The rulings of international courts
A case study into the effects of international courts on the Dutch democracy: the implementation of the right to a fair trial in the Dutch constitution
Julia de Weijer: 10787496 jlsdeweijer@gmail.com
Bachelor thesis Political Science University of Amsterdam
First reader: dr. P.A. Raekstad Second reader: dr. M.J.M. Maussen 25-01-2018, 8167 words
Index
Abbreviations 3 Abstract 4 Introduction 5 Theoretical framework 7 Democratic state 7Democratic state in theory 7
Dutch democratic state 8
Sovereignty 9
Sovereignty and international organizations 10
Lawmaking by judges 12
The Netherlands in the international community 13
Methodology 15
Analysis 17
The case of the implementation of the right to a fair trial in the Dutch constitution 17
Introduction 17
Analysis 19
Conclusion 26
Abbreviations
ECHR: European Convention on Human Rights ECJ: European Court of Justice
EU: European Union
Abstract
The main occupation of international courts is to decide about the cases that are brought to the court. Judges from the court rule about this and important rulings can become case law. Case law expands the reach of the treaty and the specific article that the ruling was about. Although case law is not binding, it can be used in other rulings. Because of this, every member of the treaty who is subject to the rulings of those courts, will be influenced by this. This influence can be seen when studying the implementation of the right to a fair trial in the Dutch constitution. The development of this right in the European Convention on Human Rights (article 6), led to the conclusion by the Staatscommissie that the right to a fair trial is an important human right. Because of this, and the uncertainty Dutch politicians feel about international law, a Dutch right to a fair trial was created.
All in all, the influence of international courts can be summarized as follows. International courts raise awareness over certain subjects. They explain and expand the reach of international law. Because of this influence, the Dutch politics decided to take action and to (in this case) not to be dependent on international law.
Introduction
The everyday life of the Dutch citizen is influenced by decisions made by politicians and judges. Until the last century, national politicians and judges were the most powerful. But, because of the growing amount of international organizations and the corresponding international law, many decisions are transferred to the international level. The growing influence of international (case) law needs to be studied.
Some worry about the democratic deficit in the European Union. European laws are being made by politicians and government officials who are not directly elected by the people (Vanheste 2014). This can also be said about international law in general. But, something important is overlooked here. These international organizations have, besides the important international law, courts who oversee the process of implementing and maintaining of the treaties. These judges create rulings about those processes, which affects the national democratic state in an important way.
In this thesis, those rulings by international judges will be studied. Specifically, the effect of those rulings on the Dutch democratic state will be studied. This leads to the following research question: “In what ways do international courts affect the Dutch democracy and what does this mean for the democratic state?”.
This thesis will consist of the following. In the theoretical framework, the main concepts will be explained. First, the democratic state will be explained. Second, the Dutch democratic state will be briefly explained. After that, the concept of sovereignty will be further explored. At last, an overview of The Netherlands in the international community will be given. In the analysis, there will be a case study presented regarding article 6 of the ECHR. From the analysis in the thesis, it became clear that the influence of international courts initiated the process to implement the right to a fair trial in the Dutch democracy. The extended reach of the international courts created the incentive for the Dutch politics and government to act and to create a more comprehensive constitution and to not be dependent on international law.
An important remark about this thesis is that it is not the purpose of this thesis to give a normative judgment about whether the influence of international law and international
courts is a (dis)advantage to the democratic state. The purpose of this thesis is solely to study the effects international law and courts can have on the democratic state.
Theoretical framework
In this theoretical framework, the Dutch model of the democratic state will be studied. This will be done with the help of some fundamental democratic theories. The concept of sovereignty will also be studied. After that, the position of the judge will be explored. At last, the positions of the Netherlands in the international community will be explained. These subjects will be used later on in the analysis.
Democratic state
Democratic state in theory
What is the democratic state? There are many varieties, but in the Dutch democratic state, there is a representative democracy. This will be the focus of this theoretical framework. A representative democracy means that citizens choose representatives to represent them in politics. These representatives are part of mass parties (Manin 1997: 196-197). In the Netherlands, the representative democracy takes the form of a party democracy, where citizens choose representatives from political parties. But, according to Manin, people mainly vote for the party, rather than the candidate. (Manin 1997: 206, 208, 210). The governing authority is the majority party, or, as in the case of the Dutch democratic state, the coalition (Manin 1997: 216).
According to Dahl (2015), there are several institutions a large-scale democracy requires. First, elected officials. Second, free, fair and frequent elections. Third, freedom of expression. Fourth, alternative sources of information. Fifth, associational autonomy. Lastly, inclusive citizenship. (Dahl 2015: 85). It is important to explore the first institution (elected officials) further. According to Dahl, these elected officials are in modern, large-scale democratic governments, representatives. This means that they are chosen by the people. They are chosen in free, fair and frequent elections (idem: 85). Dahl also gives a useful set of criteria for the democratic process. There are five standards that will ensure equal participation of all members. First of all, effective participation. Secondly, voting equality. Thirdly, enlightened understanding. Fourth, control of the agenda. At last, inclusion of adults (idem: 37-38).
Another important characteristic of the democratic state is the trias politica. The trias politica as created by Montesquieu has the goal to prevent abuse of power. He created a system in which the body of the state would consist of three strictly separated powers: the legislative, executive and juridical power. Separating these powers would create a system of checks and balances, which would prevent abuse of power. The system of Montesquieu has had an enormous effect on the design of the modern state. In many democratic states, some separation of powers according to the trias politica can be found (De Blois 2014: 63-64). This separation of powers will be important later on in this theoretical framework.
Dutch democratic state
The Dutch democratic state is a representative democracy. The main institutions of the Dutch political systems are the First and Second Chamber, the cabinet, the council of ministers and the government. (Heringa et al., 2015: 41, 125-126).
The parliament (First and Second Chamber together) and the government together form the legislative body of the Netherlands. The cabinet consists of all ministers and staatsssecretarissen. The council of ministers consists of all ministers. (Heringa et al., 2015: 138). The coalition government, which Manin refers to (Manin 1997: 216) is formed by several parties. The biggest party in the coalition normally delivers the prime-minister. The other ministers come from all the parties in the coalition (Heringa et al., 2015: 41, 125-126).
The members of the Second Chamber are directly chosen by the Dutch citizens above the age of eighteen (Dutch Constitution, article 54). They are chosen by frequent elections, which can be applied do Dahls’ criteria of democratic elections, as previously stated. Whether these are free and fair are not the topic of this thesis. Regular elections are hold every four year (Dutch Constitution, article 52). Some Dutch citizens are excluded from voting, but this rarely happens. Exclusion from voting happens when a judge has explicitly said so. This can only happen when a Dutch citizen has committed a crime against the state, the Crown or because he has rigged votes. (Heringa et al., 2015: 138).
The executive body of the Netherlands is formed by the ministers and the government (Heringa et al., 2015: 127). The juridical body of the Netherlands is formed by the judges and the courts (idem: 128).
As has become clear from above, the Dutch system has a certain separation of powers according to Montesquieu’s thoughts. Although, the separation is not entirely strict. The ministers take part in both the executive and the legislative power. Besides this, judges take part in both the juridical and the legislative body, although not officially. (De Blois 2014: 63-64). This will be explained later on.
Sovereignty
Sovereignty is an important concept to use while studying the democratic state. First, the concept of sovereignty will be studied. After that, the concept will be studied in the context of international organizations.
The common definition of sovereignty is supreme authority within a territory (Philpott 2016) or “the ultimate and supreme power of decision” (Sarooshi 2005: 4). But, the definition of sovereignty is contested and scholars have yet not come to a common understanding of the concept (Sarooshi 2005: 4-5). As has become clear from Philpott’s definition (2016), two important characteristics of sovereignty are at first supreme authority and second, within a territory. Sarooshi adds that the nation-state is a reference point (Sarooshi 2005: 6). This is important for the analysis, since the Netherlands will be used as a unit.
Sovereignty derives authority from a common source of legitimacy. This can be any source of law: Philpott indicates both national and international law (Philpott 2016). Law can be used to formalize, for example, institutions and territorial borders. By creating a formal set of rules by using law, the reach of the national sovereignty will become clear. An example of this formalization is the juridical understanding of territorial borders. These borders create a separation between nation-states and their internal and external matters. (Barkin and Cronin 1994: 111). By establishing institutions, the state gains power over the population (idem: 112).
In the Netherlands, the Constitution determines the hierarchy of national and international law (chapter five, paragraph 2) (Heringa et al. 2015: 82-83). According to articles 93 and 94, the Netherlands has a monist system, which means that most international law works directly in the Dutch legal order. International law must be ieder verbindend, to have a direct effect. Ieder verbindend can be roughly translated in ‘binding for everybody’. If a Dutch law is in conflict with international law, the Dutch law must be ignored (idem: 82-88). This
means that international law is more dominant than Dutch law. Therefore, we cannot longer speak of the sovereignty of Dutch law.
The definition of sovereignty as stated above, mentioned territory as an important characteristic. Defining the Dutch territory can be problematic. Territory as described in the theoretical framework is seen as a certain amount of land with juridical borders. The Netherlands has those official borders, so there is still such a thing as Dutch territory. But, international agreements have made those borders less strict than they used to be. Because of the ‘Schengen acquis’, there are no border controls within the Schengen area (Rijksoverheid). This means there still is national sovereignty over the territory, but that the power over the borders is shared with the countries part of the Schengen acquis.
It is also important to look at the power of national judges. The growing use of international law also has implications for the sovereignty of the national judges. They have lost a part of their power to international courts. It is not the goal of this thesis to explore whether this is a negative or positive consequence. The goal is merely to explore what kind of implications this has for the democratic state. This will be studied later on in this theoretical framework.
Another important part of the sovereignty within the democratic state is the interaction between politicians and judges. According to Montesquieu’s trias politica, the primacy of lawmaking was with the legislative body. In the Dutch democracy, the legislative body consists of the parliament (Second and First Chamber) and the government. Lawmaking by judges, who are part of another power in the trias politica, interferes with this sovereignty. This will be further explained in this theoretical framework.
Sovereignty and international organizations
According to Barkin and Cronin (1994), sovereignty is a social construct. All social phenomena are subject to change (Barkin and Cronin 1994: 109). With the currently developing world order, this means that the concept of sovereignty no longer applies to the current situation. The concept of sovereignty has changed, due to the growing influence of international organizations.
As stated in the paragraph above, law could be used to establish sovereignty. The concept of sovereignty has changed: not only national law matters, but international law is of a growing importance too. Thus, the concept of sovereignty has expanded.
But what law has become important? In the current era, we can both point to national and international law. In the paragraph of lawmaking by judges which will follow, the position of Dutch national law in relation with international law will be explained.
The concept of sovereignty changed when supranational international organizations were created. First, the concept of sovereignty was focused on the nation state. But, due to the growing power of international organizations, the concept of sovereignty has expanded. Previously, only national law was considered to be part of the state. Now, due to the growing influence of international law, it has become part of the concept. The shifting power from states to international organizations means, for some, a decline of the sovereignty of the state, as posed in De Brabandere’s article (2013). National politicians lose some of their power to international organizations. But, this does not have to be true (Sarooshi 2005: 3). That transfer of power is unavoidable when joining an international organization and adhering to the international court, but might also have positive consequences instead of only leading to the deterioration of the state’s sovereignty (Sarooshi 2005: 3-6). But: only adhering to the treaties does not lead to loss of sovereignty. Subjecting to the binding rulings by the courts, who form a higher power, does create the loss of sovereignty (Moravcsik 2000: 220, 222-223).
One of the benefits of transferring power to an international organization becomes clear when looking at the development of the European Union. By adhering to the treaty that belongs to the organization, national law becomes more comprehensive (Craig 2017: 20). This means that national law becomes more inclusive: all of the important rights have become part of the national law. Besides this, a common position on foreign matters could strengthen the position of a state (Craig 2017: 20).
According to Benvenisti (2008), international law has become an important instrument to strengthen the national democracy (Benvenisti 2008: 241). Moravcsik (2000) further explores the benefits of adhering to supranational organizations such as the European Union and the Council of Europe. Governments do this “when an international commitment effectively enforces the policy preferences of a particular point in time against future domestic political alternatives” (Moravcsik 2000: 220).
As stated above, supreme authority is a characteristic of sovereignty. Taking part in the ECHR and adhering to the European Court on Human Rights means that the sovereignty of states will decrease, but according to Moravcsik this outweighs the any future political uncertainty (Moravcsik 2000: 220). A prominent ideational explanation for the rise of the mentioned human rights regimes is that “governments accept binding international human rights norms because they are swayed by the overpowering ideological and normative appeal of the values that underlie them” (idem: 222-223). According to liberal constructivists, supporting international human rights protect the domestic democracy (idem: 223). There is an understanding of supreme human rights, that governments are unable to escape. (idem: 220, 222-223).
Lawmaking by judges
What is the position of the judge in the Dutch democratic state? As mentioned before, the judges form the juridical power from Montesquieu’s trias politica. There are three different levels of courts in the Netherlands: the rechtbank, het gerechtshof and the Hoge Raad. Firstly, the case is treated by the rechtbank. The appeal goes to the gerechtshof. Finally, the case can be treated by the highest court: the Hoge Raad. One of the main characteristic features is, is that there is such a thing as the toetsingsverbod (article 120 of the Constitution). Dutch judges cannot test laws made by the legislative body to the Dutch constitution, like the American Supreme Court. On the international level, this is different. There, laws made by the Dutch legislative body can be tested against international law by Dutch judges. Besides this, Dutch judges can use international law in their court (Heringa et al., 2015: 128, 11, 84).
Although the Dutch judge is officially not a part of the lawmaking body of the Dutch democracy, it can make and influence laws. This is because of case law. Rulings by judges and mainly the rulings by the Dutch highest judge, the Hoge Raad, become important case law. But, lower national judges can also create case law. Dutch case law is not binding for the Dutch judge. This has to do with the stare decisis-doctrine and can also be found in article 12 of the Wet algemene bepalingen. Case law can become common law if other judges decide to go along with these rulings. Eventually, common law can be transformed into written law by the legislative body of the democratic state. Essentially, this means that law is created from
As an addition to this, international judges also create case law. In some cases, rulings by international judges are binding, in contrast to Dutch case law. This is for example the case if judges from the ECJ rule about preliminary rulings. States are bound to abide to these rulings (Nieuwenhuis 2017: 60). Another example is the European Court of Human Rights, which can create binding rulings for the involved member states. Those rulings are not binding for member states who are not involved in that case, but can either way influence the reach of the article the case is about (Heringa et al. 2017: 483-484). The European Court of Human Rights has argued that their role should be modest and that their aim is not to replace the domestic courts. But, according to Goss, this representation of the role of the European Court of Human Rights is incorrect. The Court has a much bigger role and influence on national states than it admits (Ross 2014: 44-45).
What does lawmaking by the judge mean for the citizens and the democratic state? Judges are not directly chosen by the people, like the politicians in the Dutch Second Chamber or members of the European Parliament are (Heringa et al. 2015: 138-139, 92). Decisions made by directly elected representatives are, according to Dahls’ criteria for the democratic state, democratic. Decisions made by actors who are not elected by the people, such as (international) judges are not democratic, according to Dahls’ criteria. Decisions by judges which become law, can therefore be seen as a violation of the democratic state. To some, this is an alarming development (Bauw 2017: 17-20).
The Netherlands in the international community
Besides national law, international law is also applicable to the Dutch democratic state. The main source of international law are treaties. Each of those treaties have their own corresponding courts who are qualified to make rulings about violations of these laws. (Heringa et al., 2015: 82, 95).
The Netherlands is a part of several treaties and the corresponding international courts. A couple of examples are the European Convention on Human Rights (ECHR) with the European Court of Human Rights, the membership of the European Union, the corresponding Charter of Fundamental Rights of the European Union and the European Court of Justice. Besides this, there is the International Criminal Court (Statue of Rome), the International Court of Justice (Charter of the United Nations), several ‘temporary’ tribunals such as the
International Criminal Tribunal for the former Yugoslavia (Nieuwenhuis et al. 2017: 53-62). Then there are several arbitration tribunals and the intention to create a tribunal for the case of MH17 (Righton 2017).
As you can see above, the international community has many courts. All of these courts have corresponding treaties and laws. Both these sources of international law and the rulings of the judges of the international tribunals have implications for national democracies. National judges can be overruled by international judges and national politicians can be overruled by international (law-making) organizations. This interaction will be the main focus of this thesis.
Methodology
The goal of this thesis is to study the effects that international courts have on the Dutch democracy. This will be done by using a case study. Qualitative methods will be used.
A case study is “an intensive study of a single unit for the purpose of understanding a larger class of (similar) units” (Gerring 2004: 342). Yin qualifies a case study as “an empirical enquiry that investigates a contemporary phenomenon in depth and within its real-world context, especially when the boundaries between phenomenon and context may not be clearly evident” (Yin 2014: 16). A unit is a spatially bounded phenomenon, observed at a single point in time or over some delimited period of time, for example a nation state (Gerring 2004: 342). The case study is used to study a phenomenon in depth (idem: 346). Both quantitative and qualitative methods can be used (idem: 343). There is no standard format for creating a research design of a case study (Yin 2014: 27). In a case study, one or more cases can be studied using various research designs. This can also be done in different periods of time, or in the same. (Gerring 2004: 343). When studying several cases, one primary unit of analysis will be chosen and studied using ‘within-unit cases’ (idem: 344).
In general, there are several concerns about using the method of case studies. Flyvbjerg (2006) summarizes these in his article. The ‘common misunderstandings’ (as he calls them) are about the value of practical knowledge, generalization, generating hypotheses, a bias towards verification and the summarization of case studies (Flyvbjerg 2006: 219). These have been known as the most concerning aspects of case studies, as both Gerring (2004: 344-345, 348-349) and Yin (2014: 45-48, 133) mention these. However, Flyvbjerg argues that these concerns are misunderstandings and that using case studies as a research design is a valuable method of studying a phenomenon (Flyvbjerg 2006: 243-244).
In this thesis, the method of the case study will be used to study the effects of international courts on the Dutch democracy. The primary unit of analysis that will be studied in this thesis is the Netherlands and specifically the Dutch democracy. To study the influence of international courts one within-unit case will be used: the case of article 6 of the ECHR. Article 6 of the ECHR is about the right to a fair trial. There is no specific article about the right to a fair trial in the Dutch constitution. Instead, this right is scattered amongst several articles
in the Dutch constitution. The Dutch government and politics are in the process of implementing a specific article about the right to a fair trial. The case as mentioned above, will be studied in the following period. As this thesis is written in 2018, the cases will be studied up until December 2017. The analysis has shown that the influence of international courts has initiated the process to implement the right to a fair trial in the constitution. The rulings of the court have expanded and further explained the reach of the article. The Dutch politics and government reacted to this by initiating the procedure and to create a more comprehensive constitution and to not be dependent on international law.
Several methods will be used to study the mentioned effects. Previous to this paragraph, there was a theoretical framework which gives a starting point for the analysis (Yin 2014: 39-40). For this theoretical framework, a literature review was used. A literature review represents the knowledge about the topic and gives an overview of the most important concepts (Bryman 2012: 8,14). Secondly, documents from the Dutch government, political body and (international) courts will be used. Using these sources will be useful to study the effects of international courts. By, for example, using transcripts of debates from the Dutch Second Chamber, it will become clear what the motives of Dutch politicians, their political parties and the government are.
Analysis
There are a few observations that can be made about the influence of international courts on democratic states. First, the cohesion between national and international law. In several cases, international treaties are more comprehensive than national law. For example: the ECHR does have an article about the right to a fair trial (article 6), whilst Dutch law does not have just one article about this: those rights are scattered amongst several articles (De Blois 2014: 259-260). Second, national judges are in some case obligated to ask ‘preliminary rulings’ when deciding about international (in this case: European) law. They cannot decide about certain subjects by themselves, but they always have to consult other judges (Heringa et al. 2015: 95-96). Third, international case law is also a source of national law. This means that rulings by international judges will have implications for national judges (De Blois 2014: 59). A fourth problem is that international law is not applicable to all states. Not every state is a member of the ECHR, so the fundamental freedoms they agreed on might not be applicable in non-member states. Another example of this is that the US is not a part of ICC, as we can see in the Statue of Rome. A final problem is that some African states have threatened to leave the ICC, because according to them the ICC is biased towards African states (Onishi 2017).
In this thesis, there will be a focus on one of the problems from the list mentioned above. This will be the case that international treaties are more comprehensive than national law. As an example, the case of article 6 of the ECHR will be used. In the Netherlands, there are some proposals where there is a proposal for a law to create a comprehensive Dutch law for the rights to a fair trial.
The case of the implementation of the right to a fair trial in the Dutch constitution
Introduction
After the second World War, there was an urge for international cooperation between countries to prevent such disasters from happening again (Spaventa 2017: 228). One of the many initiatives that resulted from this was the creation of the European Coals and Steal Community, which eventually led to the European Union (Craig 2017: 12-13, 20-21). Another important institution that was created was the Council of Europe. This was not created within
the European Union, but apart from it. Even states that were not part of the European Union, could join this institution (e.g. Russia and Turkey) (Council of Europe no year). Many fundamental rights were not incorporated in treaties from the European Union, but the states felt that it was necessary to create an international standard for human rights (Spaventa 2017: 228-229). The ECHR is now seen as the best method to enforce human rights (Moravcsik 2000: 218).
An important article of the ECHR is article 6. This article is about the right to fair trial (De Blois 2014: 259-260). It summons the rights a person has when he is charged with a criminal offence. The Dutch constitution does not have an article about the right to a fair trial in its constitution. There are rights about a fair trial implemented in the constitution, but these are scattered (Staatscommissie 2010: 57). Because this article of the ECHR is ieder verbindend it is above Dutch law and can be used in the domestic court (Heringa et al. 2015: 82-83).
In 2010, the Dutch government received a report from the ‘Commission Constitution’ (further Article 6 ECHR – right to a fair trial
1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3) Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Staatscommissie recommended to create an article in the Dutch constitution about the right to a fair trial. The Staatscommissie felt that this would create more legal protection and that it should be more comprehensive than article 6 of the ECHR (Staatscommissie Grondwet 2010: 8). But, these were just recommendations, which meant that the Dutch government was not obliged to implement the recommendations. The rapport from the Staatscommissie led to a motion from the Dutch First Chamber (2012) in which they insisted that the Dutch government should incorporate the right to a fair trial in the Dutch constitution (First Chamber 2012). It is remarkable that the First Chamber submitted the motion, instead of the (directly elected) Second Chamber. In 2013, the government responded that they would implement the motion. A period of consulting civilians and professionals followed and the permanent commission for internal affairs also studied the initiative (First Chamber no year). In 2017, the proposal from the government could be put to a vote (Second Chamber 2017a). The proposal was accepted with 130 of 150 votes in favor (Second Chamber 2017b). Because it requires a change in the constitution, there has to be a second vote after new elections. These are currently planned to be held in March 2021, but could be held earlier in case of a political crisis. The proposal will only be adopted if two thirds of the chamber votes in favor of it (Heringa et al. 2015: 245-246).
Altogether, the process regarding the implementation of the right to a fair trial article can be summarized as followed. Because of the intended change of the Dutch constitution, a proposal was put forward to implement the right to a fair trial in the Dutch constitution, following article 6 of the ECHR. Only after the First Chamber insisted, the government created a proposal. In May 2017, the proposal was accepted. Because implementing the proposal requires a constitutional change, there needs to be a second vote after new elections (no later than March 2021).
Analysis
As seen in the theoretical framework, governments adhere to human rights regimes for certainty, because international law can be more comprehensive than national law, as seen with article 6 of the ECHR. This has led to the Dutch initiative to create their own article about the right to a fair trial. There already is an international law about the right to a fair trial – why create another (domestic) law about it? The motivation behind the initiative can be found in
documents from the Dutch Second Chamber and government. An important remark is that this debate took place in the demissionaire periode of the Dutch cabinet. After the elections in March 2017, a new Second Chamber was formed. The old cabinet staid on until a new cabinet was formed, which did not happen until October (Second Chamber 2017c). Having a demissionair cabinet means no new topics will be treated in the Second Chamber, but that they will only deal with ongoing legislation (Heringa et al. 2017: 164-165).
According to the Staatscommissie Grondwet, it is not absolutely necessary to adopt legal norms that already are in treaties. But, they do think adopting the right to a fair trial in the constitution is necessary because of accessibility, consistency and integrality. Human rights should also be incorporated in domestic law, not only in international law. (Staatscommissie Grondwet 2010: 57-58). This does not correspond with the constructivist view as mentioned in Moravcsik (2000). Human rights are not only an international responsibility, but also a national one. It would strengthen the Dutch constitution if more human rights will be incorporated. (Staatscommissie Grondwet 2010: 58). It is important to mention that the constitution does not provide the same protection as international treaties do, because of the toetsingsverbod. Incorporating international human rights into the Dutch constitution thus does not mean that it will provide the same protection – simply because Dutch judges cannot test laws made by the legislative body to the Dutch constitution.
The transcripts of the debate that preceded the vote in the Second Chamber, give a useful insight into the motivation of the politicians to incorporate the right to a fair trial in the Dutch constitution. In the following paragraph, a brief overview of the considerations of het present political parties will be given. Not all political parties attended the debate. Only the motivations of the political parties present at the debate will be discussed.
The CDA (largest Christian party, 19 seats) was in favor of the proposal, but stated that the proposal must be an addition to the Constitution and not be the same as article 6 ECHR. D66 (liberal party, 19 seats) was also in favor of the proposal but stated that the proposal was not complete because it did not cover all juridical areas. Besides this, the party urged that the toetsingsverbod would be abolished, otherwise the reach of the article would be limited. VVD (biggest liberal party, 33 seats) is also in favor of the proposal. They emphasized that, in their opinion, the Dutch constitution should have primacy. The Netherlands should not depend on
also in favor of the proposal, although, they state, the proposal will not change much in practice. It is important to incorporate the right to a fair trial in the constitution. They do state that they feel the proposal does not seem to be comprehensive. GroenLinks (green party, 14 seats) is in favor of the proposal. They do question the effectiveness of the proposal and stress, just as D66 did, their opinion to abolish the toetsingsverbod. The SP (socialist party, 14 seats) are also in favor of the proposal. They do state that treaties are not comprehensive. They stress the importance of a comprehensive constitution, which is why they are in favor of implementing the right to a fair trial to the Dutch constitution. They too, urge the abolishment of the toetsingsverbod. (Second Chamber 2017a, Kiesraad 2017).
Before proceeding to the votes, it is important to discuss a few observations. First, not all parties were present at the debate and gave their opinion about the proposal. It is unfortunate not knowing their motivation for voting in favor or against the proposal, but the transcript of the debate has shown the most common arguments. Second, two parties mentioned that the proposed article is not comprehensive. This is a well-known critique about law in general. Law cannot be fully comprehensive because of the constantly changing world. Judges can, because of these rulings which become case law, close this gap. (De Blois 2014: 50-53). This is happening every day again and also in the case of article 6 of the ECHR, as will be shown after this political analysis. Third, three parties urged the abolishment of the toetsingsverbod. They state that implementing a right to a fair trial article will not be of much use, if judges cannot apply it in court. The abolishment of the toetsingsverbod has been an ongoing process in the Dutch parliament: there is a proposal to abolish parts of it, but this has stranded after the first vote (Arnbak 2017). Fourth, the politician from the VVD stated that, in their eyes, the Dutch constitution should have primacy. This is a difficult comment in multiple ways. First, as long as the Netherlands is part of international organizations and the corresponding treaties, the Dutch constitution will never have primacy. Because of certain articles in the Dutch constitution, ieder verbindende treaties will prevail, as explained in the theoretical framework. The politician from the VVD argues that the Dutch constitution should be comprehensive (which is not possible, as explained at observation two) and that is why the right to a fair trial should be implemented in the Dutch constitution. This argument shows lack of knowledge about (inter)national law, but can be understood. From the transcript becomes clear that he wants the Netherlands not to be dependent from international organization or
treaties, which is against the claims of Moravcsik and Benvenesti. These authors claimed that countries adhere to international law to create comprehensive national law. But, the introduction of the right to a fair trial to the Dutch constitution shows that this is not always the case. From the transcript becomes clear that the Dutch politician does not feel as if adhering to treaties will create more certainty. It is not entirely clear what causes this uncertainty.
The proposal was adopted by all parties, except for the PVV (Party for the Freedom) (Second Chamber 2017b) but has to be put to a second vote, as explained above. The proposal can no longer be modified after the first vote (Heringa et al. 2017: 245-246), which means that new case law from the European Court of Human Rights cannot be included in the proposal.
The transcript also shows the motives of the government to create the proposal. The minister of Internal Affairs (Plasterk) stated that there are two main arguments why the government decide to implement the motion of the First Chamber in 2012. First of all, the right to a fair trial would complement the two already existing pillars of the rule of law: the legality principle and the trias politica. Secondly, adopting the right to a fair trial would have a symbolic function. Minister Plasterk stated that adopting the law would not have material consequences because it already exists in international law, but that the principle of the right to a fair trial is such a fundamental value, that it is important to adopt it in the Dutch constitution (Second Chamber 2017a). These arguments are different from those of the present political parties in the debate. The minister does, in a way, agree with the arguments that the proposal will not have much practical effects and the argument that the Netherlands should have a comprehensive constitution.
As stated in the theoretical framework when discussing the articles of Moravcsik (2000) and Philpott (2016), states lose sovereignty when joining an international organization and adhering to the corresponding international courts. This seemed to be to avoid political uncertainty. But, as has become clear from the analysis above, Dutch politicians feel as if only having human rights implemented in treaties instead of in the constitution, causes that political uncertainty. This is why both the majorities of the First and Second Chamber and the Dutch government insisted on implementing the right to a fair trial into the Dutch constitution
– to avoid uncertainty and to create a stable rule of law. The underlying reasons vary from party to party – the government states that (amongst others) the symbolic effect is important.
As has become clear from the theoretical framework, rulings by international judges can influence the national democracy. Article 6 of the ECHR has become an important article in the case law of the European Court of Human Rights (Goss 2014: 35-36). When looking at the influence of the court itself, it sees its own role as modest and limited. The goal of the court is not to create a general doctrine, but create decisions in individual cases (Goss 2014: 39). But, as described in the theoretical framework: case law can become law. Goss confirms this (2014: 40-41). Before studying important rulings from article 6 ECHR, it is important to note a difference. Rulings that are directed to the Netherlands, are binding. Rulings directed against other member states is not directly binding, but can be used on the national level and in other rulings from the European Court of Human Rights (Heringa et al. 2017: 384).
Although article 6 of the ECHR is regarded as a fundamental addition to human rights law, it is not entirely comprehensive or clear. Because of this, case law from the European Court of Human Rights is important to involve to get a complete overview of the reach of the article. In the case of Airey (October 9th 1979), the European Court of Human Rights expanded
the reach of article 6 of the ECHR. This was conformed in Shamoyan v. Armenia (July 7th,
2015). In the case of Dombo Beheer BV of October 23, 1993 the European Court of Human Rights also expanded the reach of the article. Even though two of these rulings were not directly binding for the Netherlands, they do influence the understanding of the article and future rulings (Heringa et al. 2017: 483-484). These specific rulings have expanded the reach of article 6, because the article about the right to a fair trial could be used in more cases (instead of only in criminal law cases), than it could before.
The European Court of Human Rights itself created an overview of important case law that have expanded the reach of the article (Council of Europe 2014). In there, they state that the goal of case law is to " [..] to determine, in the general interest, issues of public policy, thereby raising the standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States”. The amount of case law as discussed in the publication and the amount of available case law in the European Court of Human Rights database HUDOC is enormous and because of that, impossible to discuss in its totality. In total, the Courts has (on January 11 2018), treated 29.432 cases about article
6 of the ECHR. Not every ruling becomes influential case law, but the publication of the Council of Europe as mentioned in this paragraph shows, that only understanding article 6 as stated in the ECHR, is not enough to understand the reach and implications.
All in all, both rulings that are binding and rulings that are not binding for the Netherlands influence the understanding and reach of the article. Decisions by judges from the European Court of Human Rights thus have a substantial effect on the effect of treaties and the corresponding articles. The power of the European Court of Human Rights is, despite its modest position, gigantic. These rulings have influenced the decision of the Staatscommissie, Dutch politicians and government to take the initiative and implement their own right to a fair trial article. The frequent use of the right to a fair trial in both the European and the Dutch courtroom has attracted attention. The realization that such a right was not implemented in the Dutch constitution, was the incentive for the Staatscommissie to initiate the process. The uncertainty that some Dutch politicians feel about the comprehensive function of international law, has led to the creation of the right to a fair trial article in the Dutch constitution, because they motivated the Dutch government to start the process.
Besides this, even though analysis of the literature shows that national states begin to appreciate international law and see it as an enforcement of their democratic state, the Dutch politics shows that they want to add their own layer of protection by implementing their own right to a fair trial article. However, if the proposal is accepted after the second vote, the article from the ECHR will always prevail if it is more comprehensive than the Dutch article because of the status of international law in the Netherlands. Besides, the lack of constitutional review in the Netherlands creates a disadvantage in comparison to the ECHR. The analysis can be summarized as follows. Because of the growing influence of international organizations, international law and the corresponding international courts, Dutch politicians and the government felt the need to act. The Dutch constitution did not have a specific article about the right to a fair trial. The incentive created by the rulings of the European Court of Human Rights, caused the Staatscommissie to propose the implementation of the right. Only after a motion of the Dutch First Chamber, the government acted. After this, the Dutch Second Chamber followed. The analysis of sources from the Dutch politics showed that the Dutch politicians were aware of the reach of the ECHR and the court.
This led to the feeling that the Dutch legislative body should create a more comprehensive constitution and that they should not be dependent on international law.
Conclusion
After analyzing the literature, Dutch politics and case law from the European Court of Human Rights the following can be concluded. The influence of the judges from the European Court of the Human Rights and the treaty of the Council of Europe, the European Convention on Human Rights, created the incentive for the Dutch politics to create their own right to a fair trial article in the Dutch constitution. Every actor has its own incentives to create this. For (amongst others) the VVD, government and the Staatscommissie, the goal was to create a comprehensive Dutch constitution. Although the goal is admirable, creating a comprehensive constitution is impossible. This means that politics and judges will always be dependent on rulings from (inter)national judges to explain the reach of (inter)national law. As this thesis has shown, the influence of those rulings is immense. Case law from the European Court of the Human Rights has extended the reach of article 6 of the ECHR.
However, implementing a comparable article in the Dutch constitution will not have the same effect as article 6 of the ECHR, because of the toetsingsverbod. As has become clear from the analysis, Dutch politicians are urging to abolish it. Therefore, the implementation will not be of much use, as several political parties already mentioned. It will rather have a symbolic use, like minister Plasterk stressed.
But – the process did not end yet. Only after new elections (no later than March 2021), the proposal can be put to a new vote and can the right to a fair trial be implemented in the Dutch constitution. But, as we have seen with the proposal to abolish the toetsingsverbod (Second Chamber 2017a), this does not mean that the voting will happen. It is therefore essential that Dutch politicians and the government will continue to pursue the implementation of the right to a fair trial. It is important to remember that the proposal cannot be changed anymore. New case law from the European Court of Human Rights can no longer be included in the Dutch proposal.
All in all, because of the influence of international courts, the right to a fair trial was implemented in the Dutch democracy. The extended reach of those courts created the incentive for the Dutch politics and government to act and to create a more comprehensive constitution and to not be dependent on international law.
It is important to review the limitations of this thesis and the use of a case study. As mentioned in the methodology, using a case study has its limitations. The case study that has been used in this thesis is a very small example of the influence of international courts on national democracies. However, it does give a clear example of a specific situation that the interaction between international courts and national democracies could do. Using this specific case study thus both has its benefits and disadvantages. Further studies into this subject can study other specific cases and those results could be combined to make a general conclusion about the influence of international courts.
A final observation for this thesis is the combination of both political science and law. An observation through the literature reviewing process was that a combination of both fields did not occur. In the literature originating from law journals, political elements of the case were overlooked and vice versa. It would be an addition to further research into this subject if these two fields were combined.
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