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Abstract
This article examines the implementation of the recommendations (COs) of the committee monitoring the Convention on the Elimination of Racial Discrimination (CERD) and the causal mechanisms leading to compliance. It is shown that these non-binding COs for the Netherlands have been ineffective in terms of securing compliance. One reason for this is the limited usefulness, legitimacy and persuasiveness of CERD and the COs. Another more important reason is the absence of domestic mobilisation in relation to CERD's COs. By analysing some effective COs of the committees monitoring the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women, this article demonstrates that COs might still be effective when other actors than the government, such as parliament and national courts, take action on the basis of COs. It is shown that action and attention of parliament and national courts is dependent upon the lobbying work of NGOs, which is crucial for the effectiveness of COs.
Acknowledgements
This research is part of a more extensive PhD research that will be conducted from November 2009 until November 2013 and focuses on state reporting under the six main UN human rights treaties. The author would like to thank Theo van Boven, Malte Brosig, Timofey Agarin as well as the anonymous reviewers for their comments on the first draft. All errors remain the author's sole responsibility.
Notes
1 CERD is composed of 18 independent experts ‘of high moral standing and acknowledged impartiality elected by States Parties from among their nationals, who shall serve in their personal capacity’, as Article 8 ICERD provides. The legal basis for the system of state reporting is provided by Article 9 ICERD. Note that CERD is also able to receive state communications (Article 11) and communications from individuals on the basis of Article 14 ICERD.
2 The system of reporting is based on a so-called constructive dialogue between a treaty monitoring body and representatives of a state party. Input for the dialogue comes from periodic reports submitted by states, plus alternative information presented by non-governmental organisations. Examination of a state report ends with the adoption of COs by the treaty body. COs contain suggestions and recommendations for an improved implementation of the treaty standards by the state concerned.
3 The focus of this article is on the period after 1995, in which the situation in the Netherlands has been considered four times by CERD, in 1998, 2000, 2004 and 2010. Concluding observations of the Committee on the Elimination of Racial Discrimination, ICERD/C/304/Add.46, 30 March 1998. ICERD/C/304/Add.104, 1 May 2001. ICERD/C/64/CO/7, 10 May 2004. ICERD/C/NLD/CO/17-18, 25 March 2010.
4 Policies or legislation could be in line with the COs without them having had any role whatsoever in policy decisions. Compliance with COs may, thus, occur without any (additional) policy or legislative measures. For this reason, one has to determine whether COs have led to (an adjustment of) policy or legislative measures. According to Raustiala ‘an effective rule is simply a rule that leads to observable, desired behavioural change. Effectiveness is the measure of that change’ (2006, p. 394). What distinguishes effectiveness from compliance is the causal impact of legal rules or recommendations on the government's behaviour.
5 Note that this article does not aim to offer an in-depth and comparative analysis of the effectiveness of the COs of the CERD, CRC and CEDAW committees. The experience with CRC and CEDAW is primarily used to illustrate that the COs of the CRC and CEDAW committees have been more effective because of the greater extent of mobilisation of domestic actors, including parliament, NGOs and courts.
6 This article has chosen the concept of effectiveness instead of implementation or compliance, because effectiveness also implies a causal relation between (implementing) measures and the COs. See supra note 5.
7 For the attention of the government and parliament, use was made of the online database for parliamentary papers, Parlando (parlando.sdu.nl). I searched for ‘rassendiscriminatie’ AND verdrag’ (269 results) in the period of 1 January 1995 until 5 April 2010. Additionally, a search was performed with the terms ‘IVURD’ (one result), ‘ICERD’ (seven results), ‘IVRD’ (seven results), ‘IVUR’ (11 results), ‘rassenverdrag’ (four results), ‘antiracismeverdrag’ (four results) and ‘ICERD’ (79 results). On 23 December 2010 an updated search was performed with the new database zoek.officielebekendmakingen.nl. For court judgements, a search was performed with ‘IVURD’, ‘ICERD’, ‘IVRD’, ‘antiracismeverdrag’, ‘rassenverdrag’, ‘verdrag ter uitbanning van alle vormen van discriminatie’ and ‘VURD’ (all 0 results), ‘IVUR’ (one result), ‘internationaal verdrag inzake de uitbanning van alle vormen van rassendiscriminatie’ (eight results), ‘ICERD’ (four results) and ‘rassendiscriminatie’ AND ‘verdrag’ (16 results) in the online database www.rechtspraak.nl (30 June 2010). For the analysis of the impact of the COs and ICERD on the media (printed press), use was made of the Lexis Nexis newspaper search engine that provides access to five of the major countrywide newspapers: De Volkskrant, NRC Handelsblad, Trouw, Het Parool and AD/ Algemeen Dagblad. On 30 June 2010 a search was conducted to ‘rassendiscriminatie’ AND ‘verdrag’ for the period 1 September 1994 and 30 June 2010 (65 results). Additionally, a search was performed with the terms ‘IVURD’, ‘ICERD’, ‘IVRD’ and ‘rassenverdrag’ (0 results each), ‘antiracismeverdrag’ (four results), ‘ICERD’ (12 results), ‘rassendiscriminatie’ and ‘comite’ (42 results). For the lobbying of NGOs, a systematic search of several websites of NGOs was conducted on 30 June 2010 via google with ‘ICERD’, IVUR, ‘ras’ AND ‘Comité’ and ‘rassendiscriminatie’. The websites consulted: www.njcm.nl, www.art1.nl (Dutch National Association Against Discrimination (Art. 1 and formerly Landelijk Bureau Rassendiscriminatie (LBR)), www.commissie-meijers.nl (Standing Committee of Experts on International Immigration, Refugee and Criminal law), www.amnesty.nl (Dutch section of Amnesty International) and www.vluchtelingenwerk.nl (Dutch Council for Refugees). Furthermore, www.forum.nl (Institute for multicultural affairs), www.acvz.com (Advisory Committee on Migration Affairs), www.onderwijsraad.nl (Education Council) and www.cgb.nl (Equal Treatment Commission).
8 Hakimi argued in relation to the experience of the United States before the treaty monitoring bodies in recent years that it is unlikely that states accept as law the norms advanced by actors and institutions, such as the treaty bodies, if they consider them illegitimate or merely aspirational.
9 Thirty-six interviews were conducted with (former) Dutch government officials from six different ministries involved in the process of state reporting. Note that 12 were involved in the process of state reporting under ICERD. Furthermore, 19 NGO representatives were interviewed, of which five were considerably involved in the process of state reporting and the drawing up of shadow reports in relation to ICERD.
10 See for example ICERD/C/64/CO/7, 10 May 2004, para. 10: ‘The Committee encourages the State party to continue monitoring all tendencies which may give rise to racist and xenophobic behaviour and to combat the negative consequences of such tendencies’. Or para. 11: ‘The Committee encourages the State party to continue its efforts to combat this contemporary manifestation of racial discrimination’.
11 See for example ICERD/C/304/Add.104, 1 May 2001: ‘The Committee expresses concern at de facto school segregation in a number of localities and recommends that the State party undertake further measures to reduce de facto segregation’. See also ICERD/C/64/CO/7, 10 May 2004, para. 10: ‘The Committee recommends that the State party take adequate policy measures to ensure proper representation of ethnic minority groups in the labour market’.
12 Information received from Netherlands on the implementation of the concluding observations of CERD, C/NLD/CO/17-18/Add.1, 2 August 2011.
13 ECRI was established in 1994 as a CoE institution consisting of 47 expert members entrusted with the task of, amongst others, reviewing and monitoring member states' legislation, policies and other measures to combat racism, racial discrimination, xenophobia, antisemitism and intolerance. One of its most important task is the country-by-country monitoring in the context of which ECRI closely examines the situation concerning manifestations of racism and intolerance in each of the CoE member states. Note that ECRI is not a treaty body since it does not monitor the implementation of treaty obligations.
14 In its response to the report of ECRI that is attached to the report itself, the government stated that it did not share all the conclusions and recommendations of ECRI. Amongst other things, the tone of the political and public debate, the policy for Roma and Sinti, the Antillean Reference Index, the Urban Areas (Special Measures) Act, the scope of the Equal Treatment Act, education and awareness raising. See the response of the government of the Netherlands to ECRI's draft third report 2003–2007 in the annex to ECRI's third report on the Netherlands (CRI (2008) 3), 45–51.
15 The motion requested the government to draw up an action programme on anti-Semitism. Parliamentary Papers II 2009/10, 32123 VI, no. 111, 24 June 2010.
16 COs of the CRC committee that have been – partly – effective concern the prohibition of corporal punishment, the amendment prescribing that juvenile offenders would be housed separately from children institutionalised for behavioural problems and the amendment which made it impossible to impose a life imprisonment on anyone between the age of 16 and 18. COs of the CEDAW committee that have proven to be effective to a certain extent were the Law on Names, in relation to which a working group was established as a result of extensive parliamentary pressure. In addition, attention was paid by the government to the fact that the policy on violence against women is couched in gender-neutral wording.
17 A/56/38(SUPP), para. 219-220. CEDAW/C/NLD/CO/4, para. 25-26. CEDAW/C/NLD/CO/5, para. 10.
18 Parliamentary Papers II 2001/02, szw0000961, 2. Fourth periodic report of state parties, CEDAW/C/NLD/4, 47-48. The government also refused to withdraw its appeal against the judgment of the Court of Justice, as recommended by the CEDAW committee, because it considered the matter to be very principal.
19 During the broadcast of the television programme NOVA on 9 April 2010, the then Minister of the Interior and Kingdom Relations, Ernst Hirsch Ballin, stated that the judgement of the Supreme Court is fully respected and that, thus, new legislation was needed. The political party SGP has, nevertheless, submitted a complaint before the ECtHR. The current government has therefore decided to wait for the final judgement of the ECtHR to take effective measures.
20 LJN: BK4547, Supreme Court, 08/01354, paras. 4.5.5, 4.6.1 and 4.6.2.
21 LJN: BC0619, Court of Justice, 05/1725, para. 5.10.
22 See paras. 1.4, 2.20 and 2.21 of the conclusion by Mr F. F. Langemeijer, LJN: BK4547, Supreme Court, 08/01354.
23 CRC/C/15/Add.114, para. 12. CRC/C/15/Add.227, para. 8, 20 and 21. CRC/C/NLD/CO/3, para. 8, 16 and 17.
24 Parliamentary Papers II 2009/10, 31831, nr. 1–3 and nr. 9, 20.
25 The Minister of Foreign Affairs did send parliament the combined fifteenth and sixteenth periodic state report (2003) and the combined seventeenth and eighteenth report (2008). The thirteenth and fourteenth periodic reports (2000) were, however, not sent to parliament.
26 Parliamentary Papers II 1997/98, nr. 1148, 10 March 1998. Parliamentary Papers II 1997/98, nr. 1283, 27 March 1998. Parliamentary Papers II 2001/02, nr. 1265, 24 May 2002. Parliamentary Papers II 2000/01, 27412, nr. 3, 6.
27 The motion was proposed by Lambrechts (D66), Hamer (PvdA) and Rabbae (GL). Parliamentary Papers II 2001/02, 28000 VIII, nr. 71, 29 November 2001.
28 According to the members of parliament, the Netherlands would not ‘be entitled to speak’ internationally without an extension of the Act. Parliamentary Papers II 2003/04, 29275, nr. 3, 9 and 14–15.
29 LJN: BH0496, Court of Justice Amsterdam, K08/0309.
30 LJN: BA5410, District Court Haarlem, AWB 05-2090 and 05-2093 WWB.
31 The Dutch section of the International Commission of Jurists (NJCM) and the Dutch National Association Against Discrimination (Art. 1 and formerly Landelijk Bureau Rassendiscriminatie (LBR)) have drawn up separate commentaries to the periodic reports submitted by the Netherlands, so called shadow reports. The Equal Treatment Commission has also given its comments about periodic state reports.
32 Of the two NGOs most involved in the process of state reporting under ICERD, NJCM focuses on the full spectrum of human rights, irrespective of their source. Art. 1 concentrates on discrimination. Note that its predecessor, LBR, dealt with racial discrimination alone.
33 NJCM, for example, primarily consists of volunteers, who do their NGOs work in their free time, often besides full time jobs. In addition, most of them are academics, civil servants, lawyers and judges who are not accustomed to lobbying.
34 It is important to mention that states are responsible for the nomination and election of expert members and for the allocation of sufficient financial resources on the basis of Article 8 ICERD. In that sense, states themselves directly have influence on the functioning of CERD.
35 This subsection is a purely personal account of the dialogue between CERD and the Dutch delegation about the combined seventeenth and eighteenth report on 23 and 24 February 2010, Geneva. See also the summary records of the 1985th and 1986th meeting, ICERD/C/SR.1985, 3 March 2010 and ICERD/C/SR.1986, 8 March 2010.
36 See ICERD/C/SR.1985, para. 21. Interestingly, this paragraph is only a very small reproduction of the statement Mr Amir delivered during the dialogue.
37 Amir for example stated that he would like to see culture dominating politics and politics becoming more multicultural. Prosper made clear that he personally agreed with the government's integration policy. Diaconu spoke about his opinion that he expressed during the dialogue, but also in writing about the importance of respecting the principle of equality.
38 Amir spoke about the Netherlands as the maritime power of yesterday. He also referred to the fight of the Helvetians against Caesar and quoted Caesar in this regard. Avtonomov also mentioned the historical role of the Netherlands conquering the sea and emphasised the close ties that exist between Russia and the Netherlands. Ewomsan elaborated upon the fact that the Dutch are well known for trade and that their products are of better quality. Prosper mentioned that he visited the Netherlands and that this visit was reasonably pleasurable and that he had never had any problems.
39 One could even argue that the legal basis of some COs is not only unclear but also questionable from the perspective of ICERD. See for example the recommendation that the state party effectively implement its stated policy of using detention as a measure of last resort or the request to ensure that the asylum procedures are in full conformity with international standards. ICERD/C/NLD/CO/17–18, 25 March 2010, para. 11. ICERD/C/64/CO/7, 10 May 2004, para. 14.
40 ICERD/C/NLD/CO/17–18, 25 March 2010, para. 5.
41 Summary record of the 1985th meeting, ICERD/C/SR.1985, 3 March 2010, para. 3. Furthermore, the government considered that the improvement of the disadvantaged position of women belonging to ethnic minorities is ‘their own responsibility to an important extent’. It also held that the focus of emancipation policy must shift from legislation to encouraging initiatives by women and girls themselves. Fourth periodic report of states parties, CEDAW/C/NLD/4, 10 February 2005, 23.
42 Parliamentary Papers II 2009/10, 32123 V, nr. 90, 44. This also means that the government is not very willing to support affirmative action and positive measures. The cabinet Rutte I (2010–2012) even terminated the diversity and preferential treatment policy on the basis of gender and ethnicity althogether.
43 ICERD/C/NLD/CO/17-18, 25 March 2010, para. 6 and 12. CERD's position might result from its focus on equal outcome or obligations of result as the main aim of ICERD instead of equal treatment and obligation of means (Felice, Citation2002, p. 212; Meron, Citation1985, pp. 286–287).
44 Timishev vs. Russia, 55762/00 and 55974/00, 13 March 2006 and D. H. and others vs. the Czech Republic, 57325/00, 13 November 2007.
45 From the point of view of CERD this is understandable, since the competence of CERD is limited exclusively to ICERD. CERD furthermore regards the prohibition of racial discrimination as a peremptory norm of international law (jus cogens in the sense of Article 53 VCLT). Report of CERD to the General Assembly, A/57/18, 1 November 2002, 107. Thornberry noted that the exceptions to the definition of discrimination are limited under the ICERD. The only limitation clause in Article 1 deals with citizenship (Thornberry, Citation2005, pp. 249–251). Meron, after pointing to the far-reaching and burdensome obligations under the ICERD, noted that: ‘the Convention does not indicate that states can invoke a range of considerations to justify failure to take immediate steps towards implementing the equal achievement goal and can balance that goal with other desired community goals’ (Meron, Citation1985, pp. 289–290 and pp. 298–301). Although CERD has started to adopt more and more a justified limitation approach in its General Comments, this seems not yet visible in its country examination and the resultant COs.
46 Especially with respect to article 14 ECHR and article 1 Protocol 12. This dominance is because the standards in the ECHR are clear and well developed and/or more specific than the ICERD of 1965 given the extensive body of jurisprudence.
47 See the EU Directive 2000/43/EC and FD 2008/913/JHA.
48 Indeed, in response to a recommendation of the European Commissioner of Human Rights, Hammarberg, that mirrors recommendations made by CERD, to ensure that tests, fees and age requirements for family reunification and formation are not a disproportionate obstacle, the government stated that the requirements are in conformity with the EU Directive on family reunification.
49 In this context he mentioned two cases of the ECtHR against the Netherlands. Van Doorson vs. the Netherlands and Van Mechelen. Concluding observations of the Human Rights Committee, CCPR/CO/72/NET, 27 August 2001, para. 12.
50 Summary record, CEDAW/C/SR.512, 6 July 2001, para. 47. CEDAW COs 2001, A/56/38(SUPP), para. 214.
51 For example, the government made clear that it was not willing to definitively give up the Antillean Reference Index (‘Verwijsindex Antillianen’) based on the third report of ECRI. The government argued that the ‘opinion’ of ECRI that the index was not consistent with the ban on racial discrimination is not supported by a court judgement. The ministers also made clear that they wanted to uphold the appeal against the judgement, because they wanted to have a (final) judgement of the Council of State.
52 Government officials noted that a state could expect to be given a rap over the knuckles by these courts almost on a daily basis. This has an effect on parliamentary scrutiny as parliament is often right on the ball and frequently summons the minister to the weekly question time in parliament concerning those judgements. In addition, judgements of the ECJ and ECtHR are applied by domestic courts who feel obliged to follow legal precedents.