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Antoine T.J.M. Jacobs, Monism in Action. The application of the International Covenant on the Rights of the Child in the law of The Netherlands in:

Wolfgang Däubler, Reingard Zimmer (Ed.)

Arbeitsvölkerrecht, page 125 - 134

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6, https://doi.org/10.5771/9783845249216-125

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Monism in Action. The application of the International Covenant on the Rights of the Child in the law of The Netherlands Antoine T.J.M. Jacobs Introduction Klaus Lörcher has devoted much of his life to the cause of the penetration of international labour law in domestic law. This penetration is rather well ascertained in the area of the law of the European Union and the European Convention on Human Rights (ECHR), although even in this area there remains much to be desired. There are frequently doubts about the direct and horizontal effects of several norms, contained in the various EU documents such as in the Directives of the EU and in the Charter of Fundamental Rights of the EU. Moreover there are always problems with Member States not cooperating as much as obliged in this area. However, outside these jurisdictions the penetration is much more problematic. One must think especially about the Conventions of the United Nations and the International Labour Organisation and to important documents of the Council of Europe such as the (revised) European Social Charter and the European Code on Social Security. One of the reasons for the difficulties in the penetration of international law in domestic law lies in the choice which is made by national law about this penetration. The classical opposition here is the concept of monism versus dualism. Many nations, such as the UK and Germany, have opted for the concept of dualism which means that citizens in those countries can only invoke treaties and conventions insofar as these have been transposed by the legislator into Acts of Parliament. In a country that has opted for monism, however, citizens can invoke treaties and conventions, ratified by that country, even if such a document is not or not sufficiently implemented in national law. The terms of these international instruments have priority over national law, provided their nature and content are suitable for direct applicability. Examples of monist countries are the United States, France and The Netherlands. When the European Union and the European Convention of Human Rights are concerned, the difference between monist and dualist countries fades away. Even the “dualist” Member States of the EU resp. the Council of Europe must allow the rules of the EU resp. the ECHR to penetrate in their domestic legal order without applying the classic hurdles of dualism. The obligations to implement the rules of I. the EU and the ECHR are in principle the same, regardless whether a country has embraced the concept of monism or dualism. Yet, this is fundamentally different as soon as we have to do with the Conventions of the UN and the ILO and with the rules of the Council of Europe (save for the ECHR). Then the difference between the monist and the dualist countries becomes relevant. At first sight it may appear, that the monist countries are more open to the penetration of such rules than the dualist countries. However, there are two phenomenons which may at least partially blur the divides between monism and dualism, the one in a negative, the other in a positive way. In a negative way, because also in monist countries the penetration of the international rules of UN, ILO and Council of Europe (save for the ECHR) is not as easy as one could have imagined. To be applied effectively in such countries the Conventions must be self-executing and most Conventions of UN, ILO and Council of Europe are not drafted in this way but require supplementary measures or regulation for this application.1 In a more positive way the dichotomy between monist and dualism is blurred by the fact that in both monist and dualist countries courts may make direct or indirect references to international labour standards when applying national labour and social security law. They are able to do so notably in case national law allows them a margin of appreciation, using open norms like: suitable, sufficient, objectively justified, reasonable, etc.2 I would like to demonstrate the foregoing on the case of The Netherlands and more especially by focusing on a rather obscure document in the area of labour law and social security law, the UN Convention on the Right of the Child. The Netherlands as a monist country In the Netherlands, international treaties acquire legal force in domestic law only if they have been ratified, which has to be authorized by Parliament.3 The ratification is promulgated in the official journals of The Netherlands, Staatsblad and Tractatenblad. It sometimes happens that the government simultaneously with its project for the ratification tables a Bill in which the terms of national law are brought II. 1 Swepston, L., in Blanpain, R. (Ed.), Comparative Labour Law in Industrialized Market Economies, Kluwer Law International, Alphen a/d Rijn, 2010, p. 162-163. 2 Leary, V., International Labour Conventions and National Law, The Hague, 1982; Thomas/ Oelz/ Beaudonnet, The Use of International Labour Law in Domestic Courts. Theory, Recent Jurisprudence, and Practical Implications, in Les norms internationals du travail; un patrimoine pour l’avenir (ILO 2004). 3 Jacobs, A.T.J.M., De rechtstreekse werking van internationale normen in het social recht, Alphen a/d Rijn, 1985. 126 Antoine T.J.M. Jacobs into line with the international convention, which is to be ratified. However, even if national legislation has not been (sufficiently) amended, the terms of international treaties which have been duly ratified and promulgated, may have priority over national laws, according to Articles 93 and 94 of the Dutch Constitution (as amended in 1953). Art. 93 of the Dutch constitution reads: “Provisions of treaties and of decisions of international organisations, which, according to their contents, can bind everyone, have binding force after they have been promulgated”. Art. 94 of the Dutch constitution provides: “Statutory provisions in force in the Kingdom are left out of application if this application is not in conformity with provisions of treaties and of decisions of international organisations, which are binding for everyone.” Thus, the priority of ratified and promulgated conventions and treaties over national law not only applies to lower national sources, such as Ministerial circulars, municipal regulations, etc., but it also concerns Acts of Parliament. Traditionally The Netherlands embraced the UK concept of “Parliament is sovereign”. As opposed to the constitutional situation in Germany courts are not allowed to test statutes to the Constitution. Art. 120 of the Dutch constitution reads: The courts do not test the concordance of statutes and treaties with the Constitution. However, by force of Art. 93 and 94 of the Dutch Constitution the courts are allowed to test statutes to duly ratified and promulgated treaties. And, quite remarkably, not only the highest court may perform such tests, as it in German is done by the Bundesverfassungsgericht. According to Dutch constitutional law every court, even the lowest courts are competent to test Dutch law against international law. However, it is clear that once a highest court has ruled on the concordance of a law with the provisions of a ratified treaty, lower courts will follow suit. A little bit problematic here is the fact that in labour law matters the Hoge Raad (High Court/Supreme Court) is often the highest court, but in some cases the Afdeling Bestuur van de Raad van State (Administrative Law Bench of the Council of State) is the highest court. In social security matters there are even possibly three highest courts competent, viz. the Centrale Raad van Beroep (Central Appeal Court) for the majority of the items, while in a minority of the cases the Afdeling Bestuur van de Raad van State or the Hoge Raad may be the highest court. Application of monism on Dutch labour and social security law in general The Netherlands is a member of various international and supranational organizations, such as the United Nations, the International Labour Organization, the Coun- III. Monism in Action 127 cil of Europe and the European Union. It has a tradition of great loyalty as regards the ratification of international treaties containing social regulations. The vast majority of the conventions of the International Labour Organization and the ‘social’ treaties of the UN and the Council of Europe have consequently been ratified by The Netherlands. If the conformity of Dutch law with international provisions is contested afterwards, the government is prepared to restore harmony, although the debate may take some time! A good example was the wages control policy, which was pursued in The Netherlands since 1945. When in the 1970s and 1980s The Netherlands was criticized on that issue by the ILO, the wages control policy was gradually changed to bring it into line with ILO standards on free collective bargaining.4 However the tension between the Dutch statutes on disablement benefits and survival benefits with ILO-Convention 121 is already dragging on for years.5 Sometimes the Dutch courts do their bit in restoring the harmony between Dutch law and the ratified international norms. One of the most resounding examples in the field of labour law was the 1986 judgment of the Dutch Hoge Raad, revising its former doctrine, that a strike was a breach of contract and the incitation to strike consequently a tort. In its judgement the Court, referring to Art. 6 (4) of the European Social Charter of the Council of Europe, which recognised the right to strike, ruled that a strike is in principle legal, unless it is contrary to some criteria.6 Another resounding decision was a 1989 judgment of the highest court in social security matters, the Centrale Raad van Beroep, on the Dutch Widows and Orphans Benefits Act. This Act provided benefits for widows but not for widowers. As EC social security law did not prohibit such a distinction, the Centrale Raad van Beroep based its decision to open this Act also to benefits for widowers on Art. 26 of the UN Convention on Civil and Political Rights (the general equal treatment principle), which it considered as self-executing.7 Still, this development must not been overrated. There are only very few cases in which Dutch courts are overruling statutory provisions as they are in conflict with international labour and social security law outside the area of EU law and the law of the ECHR. Somewhat more numerous are cases in which certain provision of Dutch statutory law, which have an open character, are applied in such a way that they are in conformity with international law. In labour law the Dutch courts often make use of the general principle of bona fides in employment contracts (Art. 7:611 Dutch Civil Code) to apply the norms of international conventions and treaties in individual employment litigations, also in private business. 4 Boonstra, K., The ILO and The Netherlands, diss., Leiden 1996. 5 Pennings, F., De betekenis van internationale normen voor de Nederlandse sociale zekerheid, inauguratory adress, University of Tilburg, September 17, 2004. 6 Vgl. HR 30 mei 1986, NJ 1986, 688 (NS) punt 3.3. 7 CRvB, December 7, 1988, RSV 1989, 67. 128 Antoine T.J.M. Jacobs A recent case study: the application in court of the UN Convention on the Rights of the Child in labour law and social security law In this contribution I would like to turn the spotlight on a specific UN Convention, the UN Convention on the Rights of the Child, 1989, as its impact on the domestic law of the Netherlands has recently been studied by researchers of the University of Amsterdam.8 Labour law cases One of the first conclusions that one can draw from this study is, that the impact of this Convention on Dutch labour law was not noticeable. No employment case was reported! In my opinion an obvious case to test a Dutch labour law to this Convention would have been the Dutch Act on Minimum Wages. It could have been tested to Art. 32 of the UN Conventions for the Rights of the Child. Art. 32 of the UN Convention for the Rights of the Child reads: “1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.” The Dutch Act on Minimum Wages prescribes minimum wages for all employees between the ages of 15 and 65 years. However, on the basis of the Dutch Working Times Act also youngsters of 13 and 14 years of age are allowed to perform “light” jobs, provided this is done outside school hours and not during the night. Nowadays many enterprises are offering jobs to these youngsters at very low wages because the law does not provide for minimum wages for the under 15 years. Is this not a kind of “economic exploitation”? However, the lawyers of the Trade Unions, that had brought the case, did not bring up this Convention. They limited themselves to ask the courts to test the Dutch Minimum Wages Act against Art. 26 UN Convention on Civil and Political Rights, IV. 1. 8 De Graaf, J.H. e.a., De toepassing van het Internationaal Verdrag inzake de Rechten van het Kind in de Nederlandse rechtspraak, Nijmegen, 2012. Monism in Action 129 Art. 7 of the UN Convention on Economic, Social and Cultural rights and Art. 7 (1)(5) of the European Social Charter. The Dutch Supreme Court immediately threw out the complaints about the nonconcordance with art. 7 of the UN Convention on Economic, Social and Cultural rights and Art. 7 (1)(5) of the European Social Charter with the simple reasoning that these provisions have no binding effect. Only the test to Art. 26 UN Convention on Civil and Political Rights was received but dismissed because – even if there is a case of unequal treatment because of age – there are sufficient reasonable and objective reasons for it.9 Anyway, the UN Convention on the Rights of the Child so far remained without any impact on Dutch labour law. Social security law cases However, the impact of this Convention on Dutch social security law is somewhat more substantial, but still not very widespread. The right to social security is in so many words laid down in Art. 26 of the UN Convention for the Rights of the Child: “1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.” Undoubtedly due to activism by the lawyers of the parties, the ICRC has been invoked in over a hundred of court cases on social security, both in lower courts and in the highest courts. The lawyers had to overcome three hurdles. Already the first hurdle – the question whether a country has accepted an international treaty or convention by way of a formal ratification – gives some difficulty. Although the Netherlands have ratified the ICRC already in 1994, it has in this ratification made a remarkable reservation.10 It was stipulated with reference to Art. 26 ICRC that this provision does not create an independent right of children on social security (including social insurance). Courts do effectively apply this reservation as a barrier to deny claims by the children in cases in which their parents are excluded from benefits. So there is no independent right to family allowances if the parents do not have such a right.11 2. 9 HR 10 November 2006, LJN AY9216; see ILLR Vol. 27, p. 215. 10 See Stb. 1994, 862. 11 CRvB April 7, 2008, LJN BD0221; CRvB July 10, 2008, LJN BD8630;CRvB July 2010, BN2492; CRvB August 5, 2011, LJN BR4268; HR Febr. 12, 2010, LJN BI9729. 130 Antoine T.J.M. Jacobs The UN Committee on the Rights of the Child has urged the Netherlands to withdrew this reservation, but the Dutch government has not made moves in this direction. It has responded to the UN Committee that children are benefitting from the advantages that the Dutch system of social security offers to the parents. However, in a number of verdicts12 the Centrale Raad van Beroep stated that this reservation does not prevent social assistance for minors in urgent situations. The Court, invoking the direct applicability of Art. 2 (1) of the UN Convention on the Rights of the Child, overruled that way the Dutch law, but it does so only in respect to children who, although not formally allowed access to The Netherlands, nevertheless are legally residing there. The exclusion from children who are not legally residing in The Netherlands was upheld. The second hurdle for lawyers is to convince the court that the provisions of the ICRC are self-executing, that is, have direct binding effect. In the past a motive to reject the direct binding effect was, that the treaty is addressed to the state. Nowadays this hurdle, however, has become obsolescent in the Netherlands. In our field of research it was only two times invoked by the highest courts, namely with respect to Art. 713 and 28 ICRC.14 A more common argument to reject the binding effect of a Convention provision is the fact that it is insufficient precise to be applied in court cases. On this basis most of the provisions of the ICRC are denied the status of self-executing. Up until now, Art. 2 (1) of the ICRC is the only provision in the ICRC of which the direct effect has been recognised albeit only by the Centrale Raad van Beroep.15 The Afdeling Bestuursrecht van de Raad van State has rejected the direct effect of this provision.16 The Centrale Raad van Beroep dismissed the direct effect of Art. 3 ICRC17, Art. 5 ICRC18, Art. 18 ICRC19 and Art. 27 ICRC.20 It hold that these provisions contain a social aim described in general terms from which no unconditional and precisely definable subjective right in the form of an (enforceable) claim to social 12 CRvB March 29, 2005, LJNAT3468; CRvB January 24, 2006, LJN AV0197; CRvB October 6, 2009, LJN BK0734; CRvB July 20, 2010, LJN BN3318. 13 CRvB October 8, 2002, LJNBR0821. 14 CRvB February 19, 2010, LJN BL4587. 15 CRvB August 8, 2005, LJN AU0687; CRvB January 24, 2006, LJNAV0197. 16 ABRvS April 9, 2008, LJN BC9087. 17 CRvB January 2010, LJN BL1686; CRvB March 30, LJN BM1913; CrvB June 29, 2010, LJN 9795; CRvB November 2010, LJN BO3025. 18 CRvB June 12, 2007, LJN BA7026; CRvB June 29, LJN BM9795. 19 CRvB October 2010, LJN BO3580; CRvB November 2, 2010, LJN BO3025. 20 CRvB October 9, 2006, LJN AY9940; CRvB June 12, 2007, BA7026; CRvB April 7, 2008, LJN BD0221; CRvB July 10, 2008, LJN BD8630; CRvB January 26, 2010, LJN BL1686; CRvB March 30, 2010, LJN BM1913; CRvB July 14, 2010, LJN BN1274; CRvB July 23, 2010, LJN BN2492; CRvB. November 2, 2010, LJN BO3025; CRvB April 21, LJN BQ9140; CRvB August. 5, 2011, LJN BR4268. Monism in Action 131 security, welfare or care can be derived. Lower courts came to the same conclusion with regard to Art. 24 ICRC.21 According to the Afdeling Bestuur van de Raad van State Art. 9 ICRC22 and Art. 2623 too have no direct effect because these provisions cannot be used by the court to test decisions of the authorities, as they are not sufficiently concrete for such testing and therefore need implementation in national law. Up until now there are no statements of the highest Dutch courts on the direct applicability of various other provisions, such as Art. 6 ICRC. So – apart from the one abovementioned social assistance case – the Courts have not given any direct effect to the ICRC in the way of overruling explicit provisions in Dutch statutory law. There are two other cases in which the Centrale Raad van Beroep dismissed the application of a provision in the Dutch law as being a violation of Art. 8 ECHR, but in its reasoning it also referred to the rights laid down in the ICRC: 1. The AWBZ: Only insured persons are entitled to its performances. The case24 was about the question whether a under aged minor could claim the care performances of the AWBZ. 2. The AKW: Only legally residing foreigners are entitled to family allowances.25 The last case refers to an increasingly important limitation in Dutch social security law, viz. that only foreigners which are legally residing in the Netherlands are entitled to the benefits accorded in the various social security laws. This general principle is clearly laid down in several Acts of Parliament.26 Nevertheless many claimants have tried to use the ICRC to challenge that principle, but Dutch courts apart from the one case mentioned, have upheld this rule as being acceptable also in the light of international law.27 Another type of cases were about parents, who had seen their social security benefit diminished for one reason or another (for example lower social assistance because of a refusal to accept suitable work28; the obligation to repay wrongly paid social assistance29 or an advance on the disablement benefit30) and who argued that this would be to the detriment to their children. The courts rejected that argument 21 Tribunal of Zwolle-Lelystad, April 19, 2011, LJN BQ3967. 22 ABRvS April 9, 2008, LJNBC9087. As yet no CRvB decision in this material. 23 ABRvS April 9, 2008, LJNBC9087. 24 CRvB October 20, 2010, LJN BO3581. 25 CRvB July 15, 2011, LJN BR1905. 26 See Stb. 1998, 203. 27 Tribunal of Amsterdam, October 1, 2008, LJN BG6531. 28 CRvB June 29, 2010, LJN BM9795. 29 CRvB June 21, 2011, LJN BR0385. 30 CRvB June 18, 2009, LJN BI9928. 132 Antoine T.J.M. Jacobs inter alia referring to the various circumstances and facilities which – notwithstanding these deductions – ensure the minimum rights of the child. However, the courts have in a number of cases referred to the ICRC if the law gave them a certain measure of appreciation. The Dutch law in principle denies the right to social assistance to children, but it allows children an independent right to social assistance in case of “very urgent reasons”. This escape then has been invoked several times by Centrale Raad van Beroep in verdicts31 in which it explicitly referred to the ICRC. Conclusions The evaluation of the outcome of recent research on the application of the UN Convention on the Rights of the Child in the field of labour law and the law on social security have learned us, that the impact of this Convention on labour law was zero, whereas its impact on social security law was more substantial. Also a remarkable outcome of the research was that the main beneficiaries of this impact were children from foreigners, residing in The Netherlands. These conclusions may have to do with the specific subject matter of this Convention. However a more general conclusion may be, that even in a monist country like The Netherlands the penetration of international norms should not be overestimated. As most provisions of Conventions and treaties tend to be not self-executing, a Convention can only seldom set aside contrary provisions in national law. Its best fruits can be harvested in those cases in which the court have a broad margin of appreciation already under national law, which they can use for judgments in the spirit of a Convention. Finally, the study of the recent research on the application of the UN Convention on the Rights of the Child in the Dutch courts have confirmed me, that the impact of a Convention on domestic law is to a great extent dependent of the tenacity of lawyers to bring them to the attention of the courts. This justifies the increasing attention in the professional education of lawyers for international labour and social security law. All this can only please Klaus Lörcher, whose entire legal career was exactly devoted to this! V. 31 CRvB March 29, 2005, LJN AT3468; CRvB June, 14, 2005, LJN AT8038; CRvB July 5, LJN AT9963; CRvB August 8, 2005, LJN AU0687; CRvB January 24, 2006, LJN AV0197; CRvB February 13, 2007, LJN AZ8596; CRvB May, 29, 2007, LJN BA 6523; CRvB October 6, 2009, LJN BK0734; CRvB July 20, 2010, LJN BN3318. Monism in Action 133

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Zusammenfassung

Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.