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How does the Netherlands deal with international criticism with respect to its human rights record? Do Dutch decision and policy makers take such critique seriously and do they (immediately) act upon it? Or do they dismiss it and simply... more
How does the Netherlands deal with international criticism with respect to its human rights record? Do Dutch decision and policy makers take such critique seriously and do they (immediately) act upon it? Or do they dismiss it and simply put it in a big pile of paper? This paper will reflect upon these questions from the perspective of "denialism". Denialism is understood as the existence of certain social, economic, cultural or political structures that provide for denialist defense mechanisms which makes the true nature of human rights problems is not fully or only partly acknowledged and appropriate action remains absent. This paper shows that the initial reaction of Dutch policy makers to international criticism is often defensive and sometimes borders on (complete) denial. Such an initial denialist attitude can be overcome and change can be realised when the policy issue and (international) recommendations are taken up and lobbied on by domestic actors. This paper will...
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In this Chapter it will be argued that the COs for the Netherlands have hardly had any impact and that they are ineffective in terms of securing compliance. Section 2 will outline the impact at the domestic level and the attention that... more
In this Chapter it will be argued that the COs for the Netherlands have hardly had any impact and that they are ineffective in terms of securing compliance. Section 2 will outline the impact at the domestic level and the attention that has been paid by domestic actors, such as Parliament, the media and courts, next to discussing the visibility of the Women’s Convention. The other sections will illustrate this conclusion by highlighting several important factors and reasons for the scarce attention paid at the domestic level and the fact that COs hardly ever lead to policy changes that are directly the result of CEDAW’s recommendations. That is to say, section 3 focuses on the State level and the attitude of the Government (officials) towards the process of State reporting, whereas section 4 examines the factors related to CEDAW. Section 5 concentrates on the divergence of views between CEDAW and the Dutch Government about the nature of the obligations under the Women’s Convention.
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This article examines the impact of and compliance with recommendations of the Committee on the Elimination of Discrimination Against Women in the Netherlands. It argues that various factors, including the involvement of domestic actors... more
This article examines the impact of and compliance with recommendations of the Committee on the Elimination of Discrimination Against Women in the Netherlands. It argues that various factors, including the involvement of domestic actors such as Parliament and NGOs as well as media coverage, determine the effectiveness of non-judicial mechanisms. Also essential for compliance is the receptiveness and attitudes of domestic actors and government officials towards those mechanisms. These and other factors discussed in the article are more important for human rights implementation and compliance than the creation and existence of non-judicial mechanisms per se.
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De implementatie van het Internationaal Verdrag inzake Burgerrechten en Politieke Rechten wordt gemonitord door het VN-Mensenrechtencomite door middel van het proces van statenrapportage. Dit artikel onderzoekt de effectiviteit van dit... more
De implementatie van het Internationaal Verdrag inzake Burgerrechten en Politieke Rechten wordt gemonitord door het VN-Mensenrechtencomite door middel van het proces van statenrapportage. Dit artikel onderzoekt de effectiviteit van dit proces in Nederland door na te gaan in hoeverre de regering maatregelen heeft genomen of beleid of wetgeving heeft gewijzigd naar aanleiding van de aanbevelingen van het Comite, de Concluding Observations (COs). Het artikel laat zien dat de effectiviteit van COs beperkt lijkt en biedt vervolgens een drietal verklaringen hiervoor.The implementation of the International Covenant on Civil and Political Rights (ICCPR) is monitored by the UN Human Rights Committee on the basis of a process of state reporting. This article examines the effectiveness of this process in the Netherlands by assessing whether the government has taken measures or whether it has changed its policy or legislation as a result of the recommendations of the Committee, the Concluding O...
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In deze bijdrage zal dit toneelstuk worden besproken aan de hand van de vier akten waarin het is opgevoerd. Allereerst zal in worden gegaan op de aanloop gedurende welke het EP – zonder al te veel bijval – alles op haren en snaren zette... more
In deze bijdrage zal dit toneelstuk worden besproken aan de hand van de vier akten waarin het is opgevoerd. Allereerst zal in worden gegaan op de aanloop gedurende welke het EP – zonder al te veel bijval – alles op haren en snaren zette om een grondrechtencatalogus aangenomen te krijgen. In de tweede en meest uitgebreide akte staat de Eerste Conventie (1999-2000) centraal die de tekst van het Handvest uitonderhandelde. De derde akte voert de Tweede Conventie (2002-2003) op die uiteindelijk uitmondde in de Europese Grondwet waarin het Handvest integraal was opgenomen. In de slotakte worden nog eenmaal de hoofdrolspelers naar voren gehaald om voor de laat¬ste keer hun ‘oudje liedje’ te zingen. Het stuk eindigt met een ‘happy end’, ondanks enkele strubbelingen rondom het Verdrag van Lissabon (2007): een juridisch bindende status van het Handvest op grond van artikel 6, eerste lid, VEU.
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This chapter will particularly focus on the reporting process under the UN Convention on the Rights of the Child (CRC) in the Netherlands in order to illustrate that the Dutch government has sometimes introduced laws and policies to give... more
This chapter will particularly focus on the reporting process under the UN Convention on the Rights of the Child (CRC) in the Netherlands in order to illustrate that the Dutch government has sometimes introduced laws and policies to give effect to the recommendations of human rights treaty bodies. The second section will examine two potential theoretical explanations for the homecoming and implementation of Concluding Observations (COs). The third section will examine the implementation of the COs of the six treaty bodies and will provide four examples of COs of the CRC Committee that have been implemented. The fourth section will consequently explain the different position of the COs of the CRC Committee on the basis of these two theoretical hypotheses.
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The UN human rights treaty body system will again be under scrutiny for reform in 2020, after more than a decade of fruitless attempts to strengthen it. This column explores some proposals for how the treaty bodies and the process of... more
The UN human rights treaty body system will again be under scrutiny for reform in 2020, after more than a decade of fruitless attempts to strengthen it. This column explores some proposals for how the treaty bodies and the process of State reporting can become more effective. The central idea is that treaty bodies need to be more selective and avoid duplication to stop the current negative vicious circle and evaluation fatigue. To make the dialogue more constructive, the number of issues discussed should be limited to a handful and treaty bodies should consider smaller review panels and face to face seating.
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The majority of requests for a preliminary ruling from the EU Court of Justice comes from lower national courts. This is surprising because such courts are, contrary to the highest national courts, not obliged to refer on the basis of... more
The majority of requests for a preliminary ruling from the EU Court of Justice comes from lower national courts. This is surprising because such courts are, contrary to the highest national courts, not obliged to refer on the basis of Article 267 TFEU. This article examines why Dutch and Irish lower courts have decided to refer or not in the absence of such a legal obligation. It does so on the basis of an analysis of court decisions complemented with 45 interviews with judges and legal secretaries. The article shows that there is a wide variety of reasons (not) to refer, including pragmatic and practical considerations. Politico-strategic reasons play a smaller role than one would expect on the basis of the literature to date. The most important factor affecting the courts’ willingness to refer is the way in which lower court judges see their role in relation to the highest court(s). This factor also explains the difference between Ireland and the Netherlands. While most Irish refe...
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This article analyses the impact and effectiveness of the most important international monitoring mechanism for New Zealand's international human rights obligations, which is the process of State reporting under United Nations human... more
This article analyses the impact and effectiveness of the most important international monitoring mechanism for New Zealand's international human rights obligations, which is the process of State reporting under United Nations human rights treaties by committees of experts. This article concludes that the organisation of this process in New Zealand has improved since the mid-2000s and that domestic actors, such as the New Zealand Human Rights Commission and non-governmental organisations, have become more involved. There is, however, no structural follow-up to the recommendations of the supervisory United Nations committees, and as a result they often remain largely ineffective. This article will explain why the reporting process under the United Nations Convention on the Rights of the Child is considerably more effective.
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The CJEU has no jurisdiction to rule in purely internal situations, save for three exceptions. As easy as this may sound, the CJEU's case law is not entirely consistent and created uncertainty for national courts. This article... more
The CJEU has no jurisdiction to rule in purely internal situations, save for three exceptions. As easy as this may sound, the CJEU's case law is not entirely consistent and created uncertainty for national courts. This article critically examines how the CJEU has dealt with purely internal situations. It shows that the CJEU should be stricter in defending its gates. Instead of turning the three exceptions into the rule, the CJEU should treat the three exceptions as they were originally envisaged: Exceptions. The recent Grand Chamber in Ullens de Schooten is a step in the right direction. A stricter approach makes it necessary that the CJEU looks a bit more over the national judge's shoulder, which changes the cooperative dynamic by putting the CJEU into a more vertical position vis-à-vis national courts. National courts can, however, escape this more conflictual setup by providing more detailed information as to the fulfillment of one of the three exceptions.
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The actual domestic impact of the reporting process under UN human rights treaties on the ground has hardly been studied. This article attempts to fill this gap by examining the effectiveness of the recommendations of the UN human rights... more
The actual domestic impact of the reporting process under UN human rights treaties on the ground has hardly been studied. This article attempts to fill this gap by examining the effectiveness of the recommendations of the UN human rights treaty bodies in the Netherlands, New Zealand and Finland. The aim of this article is to gather insights in the factors that contribute to the effectiveness of the recommendations by focusing on the differences between the six main UN human rights treaties and treaty bodies and variations among the three countries. While factors related to the defective design and limited legitimacy of the treaty body system inhibit the effectiveness of the recommendations, several domestic factors have at times positively affected the recommendations' effectiveness, particularly the mobilisation of domestic actors.
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Finland is generally regarded as a country especially inducive to the impact and effectiveness of international human rights law. This article examines whether this is also the case for the recommendations of UN human rights treaty bodies... more
Finland is generally regarded as a country especially inducive to the impact and effectiveness of international human rights law. This article examines whether this is also the case for the recommendations of UN human rights treaty bodies issued in the context of the process of state reporting. The objective is to elucidate the factors that contribute to the (in)effectiveness of these recommendations by contrasting the Finnish experience with that of the Netherlands and New Zealand. In this way, the article proposes several measures that could serve as an inspiration for Nordic and other countries, in addition to potentially strengthening the impact and effectiveness of the reporting process and the recommendations at the national level.
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This chapter explores the possibility of applying the proportionality principle, which is currently used by the ECtHR in its jurisprudence, in investor-state arbitration and, particularly, in expropriation-related claims. It argues that... more
This chapter explores the possibility of applying the proportionality principle, which is currently used by the ECtHR in its jurisprudence, in investor-state arbitration and, particularly, in expropriation-related claims. It argues that when States' obligations flowing from international investment treaties and human rights law come into tension, the application of the ‘proportionality test’ in the course of investor-state arbitration concerning expropriation may represent one of the routes through which a balancing of human rights protection imperatives and investor interests can take place. The complexity of this interplay relates to the fact that interests on both sides of the balance have human rights aspects. By virtue of ‘double proportionality’ testing, investor-state arbitration practice may be merging investment and human rights law proportionality standards -- a development that is to be encouraged.
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Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between... more
Historical background of the inclusion of social rights in the Charter of Fundamental Rights – Distinction between rights and principles – Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles – Implications of this distinction for the possibilities of judicial review – Reluctance of the ECJ to explicitly deal with the distinction untilGlatzel, as illustrated by its earlier judgments inDominguezandAMS.
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These concluding observations integrate the conclusions of the reports of the research project about monitoring and evaluation mechanisms in the first and third pillar of the EU and the Council of Europe. The main research question of the... more
These concluding observations integrate the conclusions of the reports of the research project about monitoring and evaluation mechanisms in the first and third pillar of the EU and the Council of Europe. The main research question of the research project was to elaborate on the factors that stand in the way of (better) compliance with findings of monitoring and evaluation mechanisms and how to improve actual compliance with evaluation and monitoring mechanisms. 3 In these concluding observations, both reports will be approached and analysed with the help and from the perspective of the following questions and themes that were also used to structure the thematic impression of the conference: what is evaluated (the scope), by whom (actors and institutions involved), how (methodology) and what are the consequences attached to the findings (compliance and follow-up)? Those concluding observations will, thus, try to draw lessons learned from the functioning of evaluation and monitoring in the first and third pillar of the EU and the Council of Europe and propose ideas and pose preconditions for the way in which actual compliance with evaluation and monitoring mechanisms could be improved. This will ultimately help to answer the question how an additional evaluation mechanism could maintain and improve mutual trust amongst
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Now that the Darfur ceasefire was signed, Darfur entered the agenda of the Security Council and humanitarian aid was quickly expanding. The following months were dedicated to maximising the pressure on the Sudanese government to reign in... more
Now that the Darfur ceasefire was signed, Darfur entered the agenda of the Security Council and humanitarian aid was quickly expanding. The following months were dedicated to maximising the pressure on the Sudanese government to reign in the Janjaweed and start political talks with the rebel groups. This chapter looks into the international attempts to achieve these goals. The first resolution in which Darfur was mentioned on 11 June 2004, after the Presidential Statement. Annan made several decisions to give the UN Secretariat a bigger political role in Sudan, and Darfur in particular. From the moment Darfur was discussed in the Security Council the sanctions under discussion were mainly "targeted sanctions" at individuals and "economic sanctions", in particular an oil-boycott. UN Resolution 1556 was adopted on 30 July, and dealt with Darfur. There was a peak in international activity and decision-making in the period between June and September 2004.Keywords: Annan; Darfur; economic sanctions; Security Council; Sudan; UN resolution
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This chapter focuses primarily on the actions of bystanders, and in particular on the way they attempted to respond to the crisis in Darfur, while taking into account their wider interest in Sudan and relations with other states and... more
This chapter focuses primarily on the actions of bystanders, and in particular on the way they attempted to respond to the crisis in Darfur, while taking into account their wider interest in Sudan and relations with other states and organisations. In spite of the growing concern for Darfur and the recurrent articles seemingly regurgitating the same information, Janjaweed attacks intensified at the beginning of March 2004. An agreement was signed on 8 April. The ceasefire agreement foresaw a joint monitoring "ceasefire commission" and future talks on political issues. The N'Djamena ceasefire agreement established a ceasefire monitoring commission, consisting of representatives of all parties of the agreements. The US and European countries planned to adopt a resolution on Sudan during the 60th session of the UN Commission of Human Rights in April, with a special reference to Darfur. The pressure to discuss the situation in Darfur in the Security Council increased.Keywords: Darfur; Janjaweed attacks; N'Djamena ceasefire agreement; Security Council; Sudan; UN Commission of Human Rights
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The months following Resolution 1564 were characterised by the execution of the limited decisions that the international actors had taken. Since the Commission of Inquiry started its investigation in October, new decision-making was... more
The months following Resolution 1564 were characterised by the execution of the limited decisions that the international actors had taken. Since the Commission of Inquiry started its investigation in October, new decision-making was hampered for four months. The security situation in Darfur worsened. In contrast, humanitarian agencies were much better prepared to deploy their staff and material when the ceasefire in April was agreed and access for humanitarian agencies was granted. The Sudanese government tried to stop, prohibit or obstruct humanitarian agencies and their staff and material from reaching Darfur. A new round of talks started by the end of October in Abuja. This chapter shows that the Security Council and other actors like the EU were unable and unwilling to adopt more stringent measures in the fall of 2004, such as sanctions or a no-fly zone. It also shows the inconsistencies in the policy of the US.Keywords: Abuja; Darfur; humanitarian agencies; Resolution 1564; Security Council; Sudanese government
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This chapter examines the genocides in Rwanda and Srebrenica. All three situations, which include Rwanda, Srebrenica and Darfur, took place after the end of the Cold War, which made foreign intervention somehow easier because the world... more
This chapter examines the genocides in Rwanda and Srebrenica. All three situations, which include Rwanda, Srebrenica and Darfur, took place after the end of the Cold War, which made foreign intervention somehow easier because the world was no longer divided between Eastern and Western spheres of influence. Based on theoretical aspects in the field of international relations, the chapter researches some patterns in these case studies. These are the behaviours of third actors at the state and international level of analysis. Both the international influences for a state and the domestic influences are studied in the foreign policy-making of the states. The attention on internal influences makes it possible to study the process of decision-making in both states and international organisations, such as: rational decision-making, organisational decision-making and bureaucratic politics decision-making. This focus on decision-making is required to explain the gap between the warnings and the actions.Keywords: bureaucratic politics decision-making; Cold War; Darfur; foreign policy-making; organisational decision-making; rational decision-making; Rwanda; Srebrenica
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This chapter sketches out the main measures taken by third parties to the conflict as well as the security situation in Darfur since 2005. The international actions in the rest of 2005 and the beginning of 2006 were focused on securing a... more
This chapter sketches out the main measures taken by third parties to the conflict as well as the security situation in Darfur since 2005. The international actions in the rest of 2005 and the beginning of 2006 were focused on securing a peace agreement, which was considered a prerequisite for the transition from an AU to a UN peacekeeping force. One of the major reasons behind the policy of making Advanced Mission in Sudan (AMIS) a UN mission was the donor fatigue of Western countries, who were the major financial sponsors of the AU force, coupled with concerns about AMIS limited effectiveness. In 2007, the UN and EU authorised two complementary military missions to be deployed in Sudan's neighbouring countries Chad and the Central African Republic. Hardly any progress was made in 2008 with the negotiations. The security situation in Darfur has worsened again since the end of 2010.Keywords: AU force; Central African Republic; Darfur; Darfur peace agreement; Sudan
This chapter presents the theories used to explain the behaviour of the bystanders at the state and international levels. This includes the theories of pluralism/liberalism which focus on domestic influences on the foreign policy-making.... more
This chapter presents the theories used to explain the behaviour of the bystanders at the state and international levels. This includes the theories of pluralism/liberalism which focus on domestic influences on the foreign policy-making. In addition, the decision-making models developed by Allison in relation to the 1961 Cuba crisis will be relied upon as well as psychological and cognitive mechanisms. The dominant theory of International Relations with respect to peace and security is (neo)realism. The chapter studies the role and behaviour of groups and bureaucracies as well as the impact of domestic sources on foreign policy-making. It includes cognitive practices such as cognitive dissonance and wishful thinking, as well as heuristic devices such as analogies and stereotypes. The chapter presents three decision-making models: Rational Policy Model, Organisational Process Model and Bureaucratic Politics Model, as developed by Allison with respect to the Cuban missile crisis.Keywords: bureaucratic politics model; foreign policy-making; liberalist InternationalRelations theories; organisational process model; rational policy model; theories of pluralism/liberalism
It is generally accepted that the emergence of the Darfur Liberation Front (DLF) in claiming responsibility for an attack on a military garrison in Golo in the Jebel Marrah region marked the de Facto beginning of the rebellion. The first... more
It is generally accepted that the emergence of the Darfur Liberation Front (DLF) in claiming responsibility for an attack on a military garrison in Golo in the Jebel Marrah region marked the de Facto beginning of the rebellion. The first warnings were already voiced as early as February 2003. The first (public) warnings were primarily issued by NGOs and humanitarian agencies. The account before suggests that many international actors knew about the developments in Darfur at a relatively early stage. This chapter discusses the following questions: what exactly did they know? Where they able to fully capture the scale of the violence on the ground? The response of the international community in the first year after the outbreak of the rebellion is discussed in the chapter. The first factor that prevented an early response from the international community was the North-South negotiations.Keywords: Darfur Liberation Front (DLF); humanitarian agencies; Kapila's warnings; NGOs; North-South negotiations
This introductory chapter presents an overview of this book, which is a part of a larger research project on the failure to prevent genocide, ethnic cleansing and gross human rights violations in Rwanda (1994), Srebrenica (1995) and... more
This introductory chapter presents an overview of this book, which is a part of a larger research project on the failure to prevent genocide, ethnic cleansing and gross human rights violations in Rwanda (1994), Srebrenica (1995) and Darfur (2003). The book compares the qualitative evidence collected for these three conflicts and makes some broader generalisations. It sets out the theoretical framework which is based on theories of International Relations and foreign policy making. The book also applies and illustrates concisely the theoretical framework for the genocides in Rwanda and Srebrenica with a particular focus on explaining the reasons for the failure to prevent the genocide. The book further introduces Darfur, the land and its people, and gives a brief historical context to the conflict. It discusses thoroughly how and why international decision makers responded to the situation in Darfur. The book ends with the adoption of Security Council's Resolution 1593.Keywords: Darfur; foreign policy making; human rights violations; Rwanda; Security Council's Resolution 1593; Srebrenica
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The book looks at the role of states and international organisations in their attempts to prevent the genocide in Darfur (2003-2005); from early warning to limited action in the field of humanitarian assistance, mediation, sanctions and... more
The book looks at the role of states and international organisations in their attempts to prevent the genocide in Darfur (2003-2005); from early warning to limited action in the field of humanitarian assistance, mediation, sanctions and peace-keeping. The book uses several theories to explain how decisionmaking led to the (absence) of international responses.
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This paper examines the implementation of recommendations (COs) of the HRC (HRC) monitoring the International Covenant on Civil and Political Rights (ICCPR) in the Netherlands. The main conclusion of this paper is that -the legally... more
This paper examines the implementation of recommendations (COs) of the HRC (HRC) monitoring the International Covenant on Civil and Political Rights (ICCPR) in the Netherlands. The main conclusion of this paper is that -the legally non-binding- COs for the Netherlands have proved to be ineffective in terms of securing compliance. That is to say, COs hardly ever lead to policy changes that are the result of those recommendations. This outcome stands in sharp contrast with the considerable influence of the ICCPR at the domestic level, especially in terms of governmental and Parliamentary attention and its role in the legislative process and legal practice. This paper addresses the factors that influence states to comply with the COs with the objective of explaining the causal mechanisms leading to compliance. The paper especially focuses on the instances during which the Government has tried to justify its noncompliance with COs on the basis of the ECHR and especially the jurisprudence of the ECtHR. This paper attributes this line of defense to the dominance of the ECHR in the Dutch legal order, as a result of which other (UN) human rights treaties are often overlooked.
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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... more
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.