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Judicial enforcement of Article 26 of the international covenant on civil and political rights in the Netherlands*

Published online by Cambridge University Press:  07 July 2009

Aalt Willem Heringa
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Extract

In December 1978 the Dutch Government ratified the International Covenant on Civil and Political Rights (ICCPR) as well as its Optional Protocol, which contains the possibility for individuals to submit complaints to the Human Rights Committee. According to Article 49 ICCPR and Article 9 Optional Protocol both documents entered into force in the Netherlands three months later, on 11 March 1979. The ratification process of the ICCPR had taken so long (the ICCPR was adopted by the UN General Assembly in 1966) because of the Dutch practice of eliminating, before the ratification of a treaty, any (possible) conflicts between national legislation and the treaty in question. This can be achieved, as has indeed been done, either by making the necessary and appropriate reservations, or by changing national law accordingly. It has always been the intention of the Dutch legislature that all foreseeable conflicts would have been eliminated by the time a treaty enters into force.

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Articles
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Netherlands Yearbook of International Law , Volume 24 , December 1993 , pp. 139 - 182
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Copyright © T.M.C. Asser Press 1993

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References

1. 999 UNTS p. 171; Trb. 1969 No. 99, 1970 No. 52 and 1975 No. 60.

2. This general principle was reiterated in a Government memorandum during the process of revising the Dutch Constitution, which took place in 1983: Notanaar aanleiding van het Eindverslag, 15 049, No. 10, Naar een algemene grondwetsherziening, part Vb, p. 99.

3. Concerning the ICCPR with regard to Arts. 10(2) and (3), 12(1), (2) and (4), 14(3)(d), (5) and (7), 19(2) and 20(1).

4. See for the text of Art. 26 ICCPR, section 3 infra.

5. Art. 9 ICESCR: ‘The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.’ The ICESCR entered into force for the Netherlands on 11 March 1976, 993 UNTS p. 3; Trb. 1969 No. 100 and 1975 No. 61.

6. Art. 93 reads as follows: ‘Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published.’ (‘een ieder verbindende bepalingen van verdragen en van besluiten van volkenrechtelijke organisaties.’)

7. Craven, M. C. R., ‘The domestic application of the international covenant on economic, social and cultural rights’, 40 NILR (1993) pp. 367–404.CrossRefGoogle Scholar

8. The case-law of the Dutch administrative courts shows that they are not willing to test administrative decisions vis-à-vis non-self-executing treaty provisions.

9. For a further explanation of the Dutch position in this respect in comparison with other States, see Craven, loc. cit. n. 7, at pp. 371–373.

10. Entry into force for the Netherlands: 22 May 1980, 359 UNTS p. 89; ETS No. 35; Trb. 1962 No. 3 and 1963 No. 90.

11. On the self-executingness of the ICESCR, see Craven, loc. cit. n. 7, at pp. 381–384 and the various criteria available at pp. 384–394.

12. Art. 6: ‘With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:

(…) and recognise:

4. the right of workers and employers to collective action in cases of conflict of interests, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.’

13. HR 30 May 1986, NJ (1986) No. 688; 18 NYIL (1987) p. 389.

14. Art. 7(a)(i) ICESCR: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(…)’

15. HR 20 April 1990, RvdW (1990) No. 88; 22 NYIL (1991) p. 376.

16. The system contained in Arts. 93 and 94 of the Dutch Constitution was introduced in the 1953 Constitution, and was retained in the most recent revision of the Constitution.

17. In this regard it is important to know that the Dutch courts are precluded from reviewing Acts of Parliament as to their conformity with the Constitution (Art. 120 Dutch Constitution). Claims with respect to the invalidity of Acts of Parliament therefore have to be based upon selfexecuting provisions of treaties; in the context of this article, the equality clause of Art. 26 ICCPR.

18. See on the relationship between international human rights law and municipal law in the Netherlands: Drzemczewski, A.Z., European Human Rights Convention in Domestic Law (1985) pp. 86–92Google Scholar; Alkema, E.A., ‘The Application of Internationally Guaranteed Human Rights in the Municipal Order’, in Kalshoven, F., Kuyper, P.J. and Lammers, J.G., eds., Essays on the Development of the International Legal Order (1980) pp. 181–198Google Scholar; Polakiewicz, J. and Jacob-Foltzer, V., ‘The European Human Rights Convention in Domestic Law; The Impact of Strasbourg Case-Law in States where Direct Effect is Given to the Convention’, HRLJ (1991) pp. 128–130Google Scholar; Heringa, A.W., ‘Article 26 ICCPR and Social Security. Recent Dutch Cases Invalidating Discriminatory Social Security Laws, 6 NQHR (1988) p. 1Google Scholar. And about the relationship between international law and municipal law in the Netherlands: H.G. Schermers, ‘Netherlands’, Ch. 6 in Jacobs, F.G. and Roberts, S., eds., The Effect of Treaties in Domestic Law (1987).Google Scholar

With regard to the European Human Rights Convention in particular, the Dutch courts have set aside many Acts of Parliament and have extensively used the possibility of interpreting municipal law as being in conformity with it; see in this respect Myjer, E., ‘Dutch Interpretation of the European Convention: A Double System?’, in Matscher, F. and Petzold, H., eds., Protecting Human Rights: The European Dimension, Studies in Honour of Gérard J. Wiarda (1988)Google Scholar. An assessment of the impact of 40 years of the European Convention on the Dutch legal order is to be found in Heringa, A.W., Schokkenbroek, J.G.C. and van der Velde, J., eds., 40 jaar Europees Verdrag voor de rechten van de mens (1990).Google Scholar

On a yearly basis hundreds of cases, dealing mainly with human rights treaties, such as the European Convention and the ICCPR, are decided. Summaries of these decisions are published in NJCM-Bulletin (the Dutch legal review on human rights); an updated compilation of all these summaries is due to be published in 1993.

To date, the Dutch courts have never invalidated a constitutional provision, although on one occasion the Supreme Court was asked to do so: HR 19 January 1962, NJ (1962) No. 107; AB (1962) No. 131; the relevant constitutional provision was abrogated in 1983.

19. On the impact of the ICCPR on the Dutch legal order, see Heringa, A.W., ‘Het internationale verdrag inzake burgerlijke en politieke rechten en de Nederlandse rechtsorde’, in van Dijk, P., ed., Het internationale verdrag intake burgerlijke en politieke rechten en zijn betekenis voor Nederland (1987) pp. 103–136.Google Scholar

20. HR 24 February 1960, NJ (1960) No. 483, AOW I; confirmed in HR 18 February 1986, NJ (1987) No. 62.

21. HR 18 February 1986, NJ (1987) No. 62 (14(5)); HR 4 May 1984, NJ (1985) No. 510 (23(4)).

22. For instance, very explicitly by reproaching a lower court which had refused to acknowledge the self-executing character of Art. 26 ICCPR: HR 2 February 1982, NJ (1982) No. 424.

23. See for further details the literature mentioned in n. 18 supra.

24. See Nowak, M., Commentary on the International Covenant on Civil and Political Rights (1989)Google Scholar A recent comparative analysis of international equality guarantees is given by Bayefski, A. F., ‘The Principle of Equality or Non-Discrimination in International Law’, 11 HRLJ (1990) pp. 1–34Google Scholar; Bossuyt, M.J., ‘The Principle of Equality in Article 26 of the International Covenant on Civil and Political Rights’, in de Mestral, A. et al. , eds., The Limitation of Human Rights in Comparative Constitutional Law (1986)Google Scholar, describes Art. 26 in the light of its history.

25. Adopted on 9 November 1989; CCPR/C/21/Rev. I/Add. 1.

26. No. 191/1985, A/43/40 (1988) p. 211.

27. No. 196/1985, A/44/40 (1989) p. 189.

28. No. 273/1989, A/44/40 (1989) p. 286.

29. Bayefski, loc. cit. n. 24, pp. 1–34, especially p. 17.

30. Jhabvala, F., ‘Domestic Implementation of the Covenant on Civil and Political Rights’, 32 NILR (1985) pp. 461–486.CrossRefGoogle Scholar

31. Schachter, O., ‘The Obligation to Implement the Covenant in Domestic Law’, in Henkin, L., ed., The International Bill of Rights (1981) pp. 323–324.Google Scholar

32. See also Verschueren, H., ‘Hetniet-discriminatiebeginselvan artikel 26 Internationaal Verdrag inzake burgerrechtenen politieke rechten en de rechtspositie van vreemdelingen’, RW (1988-1989) pp. 689–696, at p. 692.Google Scholar

33. See also J.P. Humphrey, Letter to the editor in HRQ (1984) pp. 539–540 (with a reaction by Jhabvala in HRQ (1985) pp. 242–244); Robertson, A.H., Human Rights in the World (1982) pp. 35 and 138Google Scholar; Schwelb, E., ‘The Nature of the Obligations of the State Parties to the International Covenant on Civil and Political Rights’, in Liber Amicorum René Cassin (1969) p. 301.Google Scholar

34. For instance: de Zayas, A., Möller, J.T. and Opsahl, T., ‘Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee’, 28 GYIL (1985) pp. 9–64Google Scholar, remark that although the Human Rights Committee is not a court or a quasi-court like the two organs under the European Convention on Human Rights, it nevertheless exercises functions that are comparable to those of the European Commission on Human Rights. And McGoldrick, D., The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights (1991)Google Scholar, says: “The HRC's views follow a judicial pattern and are effectively decisions on the merits’ (p. 151). ‘Many of the HRC's views contain substantive interpretations of the provisions of the Covenant and the OP. The views then state whether in the HRC's view the facts as found disclose violations of the Covenant and why … The views do not end with the HRC's findings on the question of violations. Each view continues with a statement of the HRC on the “obligation” of the State party in the light of the HRC's findings’, such as ‘To take immediate steps to ensure strict observance of the provisions of the Covenant’ or ‘To provide compensation’ (pp. 152–153).

35. Tomuschat, C., ‘National Implementation of International Standards on Human Rights,’ CHRYB (1984/1985) pp. 31–61, at p. 42.Google Scholar

36. Broeks v. The Netherlands, HRC 1987, No. 172/1984; an almost identical decision was taken by the Human Rights Committee on the same day in the case of Zwaan-de Vries v. The Netherlands, No. 182/1984.

37. EurGRZ (1988) p. 37: ‘kühnen Deutung des Art. 26’.

38. Bossuyt, loc. cit. n. 24, pp. 270–288, at p. 287.

39. E.g., HRC 1992, No. 415/1990, EuGRZ (1992) pp. 344–347, with a comment by M. Nowak (on a distinction in Austrian law between widows and widowers in the relevant pen-sions law). In this decision the Committee notes that Art. 26 does not make a pensions law for widows/widowers compulsory, but that, if such a law exists, it should not then discriminate. A claim, primarily based on Art. 6 ICESCR (the right to work) was declared inadmissible. In this case the discrimination aspect was only of secondary importance (if at all): HRC 1985, No. 178/1984, EuGRZ (1985) pp. 532–533.

40. General Comment, supra, n. 28.

41. ECHR 28 October 1987, Inze v. Austria, Series A, Vol. 126, para. 41.

42. An excellent survey is given by Prechal, S. and Burrows, N., Gender Discrimination Law of the European Community (1990).Google Scholar

43. Art. 119 EEC Treaty: ‘Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.’

44. Art. 235 EEC Treaty: ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures.’

45. Case 6/64 Costa v. ENEL [1964] ECR 585, Jur. 1207.

46. Case 43/75 Defrenne v. Sabena [1976] ECR 455, Jur. 455.

47. Quotation from case C-188/89 Foster et al. v. British Gas [1990] ECR 1–3313. Also case 8/81 Becker [1982] ECR 53; case 152/84, Marshall [1986] ECR 723.

48. By horizontal relations is meant the legal relationships between private (legal) persons, not being a government agency. So, for instance, an EEC directive cannot be invoked by an employee against his employer, except in those cases in which the employer is the ‘government’ (a public law authority).

49. Case 71/85 Netherlands v. FNV [1986] ECR 3855, at p. 3870. See also case 286/85 McDermott and Cotter v. Minister for Social Welfare [1987] ECR 1453.

50. The constitutional provision of equality as laid down in Art. 1 Dutch Constitution was in most cases of no direct relevance because the claims were mainly directed against an Act of Parliament, and, as we have seen, the courts are precluded from passing judgement upon the constitutionality of these Acts. See n. 17 supra.

51. The European Commission for Human Rights therefore declared a claim, pertinent to the discriminatory nature of the Dutch General Disabilities Act, to be inadmissible: 10 July 1985, Appl. No. 10971/84, Vos v. The Netherlands (RSV (1990) No. 171). The Human Rights Committee found that the treatment complained of did not constitute prohibited discrimination within the meaning of Art. 26 ICCPR: HRC 1989, No. 21896, Vos v. The Netherlands, RSV (1990) No. 172.

52. Myjer, loc. cit. n. 18, pp. 421–430.

53. On this case-law see: Brenninkmeijer, A.F.M. ‘De doorwerking van het internationalerecht, in het bijzonder het gelijkheidsbeginsel, op het gebied van het bestuursrecht’, 7 NTB (1990) pp. 209–216Google Scholar; Riphagen, J. and Smitskam, C.J., ‘De betekenisvan artikel 26 IVBPR voor de sociale verzekeringsrechtspraak’, 15 NJCM-Bulletin (1990) pp. 401–428Google Scholar; Heringa, loc. cit. n. 18.

54. CRvB 1 November 1983, RSV (1984) Nos. 147/148/149/150; 9 NJCM-Bulletin (1984) p. 22; 16 NYIL (1985) p. 501.

55. See section 3.3 and n. 36 supra.

56. It is very well possible that this decision was not yet based upon the decision of the Human Rights Committee, since the Committee's decision dates from March 1987 and the new court decision from May 1987.

57. CRvB 14 May 1987, 12 NJCM-Bulletin (1987) p. 405; RSV (1987) No. 246; 3 Nemesis (1987) p. 6; AB (1987) No. 543; 19 NYIL (1988) p. 430. Also CRvB 20 April 1989, RSV (1989) No. 271. More recent decisions in this area of special ‘war-related’ allowances confirming the line chosen and the linkage to the date of 23 December 1984 are the following: CRvB 9 January 1992, AB (1992) Nos. 344 and 345; and CRvB 12 March 1992, AB (1992) No. 386.

58. CRvB 5 January 1988, 13 NJCM-Bulletin (1988) p. 98; RSV (1988) Nos. 104, 198, 199, 200; AB (1988) Nos. 252, 253, 254. See also CRvB 23 May 1991, RSV (1991) No. 255.

59. CRvB 23 May 1991, RSV (1991) No. 255.

60. CRvB 7 December 1988, RSV (1989) No. 67; AB (1989) No. 10; 21 NYIL (1990) p. 394, fn. 33. Because this case concerned a man who had become a widower in 1986, it was not yet clear whether in these cases Art. 26 ICCPR also referred to December 1984. It could also be asked whether this act discriminates against men or against women. It was a man who claimed that he was unjustly discriminated against, but it could also be argued that women were unfavourably treated because they could not provide for an allowance for their remaining husband.

61. See also CRvB 30 January 1991, RSV (1991) No. 182; AB (1991) No. 264, also with regard to the same Widows and Orphans Act. In this decision the court explicitly refers to the date of December 1984. Also: CRvB 8 November 1991, RSV (1992) No. 163. The court stuck to its decision with regard to other discriminatory pension acts: CRvB 9 January 1992, TAR (1992) No. 58; AB (1992) No. 224 (the Civil Servants Pensions Act) and CRvB 9 January 1992, TAR (1992) No. 59; AB (1992) No. 224 (the Railway Pensions Act).

62. CRvB 5 October 1989, RSV (1990) No. 132. According to the court the direct effect of Art. 26 ICCPR is no longer to suspend because of the fact that the question of (widows) pensions is not regulated in EEC Directive 79/7. Art. 26 and this directive are not mutually dependent.

63. E.g., in the following cases: CRvB 10 May 1989, RSV (1990) No. 230 (Unemployment Act); CRvB 25 May 1989, RSV (1989) No. 275 (Unemployment Act); CRvB 8 November 1991, RSV (1992) No. 163; 10 AA (1992) pp. 621–627 (claim for pension compensation, payable at the age of 65 for women/widows, dismissed because the widower had become 65 in 1983, i.e., before the crucial date of December 1984).

64. For instance, in 1990 the court was confronted with a Royal Decree (implementing the General Disabilities Act) that discriminated against women (CRvB 21 December 1990, RSV (1991) No. 160). In this instance the court could also rely upon Art. 1 of the Constitution (the Constitution allows the courts to review the conformity of Royal Decrees with the Constitution). Because Art. 1 of the Constitution had entered into force on 17 February 1983, the Court imposed the notion of equality in the relevant Decree from that date. In another decision, which I will discuss in the following section, the Court chose the date of 1 January 1985 as the moment at which equal treatment had to be realised. (In this case with regard to the equal treatment of marriage and cohabitation) (CRvB 13 November 1986, AB (1987) No. 456).

65. In 1990 the Court dismissed a claim based on age discrimination: CRvB 12 December 1990, RSV (1991) No. 264.

66. CRvB 13 November 1986, AB (1987) No. 456.

67. CRvB 28 September 1989, 15 NJCM-Bulletin (1990) p. 158; RSV (1990) No. 235 (see also RSV (1990) No. 236).

68. HRC 16 April 1987, No. 180/1984, Darning v. The Netherlands, RSV (1988) No. 201.

69. CRvB 28 February 1990, 15 NJCM-Bulletin (1990) p. 576; RSV (1990) No. 295; AB (1990) No. 233; and recently: CRvB 29 January 1992, RSV (1992) No. 167. See also CRvB 9 May 1990, RSV (1990) No. 383; AB (1991) No. 40 (RSV-Kort; AWW 1989/28); CRvB 23 May 1991, RSV (1991) No. 257 and CRvB 16 October 1991, RSV (1992) No. 138. In CRvB 5 June 1991, RSV (1992) No. 18 the Court stuck to its reasoning also with regard to cohabitants of the same sex. Likewise with regard to other social security acts the court refused to honour claims containing the notion of equality of marriage and cohabitation: CRvB 10 July 1991, RSV (1991) Nos. 21 and 76 (Old Age Pensions Act); CRvB 26 November 1991, RSV (1992) No. 144 (General Disability Act).

70. Art. 5 (2): ‘There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.’

71. An interesting analysis about the interaction between the courts and the legislature is given by Bakker, R.E., ‘De wisselwerking tussen rechter, Raad van State en wetgever op het terrein van de sociale zekerheid’, 5 Regelmaat (1990) pp. 32–39.Google Scholar

72. Bijl. Hand. II 1987/1988 – 20453 Nos. 1 and 2 (22 February 1988).

73. Bijl. Hand. II 1987/88 – 20453 No. 3 (16 March 1988).

74. See supra, n. 49.

75. CCPR/C/SR.325, para. 50, p. 11. The same was written by the Dutch Government in the Explanatory Memorandum when submitting the ICCPR to Parliament: Bijl. Hand. II 1975/75 – 13 932 (R 1037), No. 3.

76. Bijl. Hand. II 1987/88 – 20 453, No. 6; 20 NYIL (1989) p. 173.

77. HR 12 October 1984, AB (1985) No. 319; NJ (1985) No. 230; 10 NJCM-Bulletin (1985) p. 32; 17 NYIL (1986) p. 251.

78. There is a resemblance between the Supreme Court's case and the HRC case of S. Ameerudify-Cziffra et al. v. Mauritius, 9 April 1981, R. 9/35. In this case the Committee ruled: ‘… the protection of a family cannot vary with the sex of the one or other spouse. Though it might be justified for Mauritius to restrict the access of aliens to their territory and to expel them therefrom for security reasons, the Committee is of the view that the legislation which only subjects foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, is discriminatory with respect to Mauritian women and cannot be justified by security requirements.’ See also the European Court of Human Rights, 28 May 1985, CEDH Séries A, vol. 94, Abdulaziz, Cabales and Balkandali v. The United Kingdom.

79. HR 23 September 1988, NJ (1989) No. 740.

80. HR 27 September 1989, 15 NJCM-Bulletin (1990) p. 154.

81. The situation was further complicated by a change to the relevant statutory provision stating that the income of the lower-earning spouse could be added to that of the higher-earning spouse. This amounted to an indirect distinction because of the factual situation that in practice in the Netherlands women generally earn less than their partners because, for example, there are more women employed on a part-time basis and because there are more women engaged in lower paid emploment.

82. HR 31 January 1990, RvdW (1990) No. 61.

83. Not because the Supreme Court found that fiscal matters were covered by the notion of civil rights and obligations under Art. 6, but because the same lacuna also applied in those cases where the inspector had imposed a tax increase, which could be considered to be a criminal matter within in the meaning of Art. 6.

84. Another instance related to the Bankruptcy Act. According to this act, there is no obligation for the trustee to consult the bankrupt on decisions taken by him/her and it was claimed that this omission violated Article 6 ECHR. The Supreme Court did not adjudicate on this matter and ruled that finding a solution thereto was outside the scope of die law-making function of the courts, and that the matter had to be addressed by the legislature. A few months later the Supreme Court (in a tax case) refused to overrule its previous case-law on an aspect relating to admissibility, because this same aspecthad already been included in a bill before Parliament; and, furthermore, the Supreme Court considered it unwise to influence the debates between Parliament and the Government on this bill (HR 28 November 1990, BNB (1991) No. 75).

85. Other examples are the following: HR 16 November 1990, NJ (1991) No. 475 (the Civil Code denies the mother of a child the possibility to deny, during the marriage, the paternity of her husband, whereas the father (also during die marriage) can do so. This inequality violates Art. 14 jo. Art. 8 ECHR. However, any solution falls outside the law-creating function of the courts); HR 21 December 1990, NJ (1991) No. 741 (die courts need not go into die question whether a particular statutory provision violates a treaty, when it can reasonably be assumed diat the desired result can also be reached by means afforded by national law); HR 3 April 1992, RvdW (1992) No. 101 (the Civil Code does not consider the possibility that a mother can request the Registrar of Births, Deaths and Marriages to draw up a deed of acknowledgementof an illegitimate child, widiout die permission of the father. The removal of this disadvantageous treatment of the child, compared to legitimate and acknowledged children (Art. 14 ECHR, Art. 26 ICCPR) fell outside die law-creating function of the courts and, moreover, a bill, pertinent to this aspect, is currently before Parliament).

86. Published in 17 NJCM-Bulletin (1992) pp. 243–260, at p. 256.

87. CRvB 9 January 1992, TAR (1992) No. 58; AB (1992) No. 224; CRvB 9 January 1992, TAR (1992) No. 59; AB (1992) No. 225.

88. E.g., case 80/87 Dik et al. v. College v. B. en W. [1988] ECR 1601, RSV (1988) No. 183. This decision by the European Court was immediately followed by the Central Appeals Court: CRvB 10 May 1989, RSV (1990) No. 231, implying the full and complete effect of EEC Directive 79/7 as from 23 December 1984.

89. CRvB 29 January 1992, RSV (1992) No. 167.

90. Brouwer, J.G., Verdragsrecht in Nederland (1992) p. 290Google Scholar, calls this the concrete method. According to this method of interpretation, the competent court not only attempts to interpret the treaty provision as such, but also tries to take into account specific factual circumstances which might hinder the application of the invoked treaty provision. As I have demonstrated in this article, this approach was adopted by the Supreme Court and the Social Security Court with regard to Art. 26 ICCPR, by also taking into account, for instance, what action has (or will) be taken by the legislature. This approach in practice means that a treaty provision such as Art. 26 can be invoked and enforced in some cases and not in others. This certainly enhances flexibility in the application of international law, but is to be regretted from the point of legal certainty. The apparent strict distinction between self-executing treaty provisions and international law that is not (yet) considered to be self-executing has certainly been mitigated by legal practice, which has accepted that the latter can be used as a source of interpretation. In some cases the courts have referred to international law while interpretating national law. In 1990 the Supreme Court (HR16 November 1990, NJ (1992) No. 107; 38 NILR (1991) p. 413; 24 NYIL (1993) p. 395) stated that the Dutch courts have an obligation to interpret Dutch law in such a way that the Netherlands is able to fulfil its treaty obligations. In my opinion it can certainly be argued that the concept of self-executing treaty provisions is too narrow a concept by which to fully understand the Dutch case-law, because, as we have seen, the courts, on the one hand, do not only restrict the relevance of international law to these provisions, and, on the other, they sometimes abstain from enforcing them.

91. See on this topic Polak, J.M. and Polak, M.V., ‘Faux Pas ou Pas de Deux? Recent Developments in the Relationship between the Legislature and the Judiciary in the Netherlands’, 33 NILR (1986) pp. 371–411.CrossRefGoogle Scholar

92. See for example 20 AJCL (1972) on ‘The Admonitory Functions of Constitutional Courts’, with a contribution by W. Rupp-v. Brünneck on the German Federal Constitutional Court, pp. 387–403; and by H.A. Linde on the United States' experiences, pp. 415–430.

93. In HR 14 April 1989, NJ (1989) No. 469 the Supreme Court refused to annul an act of Parliament which violated the general principle of legal certainty. Although the court considered that this act did indeed violate this general principle, it also stated that the prohibition on testing the validity of statutes is essential in the present Dutch constitutional order. The only aspect of this ‘interdiction which the Supreme Court has so far accepted concerns a statute that unforeseenly violates a general principle. In such a case a court is authorised not to apply the relevant statutory provision.

In 1991 the Supreme Court advised the Government as to the desirability of introducing a system of constitutional review. (This advice was published in 17 NJCM-Bulletin (1992) pp. 243–259). In its advice the Supreme Court supports its introduction, although in most circumstances only in relation to fundamental constitutionalrights and freedoms. The Supreme Court considers this proposal to be in line with the legal develoments that have taken place, mainly with regard to treaty provisions.