Fundamental rights in the Kingdom of the Netherlands: equivalent protection in all parts of the KingdomSeptember 13, 2018 - nr.107
Conclusions and recommendations
As a matter of principle, human rights treaties should be applicable to the entire territory of the Kingdom of Netherlands owing to the universality of human rights and the need for consistency in internal and international policy. Moreover, since 10 October 2010 formal arrangements have been made for territorial extension and agreements have been concluded to make this possible in practice, namely in the form of a mutual arrangement within the meaning of article 38, paragraph 1 of the Charter for the Kingdom of the Netherlands on cooperation between countries in the implementation of treaties. The obvious course of action would be to apply these arrangements when approving human rights treaties and treaties that can have a clear impact on the protection of human rights, such as the Paris Agreement.
In practice, however, it is apparent that territorial extension of human rights treaties cannot always be achieved, at least not in the short term. Sometimes this is because Aruba,Curaçao and St Maarten take a long time to deliberate on the desirability of extension. In the great majority of cases, however, the reason why human rights treaties are not ratified for the Caribbean parts of the Kingdom is that implementing measures must be in place for a treaty to enter into force. Introducing implementing measures often proves difficult in these parts of the Kingdom. Although the Netherlands could and should offer support and could and should initiate action on a treaty-by-treaty basis to draw up an implementation plan and time frame in mutual cooperation and on the basis of equality, this remains in practice a responsibility of the individual countries. Although this is correct in a formal sense, it is reasonable to expect the Netherlands to make a concerted effort since it generally has greater implementing capacity. It is worrying that various line ministries do not always know what progress has been made by the autonomous Caribbean countries or the BES islands in drawing up implementing measures.
Various explanations have been given above for the limited application of a number of human rights treaties and the Paris Agreement in the Caribbean part of the Kingdom. Some of these explanations are of an institutional nature in the sense that the Netherlands is wary of intervening too quickly in the islands’ affairs. Others are of a more practical nature in the sense that the limited administrative capacity available on the islands sometimes makes it hard to introduce implementing legislation quickly and adequately. One final explanation is the lack of effective coordination and sufficient knowledge on the part of central government in the Netherlands.
In view of these findings, the AIV makes the following recommendations:
The Kingdom of the Netherlands must always base its decision to conclude a human rights treaty on the substantive objectives and content of the treaty in question. The basic principle must be that human rights treaties are applicable throughout the entire Kingdom.
Convincing reasons must be given if a decision is made to limit territorial application.
As the BES islands form part of the Dutch constitutional order and a divergent system of human rights cannot be justified by a ‘fundamental distinction’ within the meaning of article 132a of the Constitution, any such differences between the Caribbean and European parts of the Netherlands must be ended
Human rights are universal. Protection from discrimination and people smuggling, for example, is important for everyone, regardless of where they live. This means that for the purposes of a human rights treaty it makes no difference, in principle, whether people live in the European or the Caribbean part of the Kingdom. Human rights should apply equally to all Dutch citizens and other inhabitants of the Kingdom. Moreover, from the perspective of consistent policy it is only logical that they should apply to the entire Kingdom. In its foreign policy the Netherlands regularly recommends that a treaty be applicable to the entire territory of the contracting states. The credibility of this policy would be undermined if the Netherlands itself were then to permit a limitation of territorial application.
Hitherto, the practice in respect of every treaty has been to inquire explicitly whether territorial extension is desired and to extend application only if this question is answered in the affirmative. In view of the above, however, the opposite principle should apply in the case of human rights treaties and treaties such as the Paris Agreement that are clearly relevant to human rights. Such a treaty must apply throughout the entire Kingdom, unless it would be reasonable to make an exception to the principle in view of its substantive objectives and content.
In view of the great significance of human rights, insufficient administrative capacity at local level, defective coordination or knowledge on the part of Dutch ministries or the costs of implementation should not be permitted to result in failure to apply these treaties. Human rights are of such importance to all Dutch citizens and other inhabitants of the Kingdom that in discussions about the application of human rights treaties only limited weight can be given to arguments for legislative restraint. Limited administrative capacity in the Caribbean part of the Kingdom may not remain a reason for deferring territorial extension. On the contrary, it should instead be a reason for intensifying the cooperation and support provided by the Netherlands and for assisting the Caribbean countries and public bodies, naturally on the basis of equality among the four countries.
The ultimate objective is to ensure that human rights treaties are applicable to all people living in the Kingdom of the Netherlands. This is the criterion by which all measures and decision-making processes must be assessed. A change of policy is necessary in order to replace the wait-and-see approach by more active cooperation between the governments of the different parts of the Kingdom after a treaty has been ratified by the Kingdom. To this end the following recommendations are made.
If the Kingdom government decides on a temporary territorial limitation when ratifying a treaty, it should as a matter of course draw up an implementation plan (including the financial consequences) for all countries of the Kingdom, as referred to in article 2 of the mutual arrangement within the meaning of article 38, paragraph 1 of the Charter for the Kingdom of the Netherlands on cooperation between the countries in the implementation of treaties. The Dutch government should take the initiative in this connection. The implementation plans should be sent with the request for parliamentary approval to the States General and also shared with the parliaments of Aruba, Curaçao and St Maarten.
Within Dutch central government the Ministry of the Interior and Kingdom Relations has primary responsibility for the cooperation between the different parts of the Kingdom, as referred to in recommendation 3. The role of this ministry in coordinating the application of human rights treaties should be strengthened. This should also be the aim of this ministry’s coordinating role within the Rijksdienst voor Caribisch Nederland (National Office for the Caribbean Netherlands, RCN).
The States General should be informed annually in the Explanatory Memorandum to the Kingdom Relations Budget (chapter IV of the Central Government Budget) about the progress made in executing the implementation plan referred to in recommendation 3.
Knowledge within central government in the Netherlands regarding the structure of the Kingdom of the Netherlands should be increased and cooperation between the countries of the Kingdom should be improved.
In view of the importance of human rights treaties, there should be stricter observance of the agreements laid down in mutual arrangements as referred to in article 38, paragraph 1 of the Charter for the Kingdom of the Netherlands on cooperation between the countries for implementation of treaties, and the Dutch government should heed the numerous calls by the Council of State to adopt implementation plans and time frames prior to ratification of human rights treaties (recommendation 3). The Dutch government can reasonably be expected to take the initiative in this respect, given the relatively limited administrative capacity in the Caribbean part of the Kingdom and the ample coordinating and implementing capacity available in the Netherlands. However, coordination and cooperation between the Dutch ministries requires attention(recommendation 4). The main coordinating role should preferably be given to the Ministry of the Interior and Kingdom Relations, since it already plays this role in relation to Kingdom affairs. Implementation of recommendation 5 would allow greater parliamentary scrutiny of the main issues discussed in this advisory report. Clearly, any actual improvement will also be dependent on the ministries and parliament paying more attention to and having a greater understanding of Kingdom relations and the relevant legislation (recommendation 6).
The advisory report Fundamental rights in the Kingdom of the Netherlands: equivalent protection in all parts of the Kingdom has been prepared by the Advisory Council on International Affairs at its own initiative.