherlands and its EU partners should make clear that there can be no room for Turkey in the Council of Europe and the European Union if it decides to reintroduce the death penalty.
     
  7. Legislation like Russia’s ‘foreign agent’ law and its abuse of general legislation in respect of NGOs should consistently be condemned by the Netherlands, both bilaterally and internationally, in cooperation with like-minded countries.

OSCE

The Netherlands could in the near future consider launching a candidacy for the Chairmanship of the Organization for Security and Co-operation in Europe (OSCE). This would give it the opportunity to put democratisation and the principles of the rule of law more emphatically on the organisation’s agenda, including in the field of human rights.

G20/OECD

The Netherlands is currently taking part in the G20 at the invitation of Germany, which now holds the Presidency. The Netherlands should strive for ongoing participation in this forum, which is ideally suited for working with like-minded countries to address the adverse consequences of globalisation. As in the OECD, a discussion on this subject should focus not only on trade, investment and development but also on socioeconomic rights, environmental rights and the relationship between government and citizens. The Sustainable Development Goals could provide a useful tool for this purpose.

2. Social diplomacy

The above recommendations are aimed mainly at governments and multilateral institutions. Earlier in this report, however, the AIV stated that international political pressure by governments, however essential, is not sufficient to safeguard democracy, the rule of law and human rights in Europe. Above all, there should be broad support in society for these values, and the public should have confidence in the institutions of democracy under the rule of law. This requires a long-term dialogue with civil society organisations, opposition movements and institutions that can translate international human rights to the national level. The AIV would make the following recommendations for this purpose.

  1. As part of its human rights policy, the Ministry of Foreign Affairs should set up a democracy and rule of law programme that focuses on the member states of the Council of Europe where democracy under the rule of law is in danger. It should also draw on the expertise of other relevant ministries (e.g. the Ministries of Education, of Security and Justice, and of Economic Affairs).

    To support this programme, a rule of law fund should be created. During the next government’s term of office, around €2.5 million per year should be set aside for this purpose in the Ministry of Foreign Affairs budget. The existing MATRA programme, which focuses exclusively on strengthening democracy and the rule of law in candidate and potential candidate countries of the EU and the countries of the Eastern Partnership, can be integrated into this broader rule of law fund. The MATRA programme budget is set to decline from €13.7 million in 2017 to €9.1 million in 2018 and 2019. The AIV recommends that, at the very least, this reduction should be reversed.

    The rule of law fund will support civil society organisations with a regional focus on areas such as the following:

    • People-to-people and profession-to-profession contacts. Through placements and exchanges, knowledge and experience can be shared between socially relevant professional bodies, like the judiciary and legal profession, the ombudsman, educational, knowledge and cultural institutions and the media.
    • Raising public awareness of the value and importance of democracy under the rule of law. This can be achieved, for example, by promoting education in citizenship, democracy and human rights, especially among young people. The expertise of the Council of Europe’s Directorate of Democratic Citizenship and Participation can be used for this purpose.
    • Supporting citizen and other initiatives aimed at research and quality journalism in vulnerable democracies.
     
  2. In international forums dealing with internet freedom and governance (e.g. the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition), the Ministry of Foreign Affairs can devote more attention to the internet’s potential role in strengthening the principles of democracy under the rule of law where they are under threat.
     
  3. The Ministry of Foreign Affairs can work with the private sector (e.g. via major social media platforms and the Global Network Initiative) and NGOs in organising projects on digital citizenship, democracy and human rights. A concrete example is the organisation of a Democracy Hackathon, where European software programmers and website developers work together on ICT products (e.g. an app) that can improve trust between citizens and government (both local and national). This ‘hackathon’ could focus on a different theme every year, such as the internet and privacy, social media etiquette, fake news and fact-checking, as well as services provided by local and national government, migration and election observation.

3. Strengthening the capacity of the Ministry of Foreign Affairs and its missions

  1. The AIV strongly recommends that the policy capacity of the Ministry of Foreign Affairs and Dutch missions in Council of Europe member states be evaluated and, where necessary, expanded with local knowledge. This will enable the ministry and missions to identify and respond quickly to local initiatives and opposition movements in the fields of democracy, the rule of law and human rights. Missions will need to have sufficient funds at their disposal for this purpose.164
     
  2. In its strategic secondment policy, the Ministry of Foreign Affairs could focus more explicitly on both non-governmental and multilateral organisations that exert influence, directly or indirectly, on democratisation and the principles of the rule of law, for example the G20, the OECD and the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition.

__________________________________________________

160 From senator Willem Witteveen’s contribution to the debate on the rule of law, Proceedings of the Senate 2013-2014, 22-5-1 (March 2014).
161 For example, Germany will no longer be able to avoid the decision not to send asylum seekers back to Hungary. See Politico, 11 April 2017, ‘Germany suspends migrant returns to Hungary – Hungary’s been criticized for detaining migrants in camps on its border with Serbia’, <http://www.politico.eu/article/ germany-suspends-migrant-returns-to-hungary/>.
162 See case C-284/16 (Achmea), now pending before the EU Court of Justice, which, among other things, revolves around the question of whether the Dutch-Czech arbitration agreement is compatible with EU law.
163 See the earlier recommendation for a peer review in AIV advisory report no. 87, The Rule of Law: Safeguard for European Citizens and Foundation of European Cooperation, The Hague, January 2014, pp. 35-37.
164 See also AIV advisory letter no. 32, Representing the Netherlands Throughout the World, The Hague, May 2017.
Advice request

The advisory report The will of the people? The erosion of democracy under the rule of law in Europe has been prepared by the Advisory Council on International Affairs at its own initiative.

Government reactions

Letter of 26 January 2018 from the Minister of Foreign Affairs, Halbe Zijlstra, the Minister of the Interior and Kingdom Relations, Kajsa Ollongren, and the Minister of Justice and Security, Ferdinand Grapperhaus, to the House of Representatives presenting the government’s response to the AIV advisory report ‘The Will of the People? The Erosion of Democracy under the Rule of Law in Europe’

Introduction

This letter outlines the government’s response to advisory report no. 104 ‘The Will of the People? The Erosion of Democracy under the Rule of Law in Europe’, published by the Advisory Council on International Affairs (AIV) in June 2017.  

The AIV produced this advisory report on its own initiative, prompted by its observation that the member states of the Council of Europe, including the member states of the European Union, are confronted by tensions relating to essential features of democracy under the rule of law. The AIV believes that dissatisfaction with the present, uncertainty about the future and rapid changes in a globalising world have driven a section of the European population to fall back on national frames of reference. The AIV also states that existing institutions have little control over people’s growing alienation from the traditional institutions on which democracy and the rule of law are based. It believes that citizens in certain countries have placed their trust in parties that regard pluralist democracy under the rule of law as an obstacle to the implementation of their programmes.

The AIV notes that promoting the international legal order is an important instrument for strengthening human rights and observance of the principles of democracy under the rule of law. Organisations like the Council of Europe and the European Union play a key role in this regard. The AIV believes that it is important for the Netherlands, both on its own and through the European institutions, to endeavour to prevent further erosion of democracy under the rule of law in Europe. It also believes that more attention should be focused on communicating the value of a pluralist democracy more effectively, and that this is in the Netherlands’ direct interest because further erosion of democracy under the rule of law in Europe will impact present-day prosperity, peace and security.

The government thanks the AIV for its valuable report, which in many respects describes the widely recognised importance that the Netherlands has long attached to committed efforts to strengthen the rule of law in Europe and beyond. These efforts are reflected in the Netherlands’ policy on developing the rule of law, human rights, and reinforcing and consolidating pluralist democracy.

The government takes the AIV’s recommendations seriously and views them as an incentive to maintain its commitment to defend the rule of law, in line with its constitutional duty to promote the development of the international legal order. The AIV does not deal at length with the situation in the Netherlands in its report ‘since its statutory remit is confined to advising on issues of an international character’. Nevertheless, the government recognises the need to ensure the coherence of internal and external policy in this field. In this letter the government takes a closer look at the AIV’s conclusions and recommendations.

General remarks and the government’s objectives

The government endorses the AIV’s statement that a strong commitment to the rule of law is essential for cooperation within the European Union and outside it. Millions of individuals and businesses depend on good governance and a Union based on the principles of equality before the law and legal certainty. The European Union is a community of values. The Netherlands shares fundamental values such as freedom, democracy, equality, the rule of law and respect for human rights with other EU member states. That is why it has regarded the defence and strengthening of these universal and indivisible values as a priority for many years. A strong legal order is also important for the functioning of the single market, as it contributes to a reliable business climate.

If these values are challenged from within and no longer respected by all member states, this will stoke mutual mistrust, which could ultimately have far-reaching consequences for the Union’s effectiveness and credibility. It goes without saying that the EU must be able to prevent internal divisions on fundamental values. Responsibility for this lies primarily with the member states, but also with the EU institutions.

The government believes that a multi-pronged approach makes it possible to strike the right balance between bilateral and multilateral channels, and between an institutional, technical and/or political approach that focuses on the situation both within the European Union and outside it. For instance, through its missions in the accession countries in the Western Balkans the Netherlands has created a rule of law network, which focuses on supporting and monitoring reforms and preparing the Dutch position to be adopted in Brussels. As part of its multi-pronged approach, the Netherlands also focuses on encouraging and actively influencing multilateral institutions, such as the EU and the Council of Europe – as endorsed by the AIV report. The Netherlands can only do this by working with like-minded partners. After all, support in all countries is essential for bolstering the rule of law in both the short and long term.

In line with the multi-pronged approach, funding rule of law efforts requires a tailor-made strategy. The government makes a tangible contribution to strengthening the rule of law in Europe and beyond through several funds that seek to achieve specific goals in different geographical regions. Specific situations call for specific solutions. That is why the government has decided not to follow the AIV’s recommendation to set up a separate rule of law programme and fund. Instead, it will continue to use the existing instruments and, where possible and appropriate, make additional funds available for rule of law initiatives. This is explained in more detail below.

Responses to conclusions and recommendations

1. Increasing institutional responsiveness

1.1 Council of Europe

The AIV’s recommendations concerning the Council of Europe largely relate to the European Court of Human Rights (ECtHR) and the European Committee of Social Rights (ECSR). The AIV recommends that these institutions should not be restrained, but supported and encouraged. As regards the ECtHR, it also recommends:

  • a greater political role for the Committee of Ministers of the Council of Europe in monitoring the implementation of ECtHR judgments in the member states;
  • providing the Permanent Parliamentary Committees on Foreign Affairs and Justice at set times with confidential information about the deliberations in the Committee of Ministers, especially as regards the implementation of ECtHR judgments;
  • promoting the implementation of the Brussels Declaration and the Plan of Action on Strengthening Judicial Independence and Impartiality by entering into a twinning relationship with certain countries and helping them to increase knowledge about the Council of Europe and the ECtHR within government, the judiciary and the legal profession and among NGOs, to expand national parliaments’ role in implementing ECtHR judgments in the member states and to create an independent national human rights institute.

As regards the ECSR, the AIV recommends:

  • taking the initiative to expand the Committee of Ministers’ traditional focus on civil and political human rights to include the social rights laid down in the European Social Charter. The Netherlands could highlight this by providing extra support for the HELP programme.

Finally, the AIV recommends supporting reciprocity within the Council of Europe by asking the Venice Commission for advice on Dutch legislation in the event of dilemmas like those concerning the judicial review of legislation and the consequences of referendums.

The Council of Europe is an important institution for setting standards in the fields of human rights, democracy and the rule of law. Monitoring and technical or other assistance are two of the primary instruments for ensuring compliance with these standards. The Netherlands’ efforts in the Council of Europe concentrate mainly on the implementation and supervision of existing obligations that states have assumed and on strengthening their capacity to fulfil these obligations, with a focus on both civil and political human rights and socioeconomic human rights.

In the Committee of Ministers (CM) the Netherlands seeks to ensure that all monitoring mechanisms function properly. It also advocates a more active role for the CM in supervising member states’ compliance with ECtHR judgments. Four times a year, the CM holds a three-day human rights meeting , which focuses on supervising the execution of ECtHR judgments that are binding on the member state concerned. The Netherlands actively participates in these meetings and has gained a respected position at them. Its main focus is on the progress made in the cases on the agenda, without making distinctions among the countries concerned. Recently the Netherlands and like-minded countries secured the use of a new instrument, based on article 46, paragraph 4 of the European Convention on Human Rights, in the case of Mammadov v. Azerbaijan: the referral to the ECtHR of the question whether Azerbaijan had failed to fulfil its obligation to execute the judgment.1

The Netherlands has also pressed for a platform to be offered to non-governmental organisations that follow the ECtHR. In this way the Netherlands makes a substantial contribution to strengthening the CM’s role in supervising compliance with ECtHR judgments and it will continue these efforts, in cooperation with like-minded countries as far as possible.

The Council of Europe characterises the Dutch government’s provision of information to the House of Representatives on ECtHR case law as a ‘good practice’. Through reports on international human rights proceedings, the House is informed annually about ECtHR judgments in cases against the Netherlands. The House is also informed at regular intervals about developments in the Council of Europe, for example after the annual ministerial meeting. In addition, the Dutch delegation in the Parliamentary Assembly has an important role in exerting influence and expanding public support for ECtHR judgments and other human rights measures. On special request, the House also receives information on, for example, ECtHR judgments, as in the above-mentioned case of Mammadov v. Azerbaijan.2

The Netherlands also supports the implementation of the Brussels Declaration (2015), in which the member states – following the Brighton Declaration (2012) – reiterated their support for further strengthening the ECHR supervisory system by, for example, stepping up efforts to reduce the ECtHR’s workload. The court’s workload can be reduced by strengthening the implementation of the ECHR at national level (through legislation, parliamentary action and effective legal remedies). In addition, priority should be given to the underlying action plans, such as the one on strengthening judicial independence and impartiality.

The Council of Europe carries out various programmes in member states that are largely funded by the EU. Twinning is aimed, inter alia, at knowledge transfer and capacity building with regard to the Council of Europe and the ECtHR within government and other relevant actors, such as the judiciary, the legal profession, NGOs and independent national institutions. Twinning also allows attention to be paid to enabling national parliaments to shoulder their responsibility in executing ECtHR judgments, primarily by providing useful information. The Netherlands has developed its own approach to twinning. For instance, the Netherlands contributes through the Council of Europe’s Human Rights Trust Fund to projects aimed at improving the implementation of the ECHR and of ECtHR judgments (€200,000 in 2017). In addition, it recently contributed €100,000 to the Council of Europe Action Plan for Ukraine 2018-2021.

The Netherlands also works closely with both the Council of Europe and individual member states in various projects aimed at strengthening the rule of law. This involves long-term, bilateral cooperation, ad hoc provision of expertise or financial support for projects. One of these projects is the Programme for Human Rights Education for Legal Professionals (HELP), which focuses on education about the ECHR specifically for legal professionals. HELP was launched in March 2006 as a tool for teaching national judges and public prosecutors about ECHR requirements and ECtHR case law. The Netherlands has made a financial contribution to HELP for several years. At present the EU finances a HELP programme in EU countries that focuses partly on social rights (‘HELP in the 28’).

The government also seeks to ensure that the rights set out in the European Social Charter (ESC) are respected. The Netherlands is one of the 15 countries that have ratified the Additional Protocol to the Charter, which enables international non-governmental organisations to submit complaints to the ECSR about inadequate application of social rights. The Netherlands also regularly calls on other member states to sign and ratify the protocol.

The ECSR’s findings on such complaints are not binding on the member state concerned. This means that the CM’s role in this complaints procedure differs from its role in relation to ECtHR judgments. The CM can adopt the ECSR assessment in a resolution or recommendation addressed to the member state in question, but is not obliged to do so. By means of this procedure, the member states of the Council of Europe have ensured that together they have the final word in the ESC procedure by taking account of socioeconomic policy considerations. In this connection, the Netherlands believes it is important to engage in dialogue with the ECSR on its findings, and also on procedures and work methods, and it makes active use of all appropriate means to this end, both in the CM and in other forums. The CM also instructed the Steering Committee for Human Rights to study compliance with social rights. Its findings will also be used to decide whether supervision of observance of social rights needs to be modified.

Finally, as regards the AIV’s recommendation concerning the Venice Commission, it should be noted that the Netherlands highly values the Commission’s work and calls on the participating states to continue working actively together. The government is open to the Commission’s recommendations on national legislative procedures, but there is still no specific proposal for policy in this regard.

1.2 European Union

Within the EU, the Netherlands must continue its efforts to strengthen the annual rule of law dialogue, as a stepping stone towards a peer review mechanism, for which there is still insufficient support in the Union. The Netherlands could join with like-minded countries to form a (possibly informal) group of ‘trailblazers’ that launches a peer review. Such a group could set a positive example of European cooperation for EU citizens, including people in countries that do not yet want to participate. It would show them that it is possible to exchange ideas on the rule of law in an atmosphere of openness and mutual trust. Some EU member states, notably Poland and Hungary, are currently firmly opposed to the notion that membership of the Union entails certain responsibilities in terms of democracy and the rule of law. At the same time, these countries receive substantial EU subsidies. In the upcoming negotiations on the EU budget (multiannual financial framework) and how to reform it, the Netherlands should seek to link receipts from the cohesion and structural funds to success in satisfying the original Copenhagen criteria for EU accession. The Netherlands can express support for the European Parliament’s proposal for an EU Pact for Democracy, the Rule of Law and Fundamental Rights.

Strengthening the rule of law in the EU requires joint political efforts by the EU member states and the EU institutions. As far as the member states are concerned, it is not just governments that must act; parliaments, political parties, civil society, the business community, subnational authorities and scholars also have a vital role to play in the dialogue on the rule of law. The importance of the rule of law for European cooperation also assumes a clearer, more concrete form in the context of the cooperation between these actors. This broad political-social approach needs to be combined with a more institutional-political approach at European level, with the institutions playing a significant role in monitoring the rule of law in the member states. This could involve establishing a link between the rule of law and the multiannual financial framework, but it could also involve a peer-review mechanism, such as the pact for democracy, fundamental rights and the rule of law, as proposed by the European Parliament. The government considers both approaches important for the long-term strengthening of the rule of law in the EU member states.

The Netherlands is firmly committed to equipping the EU and its member states with better tools for discussing the development of the rule of law in member states, protecting the rule of law and keeping related developments permanently on the agenda of bilateral contacts as well as EU meetings. As the AIV report recognises, the Netherlands has helped strengthen the annual rule of law dialogue and, partly thanks to its efforts, the number of like-minded countries has considerably increased, as has the support they give to the European Commission’s role and its rule of law mechanism (see Parliamentary Papers 21 501-02 no. 1758 and no. 1776). The government will continue its efforts to further expand this group of like-minded member states. The government maintains close contacts with the rotating Presidency of the Council of the European Union and is satisfied with the way the previous Presidency in 2017 pursued the annual rule of law dialogue in the General Affairs Council, including the focus on the media and freedom of expression. An agreement has been made to evaluate this annual thematic discussion in 2019.

As the AIV report states, since last year the General Affairs Council has also been the place where the European Commission can report on its dialogue with the Polish government in the framework of the Commission’s rule of law mechanism, a process that is still under development, as shown by the steps taken by the European Commission on 20 December 2017.3 This lays the basis for discussing the rule of law situation in EU member states. The government agrees with the AIV that these are significant steps towards expanding EU instruments, but that they are still very fragmented and, as a result, the problem is not being adequately addressed. Together with like-minded member states and the European institutions, the Netherlands will therefore initiate a discussion on possible new steps to further improve or supplement the existing instruments. One such step would be discussion of a peer review system, as proposed by the AIV and several other member states. The government is keen to ensure that efforts to introduce a peer review mechanism do not undermine the discussion of specific rule of law developments in the General Affairs Council, as this practice has been developed with great care. In addition, ways of safeguarding the effectiveness and efficiency of such a mechanism will have to be explored. Subject to these conditions, further research should be conducted on how the peer review referred to by the AIV could be given shape. This investigation should make optimum use of existing justice instruments, such as the EU Justice Scoreboard and the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ). The government is also adamant that respecting the values set out in article 2 of the Treaty on European Union is the responsibility of all member states. The formation of a lead group is therefore not the most obvious choice, though searching for member states willing to play a leading role may be an initial step towards creating a peer review mechanism for Justice and Home Affairs.

Some EU member states and members of the European Commission, like the AIV, have suggested establishing a link between compliance with rule of law principles and receipt of EU funds. The Netherlands is pushing for a modern, future-oriented and financially sustainable multiannual financial framework (MFF) for the EU and advocates a closer link between spending EU funds and achieving EU objectives. In this connection, the Netherlands has asked the Commission to examine how a link could be established between structural and investment funds and rule of law principles. The Commission is expected to present an initial proposal for the new multiannual financial framework in 2018, and will examine whether there is sufficient support in member states for effectively making such a link. In addition to political support, the technical and legal feasibility of such a link is another significant consideration.

Finally, as noted in the State of the European Union 2018 (Parliamentary Paper 34841, no. 1), well-functioning institutions in the member states are important for the functioning of the single market. These institutions should ensure consistent enforcement and application of single market rules. This will contribute to a stable and attractive business climate.

In international diplomacy dialogue is always preferable to confrontation. The same applies when addressing the issues of democracy, the rule of law and human rights. Where dialogue repeatedly fails, however, the international community should be willing, as a last resort, to draw a line in the sand. In concrete terms, this means that the Netherlands and its EU partners should make clear that there can be no room for Turkey in the Council of Europe and the European Union if it decides to reintroduce the death penalty.

The government is of the opinion that the reintroduction of the death penalty by Turkey would be incompatible with accession to the European Union. The Presidency conclusions of the General Affairs Council meeting of 13 December 2016 state that unequivocal rejection of the death penalty is an essential requirement for EU membership, as well as part of Turkey’s international obligations, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocol 13. In this connection, the government also endorses the declaration by the Secretary-General of the Council of Europe to the effect that no member of the Council of Europe may carry out the death penalty, and that Turkey has ratified the protocols to the ECHR that prohibit the death penalty in all circumstances.

Legislation like Russia’s ‘foreign agent’ law and abuse of general legislation in respect of NGOs should consistently be condemned by the Netherlands, both bilaterally and internationally, in cooperation with like-minded countries.

Legislation imposing restrictions on civil society, like the Russian ‘foreign agent’ law, is a growing problem worldwide. In addition to legislation, governments use a wide range of instruments to restrict the freedom of expression, association and assembly and the right to receive foreign funding and use various excuses to justify these restrictions. Such threats to the political space for civil society organisations not only undermine individual human rights, but also impede a country’s sustainable development. After all, civil society organisations represent the voice of the people and can persuade government authorities to be more accountable. They can contribute to more open and robust democracies, a more favourable business climate and equal opportunities for all. The Netherlands is concerned about the shrinking space for civil society and consistently raises this issue.

Bilaterally, the Netherlands uses the Human Rights Fund, the social transformation programme (MATRA) and the Dialogue and Dissent policy framework to invest worldwide in the capacity of civil society organisations to perform their political and independent role. Dutch missions in countries like Russia, Turkey and Egypt support civil society organisations in resisting the growing pressure they face. The Ministry of Foreign Affairs also supports Dutch NGOs’ efforts to strengthen local partners in a large number of countries. During his visits, the Human Rights Ambassador conveys the Netherlands’ concerns about the space for civil society, as he did recently in India, China, Kazakhstan, Ethiopia and Saudi Arabia. Naturally, the government also raises the situation of human rights defenders in its bilateral contacts.

Multilaterally, the Netherlands supports, for example, recurring resolutions on human rights defenders and freedom of association and assembly at the UN General Assembly and in the Human Rights Council. It also monitors participation by civil society organisations in the public debate in the UN. In the Human Rights Council’s Universal Periodic Review, the Netherlands makes recommendations, to Rwanda, Belarus and Qatar, for example, concerning the space for civil society. It also makes an active contribution to the ProtectDefenders.eu project, urges the EU Special Representative for Human Rights to act on this issue, and works through its missions, together with its EU partners, to implement the EU Action Plan on Human Rights and Democracy and the EU Guidelines on Human Rights Defenders. In our cooperation with the Community of Democracies, our contribution to CIVICUS and our work via the International Donor Group (supporting civil society organisations), the Netherlands consistently puts the shrinking space for civil society on the international agenda.

1.3 OSCE

The Netherlands could in the near future consider launching a candidacy for the Chairmanship of the Organization for Security and Co-operation in Europe (OSCE). This would give it the opportunity to put democratisation and the principles of the rule of law more emphatically on the organisation’s agenda, particularly in relation to human rights.

Democratisation and the rule of law are already priorities on the OSCE’s agenda, particularly in the area of human rights. The Netherlands has frequently advocated this in the past and will continue to do so in the future. In its further deliberations on its stance on the rule of law, the government will assess whether a Dutch candidacy for the Chairmanship of the OSCE would have any added value for the efforts it already makes in that body.

1.4 G20/OECD

The Netherlands is currently taking part in the G20 at the invitation of Germany, which now holds the Presidency. The Netherlands should strive for ongoing participation in this forum, which is ideally suited for working with like-minded countries to address the adverse consequences of globalisation. As in the OECD, a discussion on this subject should focus not only on trade, investment and development but also on socioeconomic rights, environmental rights and the relationship between government and citizens. The Sustainable Development Goals could provide a useful tool for this purpose.

The government regards it as a success that the German Presidency invited the Netherlands to participate in the G20 summit, all G20 ministerial meetings and the preparatory official-level meetings in 2017. For a country like the Netherlands, with its open and internationally oriented economy, it is important to be able to sit at the table with the world's leading industrialised and emerging economies  to discuss global issues – and the associated opportunities and challenges – that confront all countries with significant policy choices and, in many cases, demand a common approach. Its participation enabled the Netherlands to demonstrate its ability to play an effective and constructive role on the world stage. It will therefore strive for ongoing participation in the G20 and is pleased to have received an invitation from the Argentine Presidency to participate as a guest country in 2018. Incidentally, this was not the Netherlands' first time attending G20 meetings. The Netherlands took part in a number of G20 summits between 2008 and 2010. In recent years it has also been involved in the G20’s trade-related meetings and, as holder of the Presidency of the European Union, participated in G20 meetings on financial matters in the first half of 2016.

2. Social diplomacy

As part of its human rights policy, the Ministry of Foreign Affairs should set up a democracy and rule of law programme that focuses on the member states of the Council of Europe where democracy under the rule of law is in danger. It should also draw on the expertise of other relevant ministries (e.g. the Ministries of Education, of Justice and Security, and of Economic Affairs). To support this programme, a rule of law fund should be created. During the next government’s term of office, around €2.5 million per year should be set aside for this purpose in the Ministry of Foreign Affairs budget. The existing MATRA programme, which focuses exclusively on strengthening democracy and the rule of law in candidate and potential candidate countries of the EU and the countries of the Eastern Partnership, can be integrated into this broader rule of law fund. The MATRA programme budget is set to decline from €13.7 million in 2017 to €9.1 million in 2018 and 2019. The AIV recommends that, at the very least, this reduction should be reversed.

The rule of law fund would support civil society organisations with a regional focus on areas such as the following:

- People-to-people and profession-to-profession contacts. Through placements and exchanges, knowledge and experience can be shared between socially relevant professional bodies, like the judiciary and legal profession, the ombudsman, educational, knowledge and cultural institutions and the media.
- Raising public awareness of the value and importance of democracy under the rule of law. This can be achieved, for example, by promoting education in citizenship, democracy and human rights, especially among young people. The expertise of the Council of Europe’s Directorate of Democratic Citizenship and Participation can be used for this purpose.
- Supporting initiatives by citizens and others aimed at investigative and quality journalism in vulnerable democracies.

The Netherlands is pursuing many different avenues to strengthen democracy under the rule of law in the Council of Europe member states in order to create long-term stability and security in Europe. As described above, the government opts for a broad, multi-pronged approach, both politically and in society at large. To this end, use will be made of various funds, each of which has its own approach. For instance, conducting a dialogue on the rule of law in the EU and supporting projects to that end require a different approach than comparable efforts aimed at countries outside the EU. There is no fixed blueprint for supporting democracy under the rule of law. Different countries and situations require different approaches. The government believes that it is precisely because the Netherlands does not use a single fund for this purpose that it is able to tailor its approach to specific countries and situations, in accordance with the framework for Dutch cooperation with the country concerned.

This enables the government to make a substantial contribution to strengthening the rule of law. The Netherlands does this not only in Europe but also outside it. In Europe its bilateral efforts focus on the rule of law, and particularly on judicial independence, human rights, public access to government information, media freedom  and minority rights. In addition to the efforts noted by the AIV, the Netherlands provides technical assistance relating to the rule of law to members of the Council of Europe. In line with the European Union’s enlargement policy, the Netherlands also contributes to projects that promote the rule of law in pre-accession countries. For example, as mentioned above, the Netherlands has created a rule of law network in the Western Balkans. This network is aimed at influencing and monitoring the necessary rule of law reforms in the countries concerned and strengthening the reforms as far as possible. Another example is the Netherlands’ involvement in the Prosecutors’ Network of the Western Balkans. The Ministry of Justice and Security provides experts for this network, which is aimed at strengthening the institutional capacity of the countries in the Western Balkans to tackle cross-border crime. The Netherlands is involved in the EU-funded International Monitoring Operation, responsible for vetting judges and public prosecutors in Albania. It also provides expertise to accession countries via twinning projects. In addition, it provides expertise to Romania on combating human trafficking and cybercrime. In Bulgaria the Custodial Institutions Agency is working to improves the prison system. The Netherlands also makes staff available to various missions with a view to strengthening the rule of law. Examples include the Dutch contribution to EULEX Kosovo, the EU Advisory Mission (EUAM) and the OSCE missions in Ukraine. Finally, the Netherlands conducts a bilateral political dialogue on the rule of law with other countries where appropriate.

These efforts highlight the importance the government attaches to the fundamental values of the rule of law in Europe. That is why, in response to the AIV advisory report, the government will expand its existing efforts wherever possible, by reserving money within existing funds for small-scale activities aimed at strengthening bilateral ties with other countries on the rule of law. The government fully shares the AIV’s view that focusing on people-to-people and profession-to-profession contacts, raising public awareness of the importance of democracy under the rule of law, and supporting initiatives to promote investigative and quality journalism are important. Current efforts on the rule of law are already largely focused on these issues, but by reserving money within existing funds the government seeks to provide extra support in countries that specifically need it. Where there are currently capacity problems in actually providing this extra support, the government will examine how this can best be addressed.

The project-based approach to the rule of law is most effective if it promotes cooperation between experts and civil society. Missions already carry out projects aimed at small-scale technical assistance and knowledge sharing between the Netherlands and the countries concerned, in cooperation with the various parts of the criminal justice system, institutions such as the ombudsman, supreme audit institutions, and anti-corruption/anti-fraud offices and NGOs active in the rule of law field. This assistance is transparent and based on requests from the countries concerned, and provides an opportunity to make a constructive contribution to the debate on the rule of law in these countries through small-scale cooperation. This is also shown by the evaluation of earlier networks on the rule of law.

The MATRA programme (part of the Dutch Fund for Regional Partnerships) is aimed at democratisation, the development of the rule of law, a pluralist civil society and the position of minorities in the target countries. Projects are managed by the Ministry in The Hague or via the missions in the Eastern Partnership countries and the pre-accession region. MATRA complements EU policy in the region and, thanks to the fund’s flexibility, it can respond effectively to current developments and to the specific local situation, which differs from country to country. In addition to building capacity and strengthening institutions in the target countries, the programme also focuses on developing and enhancing Dutch bilateral relations with them, thus improving the Netherlands’ position in the region. In 2016 and 2017 the budget for the Dutch Fund for Regional Partnerships (NFRP), including MATRA , was increased on a one-off basis. At the time the 2018 budget was being prepared, no decision had yet been made on increasing the contribution to the NFRP in 2018 and beyond. An assessment is currently being made to determine how and to what extent the House of Representatives’ wish to increase the NFRP budget can be met. As part of this process, the government wants to make a thorough comparison of the different programmes within the Ministry, including their effectiveness. In the spring, the government will send the House a letter containing further details about this.

In international forums dealing with internet freedom and governance (e.g. the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition), the Ministry of Foreign Affairs can draw more attention to the internet’s potential role in strengthening adherence to the principles of democracy under the rule of law where it is under threat.

The Netherlands has long played a leading role internationally in the area of internet freedom. Its message is that a free, open and secure internet is essential for a well-functioning democracy under the rule of law in which fundamental freedoms such as freedom of expression online are respected. The Netherlands highlights the issue of internet freedom as part of its policies on both security and human rights.

The Netherlands is one of the most active countries in the Freedom Online Coalition (FOC), which it founded. This coalition organises an annual conference and works to expand the framework of international standards for respect for human rights online. For the digital safety and security of human rights defenders, the Netherlands funds, inter alia, the Digital Defenders Partnership and Access Now.

In international forums, including the Internet Governance Forum and the Global Conference on Cyber Space, and also in UN forums, the Netherlands constantly highlights the importance of a free, open and secure internet. In these forums it also emphasises the value of the multi-stakeholder model so that the expertise of the private sector, civil society organisations and other parties is explicitly included in diplomatic efforts on internet freedom and governance.

Denying internet access is a measure that harms democracy under the rule of law. UN resolutions can be used to call states to account for such actions . The Netherlands recently made a successful effort to include condemnation of network shutdowns in the UN General Assembly resolution on the safety of journalists, building on the FOC declaration on this issue and the expertise of the NGO Access Now. This new resolution gives civil society organisations a concrete tool for calling states to account if they block access to the internet.

The Ministry of Foreign Affairs can work with the private sector (e.g. via major social media platforms and the Global Network Initiative) and NGOs in organising projects on digital citizenship, democracy and human rights. A concrete example is the organisation of a Democracy Hackathon, where European software programmers and website developers work together on ICT products (e.g. an app) that can improve trust between citizens and government (both local and national). This ‘hackathon’ could focus on a different theme every year, such as the internet and privacy, social media etiquette, fake news and fact-checking, as well as services provided by local and national government, migration and election observation.

In formulating and implementing its international cyber and human rights policy, the government works actively with the private sector and civil society organisations. For example, the Ministry of Foreign Affairs has a partnership with RNW Media, which promotes active citizenship by creating online communities, especially in countries where democracy under the rule of law is in jeopardy. The Ministry of Foreign Affairs now has an established tradition of organising hackathons. Since 2013, several missions have organised hackathons to jointly tackle specific complex problems. The Netherlands is signalling in this way that it wants to work with relevant actors on an equal footing. In 2016 it organised a hackathon on human rights at the office of the UN High Representative for Human Rights in Geneva. As a result, an app was developed for confidentially sharing and verifying evidence of human rights violations. The Ministry of Foreign Affairs is keen to consolidate the results of hackathons, so that their outcomes can be built upon.

3. Strengthening the capacity of the Ministry of Foreign Affairs and its missions

The AIV strongly recommends that the policy capacity of the Ministry of Foreign Affairs and Dutch missions in Council of Europe member states be evaluated and, where necessary, expanded with local knowledge. This will enable the ministry and missions to identify and respond quickly to local initiatives and opposition movements in the fields of democracy, the rule of law and human rights. Missions will need to have sufficient funds at their disposal for this purpose. In its strategic secondment policy, the Ministry of Foreign Affairs could focus more explicitly on both non-governmental and multilateral organisations that exert influence, directly or indirectly, on democratisation and the principles of the rule of law, for example the G20, the OECD and the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition.

In mid-2018 the House of Representatives will receive the government’s response to the AIV’s advisory letter on the mission network, ‘The Dutch Government’s Presence Abroad’ (May 2017). In accordance with the recommendations concerning the arc of instability on Europe’s eastern and southern flanks, the government will also look at the missions’ capacity for supporting the rule of law.

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1 See Parliamentary Paper 32735, no. 175, 16 November 2017.
2 See Parliamentary Paper 32735, no. 175, 16 November 2017.
3 http://europa.eu/rapid/press-release_IP-17-5367_en.htm
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