The Thin Line Between Deference and Indifference: The Supreme Court of The Netherlands and the Iranian Sanctions Case

Abstract

In December 2012, the Supreme Court of The Netherlands ruled that The Netherlands had discriminated against a number of scholars with Iranian as well as Dutch nationality. They were prohibited from participating in specialised nuclear education by a regulation that was adopted by the Dutch government in order to comply with a United Nations Security Council (UNSC) resolution. One of the questions that arose during the proceedings, was the relationship between conflicting international obligations of the Dutch state, especially in view of the priority rule of Article 103 of the UN Charter. The Supreme Court of The Netherlands took a rather dualist view, considering that Dutch courts could fully review national measures implementing UNSC-imposed obligations for compatibility with fundamental rights. This view conforms to earlier jurisprudence of the European Court of Justice and the European Court of Human Rights in the Kadi and Nada cases, respectively. The main argument of the article is that the Supreme Court has too easily followed the rulings of both European courts, without developing its own, independent reasoning. This is surprising, because the approach taken by the Supreme Court would not seem to be the most obvious one, given the monist tradition of the Dutch constitutional order. In a time when the influence of international courts on the Dutch legal order is a sensitive topic of public debate, this is an unfortunate omission.