CHAPTER 4 THE NETHERLANDS AND SOCIAL AND ECONOMIC … · of the ICCPR than in the context of the...

1 It should be noted that cultural rights are sometimes bracketed together with social and economic rights,but this seems to be the consequence of the fact that these rights happen to be incorporated in the sameUN Covenant rather than because they should be seen as a similar type of rights. In practice, culturalrights questions are more often dealt with in relation to the non-discrimination or minorities’ provisionof the ICCPR than in the context of the ICESCR. (See: Steiner and Alston, 2000, p. 248) In the contextof the Council of Europe, there is no specific link between economic and social rights and culturalrights either. For these reasons, cultural rights are not dealt with in this chapter. They will, however,be shortly referred to in chapter 8.

2 The Helsinki Final Act of 1975 includes a reference to economic and social rights, but it is of a verygeneral character only. It reads: ‘They [the participating states] will promote and encourage theeffective exercise of civil, political, economic, social, cultural and other rights and freedoms all ofwhich derive from the inherent dignity of the human person and are essential for his free and fulldevelopment.’ The Concluding Document of Madrid of 1983 mentions the right of workers to freelyestablish and join trade unions in particular, and the Concluding Document of Vienna of 1989,emphasizes the need to continue efforts with a view to progressively achieving the full realization ofeconomic and social rights, but in principle these phrases repeat existing norms; they do not create newstandards, nor do they refine existing ones. In the Concluding Document of the Vienna Follow-UpMeeting of 1989, the document of the Copenhagen meeting of the Conference of the human dimensionof the CSCE of 1990, the Charter of Paris of 1990, and later documents that include human rightsprinciples, hardly any reference is made to social and economic rights. The same is true for the reports

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CHAPTER 4THE NETHERLANDS AND

SOCIAL AND ECONOMIC RIGHTS

In chapter 2 and 3, it was demonstrated that the Netherlands gave considerableattention to the fight against torture. In this regard, it attached particular importanceto the development of effective international supervisory mechanisms. In the followingtwo chapters, the extent to which this was also true for its policies in the field of socialand economic rights will be investigated.1 What were the Netherlands’ basic points ofdeparture in negotiations on social and economic rights instruments? Furthermore,what were the considerations that determined its policies? Were human rights con-siderations the only determining factor, or were there also other policy interestsinvolved? And to what extent did nongovernmental organisations or different bureau-cratic actors influence its policies?

In this chapter, a first attempt to answer these questions is made. Its structure issimilar to that of chapter 2: the first section provides some historical background, thenext gives an overview of the Netherlands’ general policy principles, while thefollowing sections deal with a number of case studies in which these principles wereto be applied. Universal instruments are studied first, and regional initiatives are dealtwith afterwards. In respect to the latter, the focus is on the Council of Europe, becausethe CSCE and its successor OSCE have not developed any norms or procedures ofimportance in the field of social and economic rights.2

Hilde Reiding, 'The Netherlands and the Development of International Human Rights Instruments'

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of OSCE implementation meetings on human dimension issues, as held, for instance, in Warsaw from27 September to 15 October 1993, and from 2 to 19 October 1995. This demonstrates that these rightshave never been a priority issue in this organisation. (The documents referred to can all be found at:http://www.osce.org/documents/chronological.php, accessed 8 September 2006).

3 Lauren, 2003, p. 54-55; Craven, 1995, p. 8.4 Lauren, 2003, p. 54-55; Van Genugten, 1988, p. 115-119; Arambulo, 1999, p. 10-11.5 Lauren, 2003, p. 54-55 and 79-80.6 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 94; Kuitenbrouwer, 1996,

p. 158; Boonstra, 1996, p. 220-221; Heringa, 1989, p. 9.7 Lauren, 2003, p. 74; Betten, 1993, p. 4; Valticos and Von Potobsky, 1995, p. 18.8 Lauren, 2003, p. 94-95; Van Genugten, 1988, p. 11-12; Steiner and Alston, 2000, p. 242; Van Hoof,

1996, p. 66; Arambulo, 1999, p. 11. It should be noted that the establishment of the ILO did not onlystem from protests against bad labour conditions by workers and trade unions, or Western governments’fear that the precedent set by the Russian Revolution of 1917 might be followed in their countries aswell. Employers also had an interest in international regulations to avoid distortion of competition ininternational trade. See: Betten, 1993, p. 1-11; Valticos and Von Protobsky, 1995, p. 17-18.

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4.1 TOWARDS INTERNATIONAL RECOGNITION OF SOCIAL AND ECONOMIC RIGHTS

Whereas the historical development of civil and political rights is usually associatedwith the French and the American Revolution, the Industrial Revolution of the lateeighteenth and nineteenth century, can be seen as the starting point of a developmentthat would ultimately lead to an international recognition of social and economicrights.3 A negative consequence of the industrialisation was the emergence of a largeclass of exploited workers. The misery and egregious working conditions of the have-nots of the urban proletariat provoked criticism, and also new human rights questions.Civil and political rights, and ideals of freedom and equality did not mean much forpoor workers if they were at the mercy of their employers, and had no food, no home,no clothing, no medical care and no education.4

The socialist ideals of the nineteenth century first gave rise to domestic regulationsconcerning the worst forms of exploitation, like the employment of young children orextreme working hours for teenagers, but gradually, legislation was also developed inrelation to other labour issues and further social questions, such as sanitation, poorrelief and education.5 In the Netherlands, the so-called Van Houten Act on child labourof 1874 is generally considered as the starting point for the advancing process of sociallegislation, though references to what would now be considered social rights, such asrelief for the indigent and care for orphans, were already incorporated in its constitu-tion as early as 1798.6 At the international level, two treaties on labour conditions wereadopted in 1906; they prohibited night work for women in industrial employment, andthe use of phosphorus in the manufacture of matches, respectively.7 With the creationof the International Labour Organisation (ILO) in 1919, labour issues had definitelyreached the international stage, and although the questions that it dealt with were atthat time not yet framed as human rights matters, this organisation’s conventions areusually seen as crucial predecessors to modern instruments for economic and socialrights protection.8


The Netherlands and social and economic rights

9 Steiner and Alston, 2000, p. 243; Lauren, 2003, p. 137; Baehr, 2001, p. 32.10 Morsink, 1999, p. 157 and 192; Lauren, 2003, p. 213. 11 See articles 22-26 UDHR.12 Steiner and Alston, 2000, p. 237.13 See, for example: Minsterie van Buitenlandse Zaken, 1979b, p. 308; Ministerie van Buitenlandse

Zaken, 1986, p. 366; Appendices to the reports of the Second Chamber, 1982-1983, 17 600, chapterV, no. 2, p. 51; Appendices to the reports of the Second Chamber, 1997-1998, 25 600, chapter V, no. 2,p. 42.

14 See: http://www.ohchr.org/english/law/ccpr.htm and http://www.ohchr.org/english/law/cescr.htm,accessed 11 September 2006.

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After the Second World War, social and economic rights were incorporated in theUniversal Declaration of Human Rights. In his famous ‘Four Freedoms’ speech of1941, the President of the United States, Franklin Roosevelt, also made reference toa freedom from want’.9 Nonetheless, in the drafting process of the Universal Declara-tion, it was the socialist governments of Latin American countries in particular thatadvocated the inclusion of provisions on social and economic rights. They receivedsupport from communist countries, but Western states proved more reluctant toagree.10 The text of the Declaration that was eventually adopted in 1948, laid downseveral social and economic rights, such as the right to social security, the right towork, the right to an adequate standard of living, and the right to education.11 Theirinclusion in the Universal Declaration has given these rights the status of human rights,and formally all states agree with the principle that all categories of rights – hence,civil and political rights on the one hand, and social, economic and cultural rights onthe other hand – are indivisible, interdependent and interrelated. However, in practice,opinions on the proper status of economic and social rights have always been verydivided. Whereas some states – communist and developing states in particular – haveconsidered them superior to civil and political rights, other states have taken theopposite position; and some states, most notably the United States, have openly deniedthat they should actually be treated as rights at all.12

4.2 THE NETHERLANDS’ VIEWS ON SOCIAL AND ECONOMIC RIGHTS

In principle, the government of the Netherlands holds the view that the categories ofeconomic and social rights and civil and political rights are indivisible, interdependent,and of equal importance. Official statements by the Dutch government constantlyunderline these principles as basic points of departure.13 The fact that the Netherlandssigned and ratified the International Covenant on Economic, Social and CulturalRights (ICESCR) and the International Covenant on Civil and Political Rights(ICCPR) on the very same date indicates that this was more than just a statement.14

Since 1983, the classic and social rights have also been brought together in one chapter


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15 Van Genugten, 1988, p. 169-172. See also: Heringa, 1989, p. 22-29. In its first chapter, which dealswith basic rights, the articles 19 to 23 contain provisions on such matters as employment, socialsecurity, education, public health and housing. According to Van Hoof, the practical meaning of thesearticles has, however, been very limited, because they do not seem to have greatly influenced thegovernment’s policy considerations. See: Van Hoof, 1998, p. 11-14.

16 For a critical analysis of the Dutch performance, see, for instance: Baehr, 2006.17 Jaspers and Betten, 1988b, p. 131; Gomien, Harris, and Zwaak, 1996, p. 410. For more information on

the delay in the Dutch ratification process, see: Jaspers and Betten, 1988b.18 Ministry of Foreign Affairs, 1979, p. 102-104; Appendices to the reports of the Second Chamber,

1982-1983, 17 600, chapter V, no. 2, p. 51; Appendices to the reports of the Second Chamber,2000-2001, 27 742, no. 2, p. 11-12 and 35; UN Doc. E/CN.4/1998/SR.8, p. 3.

19 Baehr, Castermans-Holleman and Grünfeld, 2002, p. 6.20 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 10.21 See, for example: NJCM, 1992, p. 112; Castermans-Holleman, 1997a, p. 646; Baehr, 2006, p. 190.

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of the Dutch Constitution, thus giving expression to the indivisible character of classicand social rights.15

As compared to many other countries, the Netherlands has a relatively favourablerecord when it comes to actually protecting social and economic rights domestically.It goes without saying that its relatively prosperous economy partly accounts for this,and it should also be recognized that there are still issues for which the Netherlandscan be criticized.16 Nonetheless, in Europe, the Dutch social security system belongsto the most generous ones, and although it was only in April 1980 that the Netherlandsratified the European Social Charter, its rate of compliance with the Charter’s provi-sions has, for instance, been relatively high as compared to that of other contractingparties.17 Insofar as the international aspect was concerned, the Netherlands consideredits development policies as an attempt to realize economic and social rights elsewherein the world. Therefore, its policies were not just aimed solely at economic growth, butalso at poverty reduction and social justice.18

The above paragraphs make clear that the Netherlands recognized the relevance ofsocial and economic rights. However, this does not necessarily mean that its policypractice was always in full conformity with the principle of indivisibility, interdepen-dence, and equal importance of all categories of rights. First of all, it should be notedthat ‘the definition of what counts as human rights depends on the circumstances’, foronly persons that have left their country for violations of certain civil and politicalrights can claim refugee status, while those trying to escape a situation in which theireconomic and social rights are not fulfilled, cannot.19 What is of particular importancein the context of this study is that an emphasis on civil an political rights also becomesclear from the Dutch policy papers on human rights and foreign policy. In the 1979policy paper, for instance, it is indicated that the government established a direct linkbetween human rights and democracy, and for this reason gave an essential place topolitical liberties in the totality of human rights.20 A similar order of priorities can bederived from the follow-up memoranda and the policy paper of 2001, which havetherefore been criticized for paying only scant attention to social and economicrights.21 According to a former official of the Humanitarian and Legal Affairs Section



22 Interview with J.A. Walkate, 21 April 2004.23 Baehr, Castermans-Holleman and Grünfeld, 2002, p. 219-220. During the Cold War, the Netherlands

also concentrated on civil and political rights violations in the communist bloc. According to Baudet,this was done for tactical reasons; as communist countries claimed to have realized economic and socialrights, they could not serve the Dutch main policy purpose of regime change in these countries. Thisline of reasoning can be criticized, because an inability to meet basic social and economic needsappeared to be one of the main causes of the breakdown of the communist system, but Baudet’sobservation that civil and political rights were given most attention is correct. See: Baudet, 2001a,p. 257.

24 Roth, 2004, p. 68-69. Note that the article by Kenneth Roth was followed by a number of articles byothers who did not agree with this analysis. For a comment on the issue of clarity about the violator orthe remedy, see, for instance: Rubenstein, 2004, p. 861-864.

25 Baehr, Castermans-Holleman and Grünfeld, 2002, p. 102 and 118-119. Another comparable examplewas that of the deliberate destruction of houses of Tibetan people in China, about which the Nether-lands also remained silent. See: Baehr, Castermans-Holleman and Grünfeld, 2002, p. 150-151 and169-170.

26 Vandenhole, 2003, p. 430.

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of the Ministry of Foreign Affairs issues like torture, disappearances and the right tolife were indeed in practice considered to be the most serious violations, to whichpriority attention needed to be given.22

In their overview on Dutch human rights policy, Baehr, Castermans-Holleman andGrünfeld concluded that insofar as reactions to violations in other states were con-cerned, the emphasis was undeniably on civil and political rights, and foreign govern-ments were only very rarely criticized because of violations of economic and socialrights.23 Perhaps the government was struggling with similar difficulties as the execu-tive director of Human Rights Watch, Kenneth Roth. Contrary to what is usually thecase in the realm of civil and political rights, the observation that a social or economicright has been violated often does not necessarily lead to clarity about the violator orthe remedy. Who should, for example, be held accountable for an unsatisfactory healthsystem or insufficient food supplies: the government of the state in question or the‘international community’; and what would be the appropriate remedy?24 It is under-standable that this makes it extremely difficult not only for NGOs but also for agovernment to react to social and economic rights questions in other countries. On theother hand, there are economic and social rights issues for which the above consider-ations do not hold. The Turkish practice to tear down the houses of Kurds is a clearcase in point. The Netherlands could have called on Turkey to respect the people’sright to adequate housing, but it did not do so.25

Without a doubt, hesitancy to address violations of social and economic rights hasmuch to do with the uncertainty about the nature of these rights. In the legal debate,two important questions stand out in this respect: the question of their justiciability(which determines whether an individual can invoke these rights before a court), andthe question of the obligations ensuing from them.26 As to the latter question, it hasoften been said that there is a distinction between the categories of civil and politicalrights on the one hand, and social and economic rights on the other, mainly becausethe first entail negative obligations, implying only abstention on the part of the state,


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27 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 93.28 Ministerie van Buitenlandse Zaken, 1985, p. 236.29 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 96.30 Ibidem, p. 35-36.31 UN Doc. E/CN.4/2004/WG.23/2, p. 5.32 Article 93 of the Constitution of the Kingdom of the Netherlands.33 Coomans, 2003, p. 24-25. For example, in a speech in 1989 by the Dutch Minister for Social Affairs

and Employment, Jan de Koning, it was maintained in reaction to a scholar’s complaint that there wasno need for international social rights of a directly applicable character, because ‘non-selfexecutingprovisions of international law certainly ha[d] an important impact on national law and practice too’.See: De Koning, 1989, p. 2. In the context of the assessment of the Netherlands’ second national reportunder the ICESCR in 1998, it was once again confirmed that the Dutch government felt that its imple-

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whereas the latter require positive action. The human rights policy paper of 1979recognized that, according to the Dutch government, there was some truth in thatstatement, while at the same time, it warned against taking this distinction too abso-lutely.27 In a 1984 speech before the Third Committee of the General Assembly, theabove theory was put into perspective even more when the delegate of the Netherlandsopined that ‘[s]uch a clear-cut distinction does not reflect present-day societies wherepolitical and civil rights are being implemented in an affirmative manner, also claimingan impressive portion of the budget of national and local authorities’ and that, at thesame time, ‘sometimes social rights require “negative actions”.’28 To illustrate, aneconomic right, like the right to join and form trade unions, is primarily a right of non-interference, while a civil right, like the right to a fair trial, assumes positive action toguarantee the existence and maintainance of a system of courts.

In spite of this conviction, the Dutch government did not think that the two sets ofrights were fully similar in nature. As it explained in its policy paper of 1979, ‘[w]ithregard to implementation of course there remains an essential difference in that theclassic rights lend themselves by their nature to immediate application, granting directentitlements to the individuals concerned, whereas on the other hand the realization ofsocial rights generally takes a considerable time.’29 Or, as it was put at another placein that same memorandum, provisions such as those of the ICESCR ‘do not containdirectly enforceable obligations but are rather to be seen as policy objectives.’30 Inother words: social and economic rights were not considered justiciable. More re-cently, this point of view was repeated in an official response to a UN request tocomment on the nature of states parties’ obligations under the ICESCR.31

For the Netherlands, the question of the nature of internationally recognized socialand economic rights was of particular importance because of its monistic system.According to article 93 of the Dutch Constitution, provisions of international law thatare by their nature binding on everyone are directly applicable, and can thus beinvoked and applied in Dutch courts.32 At the time of the ratification of the ICESCR,the Netherlands’ government stated that the rights included in it did not, in principle,have the character of directly applicable provisions, and it has repeated this positionon several occasions since.33 The government’s position has not generally been



mentation was a political matter, in which the judiciary must not interfere. See: Coomans, 2003,p. 24-25.

34 Coomans, 2003, p. 22 and 24-25; Van Hoof, 1998, p. 14-19. In recent years, there are examples ofother, more indirect ways to apply the ICESCR’s provisions in Dutch courts. See: Coomans, 2003,p. 25; Coomans, 1998a, p. 5. It should be noted also that domestic courts in other countries have alsobeen reluctant to recognize the justiciability of social and economic rights. See: Craven, 1995, p. 10.

35 Jaspers and Betten, 1988b, p. 133-135.36 Wiebringhaus, 1988, p. 22-23.37 Coomans, 2003, p. 27.38 Arambulo, 1999, p. 15; Van Genugten, 1988, p. 39-40.39 Van Genugten, 1988, p. 38 and 184-189.

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challenged by the judicial branch, which in the Netherlands is to make final decisionsin questions concerning direct applicability, and in a number of matters involvingalleged violations of the ICESCR that were taken to court, the judges denied the self-executing character of the provisions concerned.34 The same holds true for the provi-sions of the European Social Charter; direct applicability has not been easily assignedto them.35 On the other hand, as the Deputy Director of Social and Economic Affairsof the Council of Europe stated in 1988, it must also be recognized that the Nether-lands was one of only few countries where there was any judicial application of theCharter at all.36 Still, as pointed out by Coomans: as long as international jurisprudenceis lacking, it is only less likely for national lawyers to apply these norms.37 The extentto which such jurisprudence can be developed is, however, very much dependent uponthe kind of international instruments states allow in the field of social and economicrights. In the following sections, the Netherlands’ attitude and views regarding thedevelopment of such instruments will be explored. Clearly, the above perceptions ofthe nature of social and economic rights are likely to have marked the Dutch effortsin this respect, but on the other hand, the Netherlands probably also had to take intoaccount its proclaimed devotion to the idea that all human rights are indivisible,interdependent, and of equal importance.

4.3 THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURALRIGHTS

Within the UN, the key instrument in the field of social and economic rights is theInternational Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.After the acceptance of the Universal Declaration of Human Rights in 1948, theoriginal intention had been to draft one legally binding convention, but it did not takelong until this point of departure became a subject of debate.38 The Soviet Union andother communist countries were in favour of one treaty, covering all categories ofrights. According to these states, the realization of civil and political rights was anillusion when economic, social and cultural rights were not guaranteed as well. Theunity of the two groups of rights should therefore not be harmed.39 Another group ofstates, in particular the United States and other Western states, opposed this view and


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40 Van Genugten, 1988, p. 39; Arambulo, 1999, p. 17.41 The drafting history of the Declaration’s economic and social rights articles can be found in: Morsink,

1999, p. 157-238. The Netherlands made a case for the freedom of education, but otherwise it did notplay a great part in the debate on these articles. It did not make any particular effort to secure theirincorporation, and it openly declared itself opposed to a provision on the right to strike and the rightto rest and leisure time. See: Morsink, 1999, p. 179-181 and 185-190; Ministerie van BuitenlandseZaken, 1949, p. 61-68 and 104-109.

42 Van Genugten, 1988, p. 39; Ministerie van Buitenlandse Zaken, 1952, p. 291-292.43 Ministerie van Buitenlandse Zaken, 1951, p. 21-22; Ministerie van Buitenlandse Zaken, 1952, p. 132.44 Ministerie van Buitenlandse Zaken, 1952, p. 292.45 Van Genugten, 1988, p. 43-44.46 Ibidem, p. 46.

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were of the opinion that two separate Covenants should be drafted, which was whathappened eventually. Their main argument was that the two categories of rights werevery different in nature, and required dissimilar means of implementation. Whereasclassic rights were considered legally enforceable and justiciable, social and economicrights were not. Their implementation would be dependent on economic and socialcircumstances and would require political interference rather than involvement on thepart of the judiciary.40

Like most Western states, the Netherlands had not demonstrated much support forthe inclusion of social and economic rights at the time of the drafting of the UniversalDeclaration.41 Now that negotiations on legally binding human rights norms hadstarted in the UN, the Netherlands clearly belonged to the group of states that resistedthe plan to have one convention comprising all categories of human rights.42 It pre-ferred to concentrate on civil and political rights only, and if economic and socialrights were to be codified anyway, they should at least be incorporated in a separatetreaty.43 Apart from the argument that the two categories of rights were of too differenta nature to be incorporated in one and the same legal text, it expressed the opinion thatthe creation of one instrument with different types of rights would eventually be at theexpense of the number of ratifications. If two Covenants were drafted, it explained, ‘allStates who deem it possible to accept the obligations of both conventions are free todo so, whereas other States may limit themselves for the time being to sign only one.In this way real progress would be possible and we may be assured that at least onecategory of important human rights will find almost universal acceptance, and belegally protected in the far greater part of the world.’44

Opinions diverged not only with respect to the question of whether there should beone or two treaties, but also on the subject of supervision. As was also pointed to inchapter 3, the Soviet Union considered international control mechanisms an unaccept-able intrusion of state sovereignty, and therefore, it was opposed to the creation ofindependent supervisory organs and individual petition procedures.45 Besides, it feltthat there should be one supervisory procedure for both Covenants, namely a reportingsystem.46 As becomes apparent from the Netherlands’ reaction to that suggestion in theThird Committee of the General Assembly in 1963, the Dutch position was quitedifferent. It argued that on the basis of the UN Charter, one could not come to any



47 Ministerie van Buitenlandse Zaken, 1964, p. 507-509, quotation: p. 509.48 Ibidem, p. 509.49 Ministerie van Buitenlandse Zaken, 1964, p. 506; Ministerie van Buitenlandse Zaken, 1967, p. 271;

Castermans-Holleman, 1992, p. 213-221; Van Genugten, 1988, p. 44-47.50 Arambulo, 1999, p. 22.51 Van Genugten, 1988, p. 44-45.52 Arambulo, 1999, p. 24-28; Craven, 1995, p. 21-22.53 Arambulo, 1999, p. 26-27; Craven, 1995, p. 21.54 Arambulo, 1999, p. 26-27; Ministerie van Buitenlandse Zaken, 1967, p. 99.55 Ministerie van Buitenlandse Zaken, 1967, p. 100.

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other conclusion than that human rights were an international matter, and that ‘sincethe establishment of the UN, it is no longer allowed to hide ourselves behind the wallsof national sovereignty.’47 In the light of this, reporting procedures were not consideredsufficient, and it was argued that ‘a uniform implementation procedure by way ofperiodic reports for both civil and political rights as well as economic, social andcultural rights, would hardly mean any progress in the field of human rights’, andwould thus not be sufficient.48 However, what it meant was not that reporting proce-dures were unsatisfactory for the supervision of all human rights, but only for civil andpolitical rights. Unlike the communist countries, it felt that it would be justified toprovide each Covenant with a monitoring system of their own, and whereas it wasdetermined to supplement the ICCPR with an individual complaints mechanism, itopposed anything similar under the ICESCR.49 In this respect it did, however, notdiffer much from the majority of states; the option of having such a procedure wasnever a serious subject of negotiation at all.50

In regard to the question of what kind of body should be made responsible forsupervision, the approach of the Netherlands was more consistent with ideas that itexpressed in relation to the ICCPR. Under the ICCPR, a body of independent experts– the Human Rights Committee – was created to monitor its implementation, and theNetherlands had been in favour of that.51 In the negotiations on its economic and socialrights counterpart, proposals to set up an independent supervisory body had also beensubmitted on a few occasions.52 The last attempt to that end was made in 1966, theyear of the Covenants’ adoption. Inspired by the example of the International Conven-tion on the Elimination of All Forms of Racial Discrimination, which had beenadopted one year before, both the Italian and the United States delegations submittedproposals to establish an independent supervisory organ also under the ICESCR.53 Themain difference between the two proposals was that the proposal of the United Statesprovided for a completely independent Committee, while the Italian merely aimed atthe establishment of an expert committee to advise ECOSOC. Accordingly, thisintergovernmental body would still have an important role to play.54

The United States proposals received hardly any support, but together with anumber of other countries, among whom were Canada and the Scandinavian countries,the Netherlands supported the suggestions Italy had tabled.55 As was explained in astatement in the Third Committee of the General Assembly, in studying and consider-


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56 Ibidem, p. 271.57 Ibidem.58 Ibidem, p. 271-272.59 Arambulo, 1999, p. 27-28; Craven, 1995, p. 21-22.60 Arambulo, 1999, p. 28-29; Craven, 1995, p. 39-40.61 Craven, 1995, p. 40-41; Arambulo, 1999, p. 29-30.

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ing the proposals, the Netherlands was guided by two criteria. The first criterium was‘that the reports submitted under the covenant receive a proper treatment’ and that‘adequate attention is paid to them’.56 The second was ‘that the study of these reportsmay lead to meaningful recommendations, so that they may become an incentive tointernational development co-operation and to national action in the economic, socialand cultural field.’57 As the Netherlands did not expect that ECOSOC would be ableto pay due attention to the reports, it was in favour of the establishment of an expertcommittee. On the other hand, it believed that full implementation of social andeconomic rights was mainly dependent on the economic situation in a given countryand the growth of international development cooperation. In this light, it believed that,being the central UN body in respect to economic, social and cultural questions, andthe main link between the UN and the specialised agencies, ECOSOC would be betterequipped to provide for the necessary follow-up than an independent supervisory body.Therefore, it supported the Italian proposal, and not that of the United States.58

Even though the reasons for approving the creation of an independent body werepractical rather than principled, the Netherlands was prepared to accept a more far-reaching supervisory system than most others. Both the Italian and the United Statesproposals met with strong resistance from a majority of the states, including the SovietUnion, and eventually they were withdrawn.59 All in all, the end result was that theICESCR not only lacked complaints mechanisms as included in the ICCPR and itsOptional Protocol, but also ended up with a weaker supervisory organ. Whereas theimplementation of the ICCPR would be monitored by a committee of independentexperts, in the case of the ICESCR, the consideration of states’ reports was left withECOSOC.

4.4 THE CREATION OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURALRIGHTS

After the ICESCR came into force on 3 January 1976, ECOSOC adopted a resolutionthat laid down the procedures regarding the reporting system and established a Ses-sional Working Group to assist ECOSOC in its supervisory duties. A later resolutiondetermined that this Working Group was to consist of fifteen governmental experts ofstates that would be selected from the ECOSOC-members as well as from the statesparties to the Covenant.60 However, within a few years time, there appeared to begeneral dissatisfaction with the functioning of the Sessional Working Group.61 For thatreason, the issue of creating a more independent supervisory organ was taken up again



62 Arambulo, 1999, p. 30.63 ECOSOC resolution 1980/24, 2 May 1980.64 Ministerie van Buitenlandse Zaken, 1981a, p. 476.65 Ibidem.66 Ibidem.67 Ibidem, p. 477.

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in the period between 1980 and 1985.62 In 1980, ECOSOC adopted a resolution bywhich it decided ‘to review at its organizational session for 1981…the composition,organization and administrative arrangements for the Sessional Working Group on theImplementation of the International Covenant on Economic, Social and CulturalRights’63

The Netherlands was in favour of a review of the ICESCR’s monitoring mecha-nism. In a speech in the Third Committee of the General Assembly of 3 November1980, its delegate explained the Dutch position. He said the first problem with theexisting system lay in the composition of the Sessional Working Group. Since it wasmade up of representatives of countries rather than of experts in their individualcapacity, ‘there is no clear guarantee that delegates in the group possess the expertisenecessary for an adequate evaluation of the reports submitted by the States Parties.’64

In combination with the fact that delegates participating in the Working Group oftenhad to perform other duties as well, this led to an undesirable situation in which ‘StatesParties sending experts to have their country reports explained before the WorkingGroup, may well find that the level at which their reports are being scrutinized is notparamount to the level at which these reports were drafted, and also that the quality ofthe procedure followed is hardly comparable to that established by the WorkingGroup’s opposite number, the Human Rights Committee.’65 The Netherlands opinedthat ‘[i]t might, therefore, be worthwhile for ECOSOC to consider an alternativeprocedure’, and making some concrete suggestions, it continued: ‘[a] body of, say,eighteen independent experts might be appointed by the Council from among candi-dates put forward by States Parties to the Covenant. That body of experts would thenbe charged with the mandate of examining reports, and advising the Council accord-ingly. It might be modelled to an appropriate extent after the Human Rights Committeeas regards working methods, terms of office etc., meeting also in between sessions ofthe Council.’66 The Netherlands made clear, however, that ‘[t]he idea would not detractfrom the independent responsibility entrusted to ECOSOC under the Covenant, as itwould always be for the Council to decide whether or not it would act on and inconformity with the Committee of Experts’ advice.’67

When the matter was discussed in ECOSOC in 1981, the Netherlands still showeditself a strong supporter of reform. However, there were also states that were opposed.Whereas the Western bloc considered the existing procedures insufficient, the SovietUnion and its partner states were quite satisfied with the system as it was. Moscow hadnot changed its opinion about the creation of international supervision since theCovenant was first drafted, and in ECOSOC it maintained that ‘the existing monitoringmethod was the best because the Group could analyse each State’s legislation and


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68 United Nations, 1985, p. 916.69 United Nations, 1985, p. 917; Arambulo, 1999, p. 30. For the text of the decision, see: ECOSOC

decision 1981/158, 8 May 1981. 70 United Nations, 1985, p. 917-918. For the text of the decision, see: ECOSOC decision 1981/162, 8 May

1981.71 See: ECOSOC decision 1982/33, 6 May 1982. The main change that was decided upon now concerned

the composition of the Working Group: instead of one-year appointments by the President of theCouncil, members would now be elected for a three-year term by ECOSOC from among the statesparties to the Covenant. See: United Nations, 1986, p. 1089; Arambulo, 1999, p. 30.

72 United Nations, 1986, p. 1090-1091.73 See: ECOSOC resolution 1985/17, 28 May 1985.74 United Nations, 1989, p. 879. See also: Arambulo, 1999, p. 31-32.

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compare the relative progress made in the implementation of the provisions of theCovenant without questioning the economic and social structure of individual States.’68

Due to these differences of opinion the discussion on the composition, organisationand administrative arrangements resulted in only minor adjustments: a change of nameinto ‘Sessional Working Group of Governmental Experts on the Implementation of theInternational Covenant on Economic, Social and Cultural Rights’, emphasizing theneed for special expertise, was the most important modification agreed upon.69

The Netherlands was not satisfied with this result and it introduced a draft decisionthat aimed at a reconsideration of the matter during the 1982 session of ECOSOC.From the Eastern Bloc there were appeals to withdraw this proposal, but after an oralamendment by Cyprus to omit the Working Group’s method of work from the reviewand to concentrate on its composition and organisation, it was eventually adoptedwithout a vote.70 In 1982, again, results were meagre. Only minor adaptions to thecomposition of the Working Group could be agreed upon, but at least the decision alsoincluded a paragraph that read: ‘The Economic and Social Council shall review thecomposition, organization and administrative arrangements of the Group of Expertsat its first regular session of 1985, and subsequently every three years, taking intoaccount the principle of equitable geographical distribution and the increase of thenumber of States parties to the Covenant.’71 The Netherlands sponsored the ECOSOCdecision together with nine other states, and it was adopted by a roll-call vote. TheSoviet Union, Bulgaria, and the Byelorussian Republic voted against, and seven othercountries abstained.72

In 1985, the supervisory system of the ICESCR finally saw some real reforms. Aresolution was adopted by ECOSOC that changed the name of the Sessional WorkingGroup into ‘Committee on Economic, Social and Cultural Rights’, raised the member-ship from fifteen to eighteen, and stipulated that the Committee’s members ‘shall beexperts with recognized competence in the field of human rights, serving in theirpersonal capacity’.73 Hence, an independent supervisory body was finally established.Most remarkably, the Soviet bloc states had changed their minds, and now favouredthis development.74 The only state to vote against the body was the United States,which, to the contrary, voted in favour of the minor reform steps of 1982. The Nether-lands was one of the co-sponsors of this 1985 resolution, as well as a 1984 resolution



75 United Nations, 1989, p. 879; United Nations, 1986, p. 1091. See also: Arambulo, 1999, p. 32.76 UN Doc. A/C.3/42/SR.39, p. 10; Ministerie van Buitenlandse Zaken, 1986, p. 142.77 See, for instance: Helgesen, 1990, p. 252; Baudet, 2001a, p. 257.78 Craven, 1995, p. 1; Coomans, 1997, p. 553.79 After the adoption of the Optional Protocol to the Convention on the Elimination of All Forms of

Discrimination against Women in 1999, which will be discussed in the next section, the ICESCR andthe Convention on the Rights of the Child (CRC) were the only two principal UN human rightsconventions that lacked a procedure for individual petitions (See, for instance: Vandenhole, 2003,p. 423-424). Although the question of whether such a procedure should be included in the CRC wasraised during its negotiation process, so far no serious attempts to add a complaints mechanism havebeen made, and according to the Chairman of the Committee on the Rights of the Child, Jaap Doek,at the moment such attempts are neither desirable nor needed. (Interview J.E. Doek, 28 October 2003.See also: Ineke Boerefijn and Martin Kuijer, ‘Nederlandse kruideniersmentaliteit niet bevorderlijk vooroptimale interpretatie IVRK, een interview met Jaap Doek, voorzitter van het VN Kinderrechtencomité’[Dutch petit bourgeois mentality not good for optimum interpretation of ICRC, an interview with Jaap

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that aimed, among other things, to prepare the 1985 decision-making.75 As the officialstatements make clear, it considered itself as the initiator of the resolution of 1985.76

Perhaps there was a Cold War element in the Netherlands’ efforts to establish anindependent supervisory organ for the ICESCR, because it brought the Soviet Unionin a difficult position. The Warsaw Pact countries usually blaimed the West forconcentrating on civil and political rights exclusively, and disregarding and violatingsocial and economic rights.77 As self-proclaimed champions of social and economicrights, the communist countries might thus be expected to support any effort tostrengthen the protection of these rights, but its general objections against independentinternational supervision, and the prospect of being criticized in respect to social andeconomic rights matters, made this option unattractive for them. This may explain whythe United States supported reform proposals initially, and it cannot be excluded thatit stimulated the Netherlands’ policies as well. On the other hand, it should be notedthat the Dutch position was different from that of the United States. While the latterwithdrew its support when it appeared possible to actually realize the creation of anindependent supervisory organ, the Netherlands continued its efforts, so apparently,the Netherlands aimed at more than discrediting the Soviet Union only and reallywanted the monitoring procedure to become more meaningful. Nevertheless, thequestion is: how far did it want to go? Was it also prepared to accept internationalcomplaints procedures for economic and social rights? 4.5 AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The creation of the Committee on Economic, Social and Cultural Rights gave theICESCR a great boost. The Committee started a process of normative development andrestructured the Covenant’s reporting system into a more enforcing variant.78 In thiscontext, the question of complementing the ICESCR with a complaints procedurebegan to be discussed, too.79 In the first few years, these deliberations mainly took


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Doek, chairman of the UN Committtee on the Rights of the Child] – In: NJCM-Bulletin, Vol. 30, No. 6,2005, pp. 692-699. See page 695.) The Committee suggests advocates to bring complaints aboutchildren’s human rights under other available complaints procedures. See: Mertus, 2005, p. 109.

80 Vandenhole, 2003, p. 425; Coomans, 1997, p. 563-565; Coomans, 2003, p. 23. The draft protocol canbe found in: UN Doc. E/CN.4/1997/105, 18 December 1996.

81 Vandenhole, 2003, p. 425; Arambulo, 2002, p. 72-73.82 UN Doc. E/CN.4/RES/2001/30, as quoted in Vandenhole, 2003, p. 427. See also: Arambulo, 2002,

p. 73.83 Vandenhole, 2003, p. 428-429; Coomans, 2003, p. 23-24.84 Thiele and Gómez, 2004, p. 491.85 Interview with A.P.M. Coomans, 7 July 2004. 86 UN Doc. E/CN.4/2004/44, p. 20; UN Doc. E/CN.4/2005/52, p. 21-23; UN Doc. E/CN.4/2006/47, p. 21.87 UN Doc. E/CN.4/2005/52, p. 21; UN Doc. E/CN.4/2006/47, p. 21; Appendices to the reports of the

Second Chamber, 2005-2006, 26 150, no. 39, p. 2; Coomans, 2003, p. 22; Thiele and Gómez, 2002,p. 376, footnote 121; Interview with A.P.M. Coomans, 7 July 2004.

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place in the Committee on Economic, Social and Cultural Rights, and in 1996, theyresulted in a draft Optional Protocol to the ICESCR, providing for a procedure forindividuals and groups to submit petitions concerning alleged violations of the rightsin the ICESCR.80 The draft was submitted to the Commission on Human Rights butwas met with considerable political opposition, and until 2001, the Commissionconfined itself merely to the adoption of decisions and resolutions in which repeatedrequests for comments from states, UN institutions and other intergovernmentalorganisations and NGOs were made.81 Finally, in 2001, a first, but still modest step tomove the matter forward was taken with the appointment of an independent expert. Hewas to ‘examine the question of a draft optional protocol to the International Covenanton Economic, Social and Cultural Rights…and to submit a report to the Commissionat its fifty-eighth session with a view to its consideration of possible follow-up andfuture actions, including the establishment of an open-ended working group’.82 Themandate of the independent expert was renewed for one more year in 2002, but inApril 2003, the Commission on Human Rights adopted a resolution in which an open-ended Working Group was established to consider options regarding the elaborationof a Protocol to the ICESCR.83 In 2004, the mandate of the Working Group wasextended for another two years.84

For several states, the establishment of a Working Group may have been a way totry and shelve the matter rather than a way to give real impetus to the development ofa petition procedure.85 In any case, serious political resistance against the principle ofhaving a complaints mechanism has continued to exist. For a long time a consensuscould not even be reached to begin the drafting process.86 Objections against theProtocol have in particular come from a number of Western states, including theUnited States and Australia as the Protocol’s most vocal opponents.87 On the otherhand, a growing number of states have expressed their approval with the elaborationof an Optional Protocol. In the Working Group’s meeting of 2005, statements ofsupport for an Optional Protocol were already made on behalf of the Group of LatinAmerican and Caribbean States (GRULAC) and the African Group, and several



88 UN Doc. E/CN.4/2005/52, p. 20-21.89 UN Doc. E/CN.4/2006/47, p. 21.90 Vandenhole, 2003, p. 425 and 460; Coomans, 2003, p. 22-23; Boerefijn, 1998, p. 46. See also: Thiele

and Gómez, 2002, p. 376; UN Doc. E/CN.4/2005/52, p. 21; UN Doc. E/CN.4/2006/47, p. 6.91 See: Human Rights Council resolution 2006/3.92 Appendices to the reports of the Second Chamber, 2005-2006, 30 300, chapter V, no. 142, p. 3;

Appendices to the reports of the Second Chamber, 2005-2006, 26 150, no. 39, p. 2. See also: UN Doc.E/CN.4/2006/47, p. 21-23.

93 UN Doc. E/CN.4/2005/52, p. 16-19 and 21-22; UN Doc. E/CN.4/2006/47, p. 6-8; Coomans, 2005,p. 875-876.

94 UN Doc. E/CN.4/2005/52, p. 4 and 21-22. See also: UN Doc. E/CN.4/2006/47, p. 13-15.95 Examples that can be mentioned are the government’s reaction to a 1994 advice of the Dutch Advisory

Committee on Human Rights and Foreign Policy to actively engage in the work towards an individualand collective complaints procedure to the ICESCR, a statement against a Protocol in its policy paperon human rights and foreign policy of 2001, and a reaction of the Minister of Foreign Affairs, BernardBot, to a question by the social-democratic parliamentarian, Bert Koenders, in 2004. See: Appendicesto the reports of the Second Chamber, 2000-2001, 27 742, no. 2, p. 35-36; Van Hoof, 1998, p. 10;

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individual countries, including some Western European states, gave their support aswell.88 One year later, the group of proponents of a Protocol increased even further,and there appeared to be a majority in favour of a Protocol.89 Besides, there is greatenthusiasm for an Optional Protocol among NGOs. Although initially the amount ofNGO-activity around the Protocol was limited – especially as compared to that aroundthe Optional Protocol to the Convention on the Elimination of All Forms of Discrimi-nation against Women of 1999 – NGOs have now organised themselves in a networkon the ICESCR and a coalition for the Protocol to this Covenant.90

In June 2006, the mandate of the Working Group was once again extended for aperiod of two years to elaborate a Protocol, and its Chairperson was requested to drawup a first draft that would take into account all views expressed on, inter alia, the scopeand application of an Optional Protocol.91 It was expressly stated that various ap-proaches should be taken into account, because opinions on how a Protocol should bedesigned differed considerably.92 Should it, for instance, be limited to the ‘core con-tent’, which is the minimum level of protection ensuing from the ICESCR’s obliga-tions, or should it also apply to smaller shortcomings in the implementation of socialand economic rights? Another option that has been tabled is to adopt an ‘à la carte’approach, which would allow states to accept complaints only for those rights that itconsiders justiciable in its domestic law. However, others have maintained that acomprehensive approach should be taken.93 Another question is: Who should beallowed to submit complaints? Should the procedure be open to individuals, or tocollective entities such as trade unions or NGOs, or both? On behalf of the Africangroup, Ethiopia has even suggested to allow interstate complaints concerning interna-tional assistance and cooperation to realize a worldwide fulfilment of social andeconomic rights, but several other states have rejected this idea.94

The Dutch government has been reluctant to support the Optional Protocol. It hasnever expressed itself in favour of this supervisory instrument; to the contrary, it has,since the start of the debate in the early 1990s, repeatedly expressed its reservations.95


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Arambulo and Toebes, 1996, p. 406-407; Appendices to the reports of the Second Chamber, 2003-2004,29 200, chapter V, no. 69, p. 4 and 9. For comparable examples, see: Appendices to the reports of theSecond Chamber, 2004-2005, 29 800, chapter V, no. 50, p. 18; Coomans, 2005, p. 878-879. For theAdvisory Committee’s advice, see: Advisory Committee on Human Rights and Foreign Policy, 1994,p. 15-16.

96 Appendices to the reports of the Second Chamber, 2001-2002, 27 742, no. 4, p. 5. See also: Appendicesto the reports of the Second Chamber, 2001-2002, 27 742, no. 6, p. 5-6; Appendices to the reports ofthe Second Chamber, 2000-2001, 27 742, no. 2, p. 35-36.

97 Jones-Bos, 2001, p. 85. See also: Coomans, 2003, p. 24.98 Ibidem.99 UN Doc. E/CN.4/2004/WG.23/2, p. 12.100 None of the reports on the Working Group’s session make mention of Dutch interventions or opinions,

although it must be noted that only one of them makes references to any state positions at all. See:UN Doc. E/CN.4/2004/44; UN Doc. E/CN.4/2005/52.

101 Interview with A.P.M. Coomans, 14 June 2006.

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The Netherlands’ main objections were related to the questions of the nature andjusticiability of social and economic rights, which were discussed in section two of thischapter. As the Ministers of Foreign Affairs and for Development Cooperation, Joziasvan Aartsen and Eveline Herfkens, explained in a discussion on the 2001 policy paperin the Parliamentary Standing Committee on Foreign Affairs, before a complaintsmechanism could be adopted, more clarity would be needed about the legal possibili-ties and limitations of giving the rights included in the ICESCR a directly applicablecharacter, and the way violations could be measured.96 In a speech, Renée Jones-Bos,the Dutch Ambassador-at-Large for Human Rights held on 5 October 2000, therelevance of these types of questions was made more concrete. She wondered: ‘[i]s itpossible to establish a causal link between an alleged violation and actions or failureto act of the government? For instance, if someone is not able to get hospitalisedbecause there is not enough staff (which actually is the case in the Netherlands now).’97

Moreover, she frankly admitted that ‘[p]olitically it is difficult to get States to take onobligations, which may involve considerable financial commitments.’98

Although the Netherlands did not actively oppose the idea of an Optional Protocolto the ICESCR at the international scene, it did make clear that it was far from enthu-siastic about the idea. In its formal reply to the Secretary-General of the UnitedNations, which was published in November 2003, the Netherlands wrote that it had‘not reached any conclusion with regard to the desirability of a complaint mechanismunder ICESCR.’99 Until 2005, the Netherlands also remained aloof in the WorkingGroup of the UN Commission on Human Rights. It was present, but it did not take avery active part in the discussions.100 In a discussion with representatives of NJCM andAmnesty International in January 2006, the Dutch Ambassador-at-Large for HumanRights promised that the Netherlands would engage itself more constructively with thenegotiations in the Working Group’s next session of February 2006.101 This promisewas kept, and in a letter to parliament of June 2006, the government declared that it



102 In the report of the Working Group of 2006, the Netherlands is mentioned on several places. See:UN Doc. E/CN.4/2006/47, p. 8, 11, 12, 14-15 and 22. For the letter to parliament, see: Appendices tothe reports of the Second Chamber, 2005-2006, 26 150, no. 39, p. 3.

103 Appendices to the reports of the Second Chamber, 2005-2006, 26 150, no. 39, p. 2. For the details ofthe discussion on these matters, see: UN Doc. E/CN.4/2006/47, p. 6-10.

104 Appendices to the reports of the Second Chamber, 2005-2006, 26 150, no. 39, p. 3. See also: UN Doc.E/CN.4/2006/47, p. 6.

105 Appendices to the reports of the Second Chamber, 2005-2006, 26 150, no. 39, p. 2; UN Doc. E/CN.4/2004/WG.23/2, p. 12.

106 Coomans, 2005, p. 876.107 Ibidem.108 Interview with A.P.M. Coomans, 7 July 2004. For further references to that meeting, see: Appendices

to the reports of the Second Chamber, 2001-2002, 27 742, no. 4, p. 5; Castermans-Holleman, 2001,p. 1055-1056.

109 Interview with A.P.M. Coomans, 7 July 2004. According to Coomans, this dialogue was an indirectresult of the appointment of Renée Jones-Bos as the first Ambassador-at-Large for Human Rights late1999. She showed herself very much open to NGOs, and after the NCJM had raised the issue of thecomplaints protocol in an introductory talk with her, she appeared prepared to discuss it further. The

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intended to continue to participate in the negotiations in order to be able to exertinfluence on the outcomes and the quality of a possible Protocol.102

This does, however, not mean that it has set its objections aside. Unlike, forinstance, Portugal, Austria, Spain and Finland, and the majority of African and LatinAmerican states, the Netherlands is, in any case, not in favour of a comprehensivecomplaints procedure that applies to all the Covenant’s articles and that can be invokedby individuals as well as collective entities.103 The Netherlands has indicated that itagrees with the position of another group of states, which consists of, among others,the United Kingdom, Sweden, Germany, India, Canada and Japan. It wants to leavethe option open not to create any Protocol at all, but it is prepared to discuss alterna-tives that are less far-reaching.104 Perhaps, it would, for instance, be able to accept aProtocol if it were to apply to the core content of the ICESCR’s provisions only, or ifan ‘à la carte’ approach were to be taken.105 The main reason for this is of course thata concentration on the core contents or the possibility of accepting complaints for someprovisions only would diminish the likelihood of complaints and undesirable restric-tions in autonomous decision-making on the allocation of the public budget.106 Froma principled point of view, this would, however, imply a denial of the principle of theinterdependence, interrelatedness and indivisibility of all rights.107

The appraisal of the dilemma between this moral argument on the one hand, andthe question of possible financial consequences on the other hand, has been madedifferently at the Dutch ministries. This became apparent, for instance, during adialogue at a meeting between government representatives and NGOs that took placein 2000.108 At the meeting, academic and NJCM experts who had been lobbying fora Protocol for several years, got the opportunity to discuss the question of a complaintsmechanism under the ICESCR with officials of the Ministry of Foreign Affairs, theMinistry of Justice, the Ministry of Social Affairs and Employment and the Ministryof Home Affairs.109 It is remarkable that more than half of the officials present were


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NJCM attached great value to the development and adoption of a Protocol providing for a complaintsmechanism to the ICESCR, which was one of the central themes on which it focused in the field ofsocial and economic rights. See: Interview with A.P.M. Coomans, 7 July 2004; Arambulo and Toebes,1996, p. 407. The NJCM has published several articles and reports on the issue to try and influencegovernment policies. See, for example, NJCM, 1994; Arambulo and Toebes, 1996; NJCM, 1998;Coomans, 2005. It should be noted that at that time, Amnesty International was not yet involved in thelobby for the Protocol; it would start to support NJCM’s efforts a few years later. (Interview withA.P.M. Coomans, 14 June 2006).

110 Interview with A.P.M. Coomans, 7 July 2004. In the Netherlands, government officials are permittedto participate in networks and non-governmental organisations on the basis of their personal or politicalpreferences, as long as the person in question does not express himself in a manner that might hamperhis functioning as an official. Hence, an NJCM member who is working as a government official willalways have to represent the Ministry’s policy (See: NRC Handelsblad (Rotterdam), 21 July 2004). Itshould be noted that the NJCM has several active members that have a job as an official at one of theMinistries at the same time. As a rule, those members do not participate in the NJCM-activities in caseof incompatibility of duties. (Interview with A.P.M. Coomans, 7 July 2004).

111 Interview with J.R. van Blankenstein, 24 December 2004; Interview with A.P.M. Coomans, 7 July2004. Later it appeared that the Ministry of Justice was opposed to the Protocol as well. (Interview withA.P.M. Coomans, 14 June 2006).

112 Interview with J.R. van Blankenstein, 24 December 2004; Coomans, 2003, p. 27. Coomans rightlyremarks that from a legal perspective the complaints procedure does not lead to any new obligations,because the standards are already there. However, from a political point of view this does not necessari-ly need to be true; as long as there is no international jurisprudence, the norms remain vague as aconsequence of which policy freedom is greater. Moreover, domestic courts may adopt the views ofthe Committee on Economic, Social and Cultural Rights, which may also result in judgments thatchallenge the government’s policies.

113 Interview with J.R. van Blankenstein, 24 December 2004. It should be noted that Coomans alsorecognized that there are problems with the quality of the Committee-members (Interview with A.P.M.Coomans, 7 July 2004).

114 Interview with A.P.M. Coomans, 7 July 2004; Interview with J.R. van Blankenstein, 24 December2004.

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also either NJCM-members or former NJCM-members, but of course they had torepresent their Ministry’s point of view.110 For the representatives of the Ministries ofSocial Affairs and Employment and Home Affairs, this meant that they had to takeposition against the idea of an Optional Protocol.111 According to these Ministries,social and economic rights were not justiciable, and they wanted to avoid the risk ofcomplaints being lodged against the Netherlands, mostly because they might lead tobudgetary problems.112 Besides, the experience that the Ministry of Social Affairs andEmployment had with the Committee on Economic, Social and Cultural Rights wasnot very positive; it was considered an amateurish Committee that made arbitrarydecisions. As compared to, for instance, the ILO institutions, it functioned as a kanga-roo court.113 It goes without saying that this did not stimulate a favourable attitudetowards an Optional Protocol.

The Ministry of Foreign Affairs, on the other hand, gave the impression that itmight be prepared to take a positive stand.114 It should be noted that the initiative tocreate an independent supervisory organ for the ICESCR had also come from the



115 Interview with J.R. van Blankenstein, 24 December 2004.116 Tolley, 1994, p. 175-176; Tolley, 1989 p. 581; Interview with A.P.M. Coomans, 7 July 2004.117 The Limburg Principles have been published in: Human Rights Quarterly, Vol. 9, no. 2, 1987,

pp. 122-135. 118 Martin, 1998, p. 191-201; Tolley, 1994, p. 176; Interview with A.P.M. Coomans, 7 July 2004. For the

UN document, see: UN Doc. E/CN.4/1987/17, 8 January 1987.119 Van Boven, Flinterman and Westendorp, 1998, p.viii.120 Tolley, 1994, p. 176, Interview with A.P.M. Coomans, 7 July 2004. For the list of participants of the

Limburg Conference of 1986, see: Human Rights Quarterly, Vol. 9, No. 2, 1987, pp. 285-286. For thelist of participants of the Maastricht Conference of 1997, see: Human Rights Quarterly, Vol. 20, No. 3,1998, pp. 702-704.

121 Interview with J.A. Walkate, 21 April 2004.

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Ministry of Foreign Affairs.115 Moreover, in the 1980s and 1990s, this Ministry hadalso been involved in the organisation of two expert meetings that aimed at furtherclarifying the content and meaning of social and economic rights. The first meetingtook place in 1986. The ICJ organised it together with Maastricht University and theUrban Morgan Institute of Human Rights in Cincinnati (Ohio), but it was financed bya grant from the Dutch Ministry of Foreign Affairs.116 The meeting resulted in adocument that gave an interpretation of the obligations ensuing from the ICESCR’sarticles, the so-called ‘Limburg Principles on the Implementation of the InternationalCovenant on Economic, Social and Cultural Rights’.117 The Dutch governmentintroduced the Limburg Principles in the UN, and they were published as an officialUN document. The Principles were also picked up in other scholarly studies, and areconsidered important for the thinking about economic, social and cultural rights.118 Themeeting was considered such a success that another expert meeting was organisedearly 1997 to celebrate the tenth anniversary of the Limburg Principles, which was alsomade possible by a financial grant from the Dutch Ministry of Foreign Affairs. Itresulted in another set of principles, which seek to make clear when one can actuallyspeak of a ‘violation’ of rights under the ICESCR. These are the so-called ‘MaastrichtGuidelines on Violations of Economic, Social and Cultural Rights’.119

In the past, the Ministry of Foreign Affairs, and in particular officials of theHumanitarian and Legal Affairs Section, had thus been positively disposed towards afurther development of legal theories that aimed to stimulate the application of socialand economic rights as justiciable rights. Unlike other Ministries, the Ministry ofForeign Affairs was represented at both expert meetings, and one of its officials hadeven played a leading role.120 At the Ministry of Foreign Affairs, the idea of anindividual complaints system concerning social and economic rights also met withdoubts and questions, and it was thought that applying such a procedure for these kindsof rights was much more complicated than it was when civil and political rights wereconcerned.121 Yet, in the light of the above, it is not surprising that it showed itselfmore open to the arguments in favour of a complaints procedure than other Ministries.At the same time, it should not be overlooked that the Ministry of Foreign Affairs wasin a better position to do so than, for instance, the Ministry of Social Affairs and


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122 Interview with J.R. van Blankenstein, 24 December 2004; Interview with L.J.A. van Amersfoort,13 January 2005.

123 Article 5 CERD.124 Ministerie van Buitenlandse Zaken, 1966, p. 276-277, 280-281 and 600-602. See also: Castermans-

Holleman, 1992, p. 118. See also: Appendices to the reports of the Second Chamber, 1981-1982,17 100, chapter V, no. 2, p. 41.

125 Article 14.1 CERD.126 Appendices to the reports of the Second Chamber, 1983-1984, 18 100, chapter V, no. 2, p. 60.127 This follows, for instance, from article 1 CEDAW, which reads: ‘For the purposes of the present

Convention, the term “discrimination against women” shall mean any distinction, exclusion orrestriction made on the basis of sex which has the effect or purpose of impairing or nullifying therecognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equalityof men and women, of human rights and fundamental freedoms in the political, economic, social,cultural, civil or any other field.’ Some articles are devoted to a particular right in either of the twocategories. For instance, article 7 includes a number of civil rights that aim to eliminate discriminationagainst women in the political and public life, while article 11 lists several economic rights, such as theright to work and the right to social security.

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Employment, because, unlike the latter, it would not have to deal with the financialconsequences that might follow from a Protocol.122

4.6 OTHER COMPLAINTS PROCEDURES FOR SOCIAL AND ECONOMIC RIGHTS’PROTECTION

A question that can be posed is whether the Netherlands has always been disinclinedto accept complaints mechanisms for social and economic rights. The answer is no. Ata worldwide level, there are at least three examples that can illustrate this. A first casein point is that of the International Convention on the Elimination of All Forms ofRacial Discrimination (CERD) of 1965. This Convention obliges states to takemeasures to prohibit and eliminate racial discrimination, among others by guaranteeingeveryone’s civil and political as well as social and economic rights123 During theConvention’s negotiations, the Netherlands showed itself strongly in favour of anindividual petitions procedure.124 It was successful, and the text that was adoptedincluded the possibility for a state party to declare that it would recognize the compe-tence of the Convention’s supervisory body ‘to receive and consider communicationsfrom individuals or groups of individuals within its jurisdiction claiming to be victimsof a violation by that State Party of any of the rights set forth in this Convention.’125

When it ratified the instrument in 1971, the Netherlands appeared to be prepared tomake a declaration of acceptance, as a consequence of which petitions concerningdiscrimination in the enjoyment of social and economic rights can be lodged as well.126

Another UN Convention that deals with both categories of rights is the Conventionon the Elimination of All Forms of Discrimination Against Women (CEDAW) of1979.127 Initially, this Convention only provided for a periodical reporting procedure,but in 1999, an Optional Protocol to the Convention on the Elimination of All Formsof Discrimination Against Women was adopted, which provided for a complaintsmechanism for individuals and groups of individuals and an optional inquiry proce-



128 See article 18, CEDAW and articles 1-7 and 8-9 CEDAW-OP respectively.129 Department of Social and Economic Affairs of the UN Division for the Advancement of Women, 2000,

p. 2; Byrnes and Connors, 1996, p. 688. The question of adding a complaints procedure was alsobrought up by, among others, Sweden, Canada and Belgium, but concrete text-proposals had not beenproduced. See: Byrnes and Connors, 1996, p. 684-688; Department of Social and Economic Affairs ofthe UN Division for the Advancement of Women, 2000, p. 1-2; Flinterman, 1995, p. 5.

130 In the first years after the entry into force of the Women’s Convention, the issue of a complaintsprocedure faded into the background, but as of the early 1990s, interest in it increased, and NGOsstarted to lobby for the creation of such a procedure. Eventually, in the final document of the 1993World Conference on Human Rights in Vienna, an appeal was made to the Commission on the Statusof the Women and the Committee on the Elimination of Discrimination against Women to quicklyexamine the possibilities in this respect. See: Byrnes and Connors, 1996, p. 689-692; Flinterman, 1995,p. 5; Department of Social and Economic Affairs of the UN Division for the Advancement of Women,2000, p. 2.

131 Appendices to the reports of the Second Chamber, 1990-1991, 21 800, chapter V, no. 91, p. 21.132 See: Appendices to the reports of the Second Chamber, 2000-2001, 27 742, no. 2, p. 37.133 Byrnes and Connors, 1996, p. 693; Flinterman, 1995, p. 6.134 Byrnes and Connors, 1996, p. 693-695.135 UN Doc. E/CN.4/1996/10, in: Department of Social and Economic Affairs of the UN Division for the

Advancement of Women, 2000, p. 97.136 Byrnes and Connors, 1996, p. 708-734; Flinterman, 1995, p. 6

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dure.128 At the time of the Convention’s drafting, the Netherlands had already recom-mended serious consideration of provisions for interstate as well as individual com-plaints.129 Hence, it was not surprising that it also showed itself an active contributorto the creation of the Protocol when that matter appeared on the agenda in the early1990s.130 In its follow-up memorandum on human rights and foreign policy of Septem-ber 1991, the government made clear that it was in favour of a possibility for womento submit individual complaints concerning violations of their rights.131 In its 2001policy paper, it even maintained that it had itself produced the first draft.132 This claimwas somewhat exaggerated, but it is true that it had helped to facilitate an initialdrafting attempt. Together with the Australian government it funded an internationalexpert meeting on the issue, which was organised by the International Human RightsLaw Group in Washington and the Maastricht Centre for Human Rights of the Univer-sity of Limburg in September 1994.133 The text of the draft Optional Protocol that wasproduced at this meeting, served as the first basis for the negotiations at the UN.134

As becomes clear from the Dutch reply to the Secretary-General’s invitation togovernments to submit comments on the question of an Optional Protocol to theWomen’s Convention, the Netherlands ‘was convinced that the Committee on theElimination of Discrimination against Women should be empowered to receive andinvestigate complaints’, and it supported the proposal drawn up in Maastricht.135 Asis the case with the rights protected by the ICESCR, the question of justiciability alsoplayed a prominent role in the discussions about the CEDAW-Protocol.136 Apparently,the Netherlands did not have any concerns in relation to the justiciability of the rightsin the Women’s Convention; at least, unlike some other countries’ comments on the


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137 See: UN Doc. E/CN.6/1996/10, in: Department of Social and Economic Affairs of the UN Division forthe Advancement of Women, 2000, p. 98-100; UN Doc. E/CN.6/1997/5, in: Department of Social andEconomic Affairs of the UN Division for the Advancement of Women, 2000, p. 74-77.

138 See article 2 (1) of the Maastricht draft, in: Byrnes and Connors, 1996, p. 786-787.139 An example of an article that includes rights that are less clearly described is, for instance, article 8,

which reads as follows: ‘States Parties shall take all appropriate measures to ensure to women, on equalterms with men and without any discrimination, the opportunity to represent their Governments at theinternational level and to participate in the work of international organisations.’ Another example isarticle 12.1, which reads: ‘States Parties shall take all appropriate measures to eliminate discriminationagainst women in the field of health care in order to ensure, on a basis of equality of men and women,access to health care services, including those related to family planning.’ The formulation ‘shall takeall appropriate measures to’ makes it harder to judge whether a state has lived up to its obligations.Besides, it will sometimes be difficult to determine whether inequalities can be attributed to (a lack of)government policies; other factors may play a role as well.

140 See: http://www.un.org/womenwatch/daw/cedaw/sigop.htm, accessed 11 September 2006.141 See: http://www.ilo.org/ilolex/english/convdisp2.htm, accessed 11 September 2006.142 Valticos and Von Potobsky, 1995, p. 19-20 and 47; Boonstra, 1996, p. 14-17, 218-219, 230, 252.143 For the different procedures, see the articles 22-23, 24-25, and 26-34 ILO Constitution respectively.

For a description and analysis of each of these procedures, see: Samson and Schindler, 1999, p. 196-208; Betten, 1988b, p. 32-36; Betten, 1993, p. 394-414; Valticos and Von Potobsky, 1995, p. 284-309.

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Protocol, the Dutch comments did not touch upon this issue.137 From its approval ofthe Maastricht draft – which recognizes the competence of the Committee to receiveand examine communications concerning violations of any of the rights, or failures togive effect to any of its obligations under the Convention138 – it may be derived thatit recognized the justiciability of all provisions of the Women’s Convention right fromthe start, including those on social and economic rights, or other rights that were lessprecisely circumscribed.139 The Netherlands ratified the Protocol on 22 May 2002,which proves that it did not change its mind afterwards in this respect.140

Apart from these two UN Conventions, the ILO-system also provides for proce-dures under which complaints can be lodged. Since its founding in 1919, 185 conven-tions have been adopted.141 Initially, the ILO aimed at setting minimum standardsregarding clearly defined but limited demands of workers. It continued to do so, butafter the Second World War, its scope of activity broadened. Influenced by a wave ofinternational human rights standard setting, it also started to develop a human rightsbased approach and, to a certain extent, the ILO also got involved in social rights thatdo not only concern the individual as a worker in the strict sense of the word.142 TheILO Constitution provides for a number of supervisory mechanisms that apply to allILO Conventions. These are: a reporting procedure, a representation procedure and acomplaints procedure.143 It would go too far to give a detailed description of each ofthose procedures here, but what is important in the context of this section is that therepresentation procedure gives associations of workers or employers the right to makea representation alleging the failure of a given state to ensure the effective observanceof an ILO Convention to which it is bound. Workers’ and employers’ organisationsthat participate as delegates to the ILO’s ‘legislative’ body, the tri-partite International



144 The complaints procedure involves a much more thorough investigation than the representationprocedure. Another difference is that the complaints procedure results in an extensive report withconclusions and recommendations that a state will either have to accept or refer to the InternationalCourt of Justice in The Hague. If a state does not solve the matter raised in a representation, the onlyconsequence is that the representation may be published together with possible statements by the stateconcerned. These are some of the reasons why the complaints procedure can be considered more far-reaching than the representation procedure. See: Samson and Schindler, 1999, p. 204 and 206; Betten,1988b, p. 34-35; Betten, 1993, p. 406-411; Valticos and Von Potobsky, 1995, p. 290-294.

145 Samson and Schindler, 1999, p. 209-211, 200 and 207; Betten, 1988b, p. 36-38; Betten, 1993, p. 411-414; Valticos and Von Potobsky, 1995, p. 295-299.

146 Betten, 1988b, p. 38.147 Ministerie van Buitenlandse Zaken, 1967, p. 271.148 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 76.149 Jones-Bos, 2001, p. 84.150 Van der Ven, 1986, p. 325-330.151 Advisory Committee on Human Rights and Foreign Policy, 1994, p. 8, 19 and 32.

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Labour Conference, can also initiate the more far-reaching complaints procedure.144

Apart from this, there is a special Freedom of Association complaints procedure, whichgovernments as well as employers’ and workers’ organisations can invoke in cases ofalleged breaches of the freedom of association, and a system of direct contacts, underwhich a direct contact mission can be sent to a country in cases of prolonged contro-versies.145

The ILO-system has been said to function better than that of the ICESCR and theESC.146 The Dutch government was also very positive about its working, and itsappreciation seems to have been constant over the years. In a statement made beforethe Third Committee of the UN General Assembly in 1966, it expressed the opinionthat the Committee of Experts on the Application of Conventions and Recommenda-tions of the ILO was an example of an ‘expert bod[y] dealing with human rightsmatters [that is] performing an excellent job.’147 Whereas the 1979 policy papermentioned the ECHR-procedures as the most far-reaching regional system, it wasmaintained that ‘[a]mong the worldwide systems, the body of provisions operatingwithin the framework of the ILO is not only the oldest but undoubtedly the mosteffective.’148 And in a speech by the Dutch Ambassador-at-Large for Human Rightsof 5 October 2000, the organisation was called a classic example of a UN SpecialisedAgency that is doing a great deal in the field of realising economic and social rights.149

Generally speaking, the Netherlands can be considered a loyal, interested andcooperative ILO-member.150 Apparently, in the eyes of the Dutch Advisory Committeeon Human Rights and Foreign Policy, in spite of the fact that it had not yet ratifiedcertain ILO Conventions, the Netherlands had a better reputation in the ILO than otherEU countries, for it warned that in case of coordination of points of view of EUmember states, the Netherlands might ‘forfeit ‘the profile’ it has built up over the yearsin this area’.151 And as Van der Ven and Betten stated in 1986 and 1993 respectively,


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152 Van der Ven, 1986, p. 329; Betten, 1993, p. 26. See also: Appendices to the reports of the SecondChamber, 1994-1995, 23 900, chapter XV, no. 44, p. 3.

153 Boonstra, 1996, p. 191-216; Betten, 1993, p. 99-100.154 UN Doc. E/CN.4/2004/WG.23/2, p. 5.155 This can be demonstrated by the case of the Protocol to the CEDAW-Convention. The question of

justiciability also played a prominent role in the discussions on whether this Protocol should beadopted. From an article on the – then draft – CEDAW Protocol by Byrnes and Connors, it follows thatin this respect the legal problem area was, in the final analysis, more or less similar to that of thejusticiability of the rights contained in the ICESCR, and it is therefore not surprising that the argumentsagainst legal objections regarding the justiciability of the rights guaranteed by the Women’s Conventiondo not differ much from those used by proponents of an ICESCR Protocol. Nonetheless, it appearedeasier for the Netherlands (and other countries) to accept legal arguments in favour of justiciability inthe case of the CEDAW Protocol than in the case of the discussion on an Optional Protocol to theICESCR. For the discussions on the CEDAW Protocol, see: Byrnes and Connors, 1996, p. 708-734;Flinterman, 1995, p. 6. For a comparison with the arguments used in the case of the ICESCR Protocol,see for example: Coomans, 2003, p. 25-27; Vandenhole, 2003, p. 430-447.

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within ILO, the Netherlands in fact belongs to the group of states with the highestnumber of ratifications.152

As the representation and complaints procedures apply to all ILO Conventions, thismeans that the Netherlands has also accepted the right of workers’ and employers’organisations to complain about many subjects in the field of economic and socialrights. They have in fact already been applied against the Netherlands. In the late1970s and early 1980s, the Netherlands continuously interfered in the collectivebargaining process between employers’ and workers’ organisations by means of wagemeasures. Trade unions as well as employers’ organisations then turned to the ILO andcomplained that the Dutch government did not respect the right to free collectivebargaining. Eventually, this even led to the sending of a Direct Contact Mission, andthe Netherlands adapted its policies and legislation to bring them in line with ILOstandards.153

All in all, it can be concluded that the question of a complaints procedure for socialand economic rights was judged differently from case to case. Why did the Nether-lands accept and even promote such a procedure in the cases of the Convention on theElimination of Racial Discrimination and the Women’s Convention, while it isreluctant to do so in the case of the ICESCR? The formal position of the Dutchgovernment is that non-discrimination rights are absolute, and therefore justiciable,also in respect to the fulfilment of social and economic rights.154 As has been madeclear earlier in this chapter, the Netherlands does not, however, recognize thejusticiability of other aspects of social and economic rights. This explains why thesupervision of the anti-discrimination treaties was approached differently than in thecase of the ICESCR. However, it should be noted that the difference in approachcannot be explained only from a purely legal point of view; the government’s viewson justiciability also depend on political considerations.155 In this respect, it is impor-tant to pay attention to one important difference between the ICESCR and the othertwo UN Conventions: the former contains obligations for states to meet certain



156 Samsom, 1991, p. 125-126 and 136.157 Samson and Schindler, 1999, p. 203-204; Samson, 1991, p. 132 and 137.

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standards, while the latter only bind states to guarantee that there is no discriminationin the enjoyment of human rights and are not concerned with setting minimum normsas such. This is an essential difference, because in case of a non-discriminationobligation, it is possible to bring domestic policies and law into line with internationaltreaty obligations not only by raising the level of protection for women or racialgroups, but also by adjustments that lead to a lower level of protection for all. As therights in the ICESCR have to be achieved progressively, the same kind of measureswould not be possible under this Covenant. In the latter case, financial implications arethus likely to be more extensive.

The above line of reasoning, however, does not apply to the ILO Conventions, forwhich the Netherlands has also accepted petition mechanisms. There are two possibleexplanations for the difference in treatment between the ICESCR and the ILO Conven-tions. One possible explanation for this might be that, contrary to the ICESCR, the ILOConventions deal with problems one by one, and therefore provide for standards thatare much more precise than those of the ICESCR. Consequently, it is easier for statesto assess what measures it has to take to comply with these Conventions, while in thecase of the ICESCR it is less clear what they have actually committed themselves to.156

A second possible explanation could be that the character of the ILO complaintsprocedures is somewhat different from the ones known in the UN-context. They arenot open to individuals claiming to be victims of violations, and they are aimed atexamining and securing solutions for general rather than individual situations, as aconsequence of which the question of justiciability may be less relevant.157 In thisrespect, the ILO complaints system is comparable to the collective complaints mecha-nism under the European Social Charter. This mechanism will be discussed in the nextchapter.

4.7 THE EUROPEAN SOCIAL CHARTER

Turning now to the Council of Europe, it can be remarked that there are significantsimilarities between the history of social and economic rights protection in thisorganisation and in the UN. As was the case in the UN, the Council of Europe decidedto draft two separate treaties: one for civil and political rights, the European Conven-tion for the Protection of Human Rights and Fundamental Freedoms (ECHR), and onefor economic and social rights, the European Social Charter (ESC). The ECHR’sdrafters did not want to incorporate economic and social rights for several reasons. Itwas not denied that these required protection too, but so shortly after World War II,and impressed by the communist take-over in Czechoslovakia in February 1948, theCouncil of Europe’s member states felt that the immediate need was most of all toguarantee those values that were essential for a democratic way of life in Europe.Inclusion of economic and social rights would have made the text more controversial


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158 Harris and Darcy, 2001, p. 2-3; Gomien, Harris, and Zwaak, 1996, p. 14 and 377-378; Jaspers andBetten, 1988a, p. 1-2; Klerk, 1990, p. 4 and 6; Flinterman, 1994, p. 169-170.

159 Castermans-Holleman, 1992, p. 103.160 Ministerie van Buitenlandse Zaken, 1950, p. 66-68.161 Ministerie van Buitenlandse Zaken, 1964, p. 506.162 Ministry of Foreign Affairs of the Kingdom of the Netherlands, 1979, p. 24.163 Klerk and Van Poelgeest, 1991, p. 223-227; Klerk, 1990, p. 10-11; Castermans-Holleman, 1992,

p. 103-104.164 Berchtold, 1991. See also: Appendices to the reports of the Second Chamber, 1982-1983, 17 600,

chapter V, no. 2, p. 57. For more information on the discussion about possible inclusion of economic,social and cultural rights in the ECHR, see: Jacobs, 1978.

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and might have delayed its acceptance. Besides, it was obvious that in these years, notmany European countries would be in a position to actually fully observe economicand social rights.158

In the Netherlands, the project of drawing up a European human rights conventionwas also seen as a consequence of a post-war desire to try and prevent flagrant in-fringements of the human rights and freedoms Europe had experienced before andduring the Second World War.159 There is no reason to assume that the Netherlands’position concerning the incorporation of social and economic rights was any differentfrom the position that it took in the case of the UN Covenants. At least, the descriptionof the drafting history of the ECHR in the Yearbook of the Dutch Ministry of ForeignAffairs does not contain any indication that it regretted the absence of economic andsocial rights.160 Moreover, during the drafting of the UN Covenants, the way in whichthe Council of Europe had dealt with both categories of rights was used as a justifica-tion for making a distinction in the UN as well.161 Many years later, the Netherlandsstill approved the exclusion of social and economic rights from the ECHR. It arguedthat one of the most innovative aspects of this Convention lay in its far-reachingsystem of international supervision, which could eventually result in a legally bindingdecision of the ECHR’s organs, and that this was made possible precisely because itconcentrated on classic civil and political rights only.162

At the time, this can hardly have been the argument on which the Netherlandsbased its position, because it had then been opposed to the establishment of a Courtthat could make binding decisions and a procedure for individual petitions.163 How-ever, it did determine the Dutch stand when in the late 1970s the idea of extending theECHR with certain social, economic and cultural rights was being studied in theCouncil of Europe. There were several pros and cons one could think of in this regard,but eventually, not many states were in favour of adding economic and social rightsto the ECHR.164 The Netherlands rejected it too. In considering the possible additionof any new rights to the ECHR, the Dutch government deemed it crucial to guaranteethat the inclusion of new rights would not put into danger the Convention’s function-ing as a generally accepted minimum standard of fundamental rights with an impera-tive judicial enforcement system. Therefore, the only rights eligible for incorporationin the ECHR-system should be those that were universal and justiciable and of a



165 Appendices to the reports of the Second Chamber, 1982-1983, 17 600, chapter V, no. 2, p. 57. 166 Memorandum from the Assistant Legal Adviser at the Ministry of Foreign Affairs to the Council of

Europe and Scientific Cooperation Department of the Ministry of Foreign Affairs, 26 November 1984,Archive MFA, RvE 1975-1984, 999.438.0, file 1072; Appendices to the reports of the SecondChamber, 1983-1984, 18 100, chapter V, no. 2, p. 62; Appendices to the reports of the SecondChamber, 1984-1985, 18 600, chapter V, no. 2, p. 62-63.

167 Quoted in: Harris and Darcy, 2001, p. 4.168 Harris, 1984, p. xiv.169 Harris and Darcy, 2001, p. 3-4.170 Ibidem, p. 4-5 and 8-9. See also: Ministerie van Buitenlandse Zaken, 1957, p. 37.171 Article 20 (1a), ESC.

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fundamental character.165 According to the Netherlands, social and economic rights didnot meet these criteria. It was feared that extending such rights to the ECHR wouldinjure its functioning, and, according to the Netherlands, improvements in the protec-tion of social and economic rights should thus preferably be confined to the contextof the European Social Charter.166

This Charter was adopted in 1961. Work on its drafting started a few years after theadoption of the European Convention on Human Rights; on 20 May 1954, the Com-mittee of Ministers instructed its newly established Social Committee to ‘endeavourto elaborate a European Social Charter’.167 Compared to the drafting of its civil andpolitical rights counterpart, this treaty-making process was much more difficult. Ingeneral, the member states’ interest in the Council of Europe diminished, and espe-cially, they did not particularly warm to the idea of an economic and social rightstreaty.168 The Council of Ministers had given the Social Committee a mandate to tryand draw up the Charter only after considerable discussion, and once the SocialCommittee started its deliberations, hesitations and doubts that several states hadalready brought to the fore in the Council were reiterated by their representatives in theSocial Committee.169

There were proponents of a legally binding Charter, but other states preferred notto go any further than a declaration of principles and objectives. In the end, thisresulted in a compromise-formula that divided the Charter into two substantive parts.170

Part I contained a list of policy objectives that contracting parties were to consider ‘asa declaration of the aims which it will pursue by all appropriate means’.171 They wereto accept this part in its entirety. Part II, on the other hand, consisted of obligations thatwere binding in law. It covered such rights as the right to work, the right to bargaincollectively, the right to social security, and the right to social and medical assistance.The drafters never seriously considered a requirement for contracting parties to acceptall of the provisions in this part. This was not believed to be realistic. There were greatdifferences in the social and economic progress in the Council of Europe’s memberstates, and if any meaningful standards were set, substantial resources would be neededfor a country to actually meet them all. This would be problematic, especially for thepoorer countries in the Council of Europe. Another difficulty was that the idea ofconsidering economic and social aspirations as human rights was not generally


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172 Gomien, Harris, and Zwaak, 1996, p. 379; Harris and Darcy, 2001, p. 37.173 See: Ministerie van Buitenlandse Zaken, 1959, p. 40-43; Ministerie van Buitenlandse Zaken, 1960b,

p. 38-42; Ministerie van Buitenlandse Zaken, 1961, p. 37-42; Ministerie van Buitenlandse Zaken,1962a, p. 39-43. It must be noted, however, that in this respect, the Netherlands seemed to follow theinstitutional structure and the practice of the Council of Europe publications. See: Harris, 1991,p. 27-28.

174 See: Article 20 (1c) ESC. It should be noted that this minimum has been raised under the RevisedEuropean Social Charter of 1996. See: Harris and Darcy, 2001, p. 19.

175 Harris and Darcy, 2001, p. 5-6.176 Ibidem, 2001, p 5-6. For the Netherlands’ point of view, see: Appendices to the reports of the Second

Chamber, 1965-1966, 8606 (R 533), no. 3, p. 1.177 Harris, 1984, p. 7-8.178 See, for example: Baehr, 2001, p. 73; Forsythe, 2000, p. 111.

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accepted among the Council of Europe’s member states.172 Apparently, in the Nether-lands this idea was not yet internalized either; in the yearbooks of the Ministry ofForeign Affairs, negotiations on the Charter were consistently being dealt with underthe heading of ‘social affairs’, while relevant developments concerning the ECHRwere described in a section entitled ‘human rights’.173

Hence, it was decided that in order to become a party to the Charter, a state had todeclare itself bound only by a prescribed minimum of these obligations. It had toaccept at least five out of seven specified articles, and in addition, it had to consideritself bound by a total number of provisions that were not less than ten articles or forty-five numbered paragraphs.174 The Consultative Assembly, as the ParliamentaryAssembly of the Council of Europe was then called, rejected this ‘à la carte’ approach’,and a Tripartite Conference of government, employers’ and workers’ delegates, whichwas convened in December 1958 to comment upon the Social Committee’s first draft,expressed the opinion that there should at least be a common core of obligationsaccepted by all of the contracting parties.175 The Netherlands agreed with the idea ofa fixed set of obligatory provisions, but like most other suggestions in favour of astronger Charter, a less flexible approach proved to be unacceptable to most of theCouncil of Europe’s member states.176

When the ESC was finally adopted in 1961, reactions from the academic world andthe Consultative Assembly were generally characterized by disappointment andscepticism. It was, among others, felt that the standards that were set could have beenmore ambitious, and that the minimum number of obligations states had to accept uponratification was too low.177 And there were imperfections in the Charter’s procedurefor supervision too. In the next chapter, the working of the system and its flaws willbe discussed more extensively; here we will confine ourselves to the observation that,similar to the situation in the UN, in terms of the effectiveness of their respectivemeans for enforcement, the ECHR was clearly the stronger infant of the Council ofEurope’s basic human rights documents. With a European Court of Human Rightsmaking legally binding decisions, the ECHR is generally known as having the mosteffective existing supervisory procedure in the world.178 However, no such court wasestablished for supervising the implementation of the ESC; the implementation of the



179 Harris, 1984, p. xv and 263; CoE Doc. Charte/Rel (90)2, p. 12.180 Gomien, Harris, and Zwaak, 1996, p. 14.181 Jaspers and Betten, 1988a, p. 2. This means, for example, that there is an obligation for contracting

parties to aim for full employment, while at the same time this cannot be regarded as a directlyenforceable right for the individual. Example derived from: Jacobs, 1978, p. 173.

182 Jaspers and Betten, 1988b, p. 131-133; Appendices to the reports of the Second Chamber, 1965-1966,8606 (R 533), no. 3, p. 1. For more recent statements, see also: Appendices to the reports of the SecondChamber, 2004-2005, 29 941, no. 3, p. 4; Appendices to the reports of the Second Chamber,2005-2006, 29 941, no. 6, p. 1 and 16. It should be noted though that eventually the governmentrecognized the direct applicability of one specific provision of the Charter, which dealt with the rightto collective action.

183 Jaspers and Betten, 1988a, p. 3.

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Social Charter was monitored only by a reporting procedure that did not result in anylegally binding decisions. Although in their details they worked differently, until 1985the supervisory procedures of the ESC and ICESCR procedures had one other impor-tant characteristic in common, namely that it involved supervisory organs that did notconsist of independent experts, as a consequence of which the governments were, toa large extent, acting as their own judges.179

Contrary to the rights covered by the ECHR, those of the European Social Charterwere never ‘intended to be legal rights in the sense that an individual resident of aEuropean country could invoke them in a court of law, either domestically or interna-tionally.’180 They were rather seen as obligations and undertakings of States, or ‘in-struction-norms’, the protection of which contracting parties were to ensure progres-sively.181 The Dutch government’s point of view did not deviate much from thesebeliefs.182 As the Committee on Social and Health Questions of the ParliamentaryAssembly concluded in 1985, the authors of the Charter had wanted to avoid a systemunder which contracting parties could be required by a compulsory decision to modifyits legislation or to pay compensation to a successful complainant.183 The question ofwhether this was the right approach came up for discussion again in a reform debateof the early 1990s that will be dealt with in the next chapter.

4.8 CONCLUSION

According to the official policy of the Netherlands, all human rights are indivisible,interdependent, and of equal importance. In practice, civil and political rights andeconomic and social rights were, however, not considered of equal importance. Itwould be difficult to say that the Netherlands considered economic and social rightsunimportant, but priority attention was usually given to civil and political rights.Moreover, it is important to note that, in the eyes of the Netherlands, this basic policyprinciple should not be understood to mean that the categories of civil and politicalrights and economic and social rights are of an equal character. On the contrary, theNetherlands held the view that the first group of rights were rights that could beapplied immediately and were therefore suitable for judicial or semi-judicial review,


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while the implementation of the latter was considered to take considerable time andcould not be legally granted to the individual.

This way of thinking had important implications for the Dutch attitude towardsinternational codification of economic and social rights. When the first basic humanrights treaties were drafted in the United Nations, the Netherlands sided with the groupof states that was in favour of separating these rights from civil and political rights intwo conventions with different supervisory procedures. In the context of the Councilof Europe, it approved of a similar drafting policy. Although this obviously resultedin weaker supervisory mechanisms for economic and social rights, it cannot bemaintained that the Netherlands was indifferent to their effectiveness. Its attempts toget the ICESCR’s Sessional Working Group of government representatives replacedby an independent organ demonstrate this. One could argue that, in spite of theprincipled arguments it brought to the fore, the Netherlands actually had a political-strategical interest in this, because the question of a stronger supervisory systembrought the communist bloc into a difficult position. It cannot be excluded that thisconsideration played a role. On the other hand, it must be recognized that, at the endof the day, the Dutch position was not influenced by the position of the two super-powers; it advocated reform, no matter whether it was the Soviet Union or the UnitedStates that made objections.

By making a case for the creation of a Committee on Economic, Social andCultural Rights, the Netherlands indirectly contributed to a boosting process of theICESCR, which eventually led to the debate on an Optional Protocol to the ICESCR.In some way, the Ministry of Foreign Affairs also stimulated the debate about thisProtocol through its financial contributions to two expert meetings that helped developlegal thinking about social and economic rights. It was also this Ministry in particularthat was prepared to consider the possibility of a complaints system under theICESCR. Nonetheless, there were other Ministries, in particular the Ministry of SocialAffairs and Employment, which were opposed to that idea and denied the justiciabilityof social and economic rights. Apart from legal arguments, there is one importantreason why the Netherlands found it difficult to accept a complaints mechanism underthe ICESCR that was not always mentioned explicitly. The government wanted tomaintain control over public expenditure, and like many other countries, it feared thefinancial consequences that might indirectly result from a complaints procedure. Upto now, the Dutch position in this matter has therefore been characterized by hesitationand disapproval. The NJCM, and more recently Amnesty International, tried toconvince the Netherlands’ government of the opposite position, but so far withoutsuccess.

In spite of its objections to an ICESCR Protocol, the Netherlands supported thecreation of complaints mechanisms for social and economic rights under a number ofother treaties, namely CEDAW, CERD and the ILO Conventions. In respect to theanti-discrimination Conventions of the UN, the difference in attitude can be explainedif one realizes that they deal with the protection of social and economic rights only inan indirect way. As a consequence, an escape route of lowering the standards for all



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can avoid unwanted financial consequences. However, this line of reasoning cannotexplain why the Netherlands was prepared to accept complaints mechanisms under theILO Conventions. Two possible explanations have been given instead. Perhaps theNetherlands was prepared to allow complaints about the implementation of ILOConventions because the norms were more detailed and clear. Another feature thatmight account for the difference is the fact that the ILO only allows collective com-plaints. In the next chapter, the relevance of the latter of these characteristics inparticular is further investigated.


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