The new Dutch government
The disintegration of constitutional awareness and the safeguarding of human rights is not a new issue. Jasper Krommendijk agrees: ‘We live in uncertain times. I worry, for instance, about the new government's programme (‘Hoofdlijnenakkoord’) and its consistency with human rights and rule of law standards. Think of the plan for curbing asylum inflows: you can go to the EU and negotiate an opt-out, but that is only one part of the bigger picture. Should you manage to achieve anything at all within an EU context, you still have to deal with UN human rights treaties, the Refugee Convention, the European Convention on Human Rights and the Dutch constitution."
When such government plans are rolled out, international institutions acting as watchdogs will most likely pronounce that they violate these treaties. Krommendijk: ‘But if that does not resonate domestically and no Dutch lawyers or NGOs (non-governmental organisations, ed.) rise up to do something with it, for instance in the form of a political lobby or lawsuits, then pretty little will happen with that international criticism. A populist government will then quickly disregard those objections. The traditional top-down focus on (international) treaties, institutions, courts and monitoring bodies ignores bottom-up processes, which include activists, interest groups, affected communities and social movements. You need those forces from within society to engage with it and try to adjust. Take Hungary as an example of how things can go wrong: there is a lot of criticism from and enforcement by EU institutions (albeit perhaps too little and too late). But the media, academia and the legal profession there are pushed aside to such an extent that they cannot properly address these constitutional objections. And the areas where it went wrong in Hungary - media and science - that is also where the new Dutch government is chipping away at the money in its governmental programme."
Legalistic discussion
In the coming years, we are going to see an interplay in the Netherlands to counter plans from the new government, Krommendijk suspects. “NGOs, asylum seekers and lawyers will invoke human rights and try to get these measures annulled. That, in turn, forces the courts into the position of bogeyman, because they have to say to the government ‘that's not possible’. From a rule-of-law perspective, putting courts in this position is worrisome; it undermines our trias politica. A related concern I have - and I contribute to this as much myself - is that becomes a legalistic discussion: ‘Treaties don't allow it, the EU doesn't allow it, et cetera'. Then what matters most gets out of the picture, namely the foundational values that are protected by these legal norms and treaties such as dignity, justice and the protection of the most vulnerable in society."
These examples fuel skepticism from academics towards human rights. Krommendijk: “Human rights are sometimes seen as too top-down, too Western-imperialist and too neoliberal failing to adequately address structural inequality. Even national courts themselves sometimes criticise international courts and committees because they do not have a complete picture of what is happening or because human rights committees consist of unpaid experts who are allegedly not totally independent."
Human rights as a trump card
So criticism of the human rights system comes from all sides. "Added to this is the fact that human rights are easily invoked: there is a multiplication and proliferation of human rights. For example, in tax law context. In early June, the Dutch Supreme Court ruled that the calculation of income taxes on the basis of (virtual) assets in ‘box 3’ violates the ECHR. Should you necessarily call something like that a human right? But of course, it remains attractive to frame issues this way: labelling something as a human right is a kind of trump card you can use to defend a certain interest. There are lots of treaties and documents at all sorts of levels, so you can easily strengthen your arguments."
Despite all the above, we need not be too pessimistic about this, reasons Krommendijk: “Yes, there is a lot of pessimism, but the question is: does it negatively affect the effectiveness of human rights? At the bottom line, we are better off with human rights. In my earlier research, for example, I looked at the effectiveness of criticism from UN committees. An example I mention in my inaugural lecture is the establishment of the children's ombudsman; that happened after criticism from the UN. In the Netherlands, we look carefully at the European Court of Human Rights. Binding judicial decisions made by ‘Strasbourg’ are really carefully weighed and considered by the government and especially the judiciary. You then often see adjustment following a slap on the wrist. An example of such a change is the way criminal judges have handled requests to hear witnesses during criminal cases since early 2021 following the landmark Keskin verdict.”
