29 August 2016, The Netherlands

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29 August 2016, The Netherlands

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Article 11 ICESCR

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

  1. Right To An Adequate Standard Of Living For Undocumented People (“Bed-Bath-Bread” debates)

The position of irregular migrants in the Netherlands has remained a much disputed issue. Important developments have taken place since the last reporting cycle: In 2009 the ECSR has concluded that the Netherlands was violating the right to shelter of children in an irregular situation (Defence for Children International v The Netherlands, Complaint no/ 47/2008, 20 October 2009), followed by a ruling of the Dutch High Court to the same effect in 2012.148 The government has responded by setting up freedom restricted family centres which are governed by a very sober regime of services.

In 2014 the ECSR has concluded that adult migrants in an irregular situation at risk of destitution should have unconditional access to emergency shelter and food to protect their human dignity (Conference of European Churches (CEC) v The Netherlands, complaint no. 90/2013, adopted on 1 July 2014 and European Federation of National Organizations working with the Homeless (FEANTSA) v the Netherlands, complaint no. 86/2012, adopted on 2 July 2014). The government responded by taking the positon that ESC provisions have no direct effect and opinions of the ESCR are not binding. This position has been seriously disputed by different fractions of Parliament and municipalities who wanted to see the conclusion implemented. This led to the proposal of the so called ‘bed-bad-brood-compromise’ which comprised amongst others the establishment of new centres in five municipalities (April 2015).149 The BBB-proposal has not been formalized nor agreed upon by all parties concerned awaiting decisions of two different high courts: the Centrale Raad van Beroep, high court with regard to Wmo that covers access to municipal shelter and the Raad van State, high court with regard to migration law. In November 2015 the high courts rendered their verdicts on the same day.150 They concluded that there was no legal basis for municipalities to provide emergency shelter to irregular migrants. Shelter provided at freedom restricted departure centres on the condition of cooperation with departure did not warrant the conclusion that shelter is not available for undocumented migrants at risk of destitution.

Because this conclusion does not take into account the reality of many migrants in irregular situation, leaves the gaps of the existing system intact and side steps the conclusion of the ESCR,151 the Special Rapporteur on extreme poverty and human rights, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right of non-discrimination in this context and the Special Rapporteur on the human rights of migrants have written a letter to the Dutch government urging it to respect the core obligations.152

In its non-admissibility decision 5 July 2016 (Hunde v The Netherlands, 17931/16) the European Court of Human Rights has acknowledged the conclusions of the ESCR in CEC and FEANTSA v the Netherlands but concludes that those findings do not automatically entail a violation of article 3 (inhuman and degrading treatment) in the context of the ECHR. The non-admissibility decision was based upon the fact that the Dutch government had not remained indifferent and was engaged in a solution (Bed-bad-brood compromise). It is vital for adult undocumented migrants that this compromise takes account of their human dignity, as human dignity is a legal concept linked to the concept of core obligations under the ICESCR.153 Currently (numbers in June 2015) approximately 1300 undocumented migrants are being provided with sheltered by municipalities.

Recommendation 33:

The submitting parties recommend the Committee to remind the Dutch government that the ‘bed-bad-brood compromise’ has to be in conformity with its core obligations under the ICESCR.

The submitting parties recommend the Committee to call upon the Dutch government to ensure that undocumented migrants at risk of destitution have unconditional access to emergency shelters, hospices, food and clothing – while guaranteeing the special needs of irregular migrants with mental and physical disabilities are protected.

  1. Right to an Adequate Standard of Living on the BES islands (& 2 ICESCR)

Since 2010, the welfare level on the BES islands has dwindled and many now live in poverty. It is clear that the consumer spending has diminished, owing in part due to higher (Dutch) taxes and living costs while salaries and social services have remained the same. Organizations such as the Netherlands Institute for Human Rights and UNICEF and the Evaluation Committee of the BES islands have repeatedly expressed their concern154 over the situation on the islands and have urged the Dutch government to provide an adequate standard of living conditions. In its Concluding Observations in 2010, the Committee was already concerned at the ‘unequal enjoyment of economic, social and cultural rights among the four constituent countries of the State party’155. Moreover, recent report shows that many children in the BES islands grow up in unsafe and unhealthy conditions.156 This makes them even more vulnerable despite the government’s claim to pay special attention to child poverty.

Recommendation 34:

The submitting parties recommend the Committee to ask the Dutch Government what concrete measures it is going to take to combat child poverty and raise the standard of living on the BES islands.

  1. Right to Drinking Water and Sanitation

In 2013 over 8000 households and businesses in the Netherlands were cut off from water after unpaid charges. It is estimated that this is about 500 to 750 families with children. Those households do not have access to drinking water or sanitation at home, nor can they wash themselves. 157 Human rights do not give the right on free drinking water. The consequences of the current laws and regulations however – children who do not have access to drinking water at home – does put the protection that human rights offer truly to the test. Children enjoy extra protection because of their vulnerability. Governments should therefore put the best interests of the child first in the making and implementing of policies and realize that the right to drinking water is a human right, which is tied to the concept of human dignity and a prerequisite for the realization of other human rights”.158

Recommendation 36:

The submitting parties recommend the Committee to ask the Dutch government to take into account the right to drinking water and sanitation in the making and implementing policies, in particular children who need extra protection.

  1. Right to Housing: unsafe living situations in Groningen Province due to Earthquakes caused by Gas-extraction (& article 12)

Since the 1960s, the Province of Groningen in the North of the Netherlands has seen substantial gas extraction. The ‘Groninger Gas Field’ is one of the largest in Europe, and is exploited by the Nederlandse Aardolie Maatschappij (NAM), a private company with an infinite concession, and ownership of the gas, although their extraction activities are subject to periodic extraction permits under the Mining Law (Mijnbouwwet).159 The main shareholders of NAM are Exxon Mobile (50%) and Shell (50%), but overall the exploitation of the Groninger fields is for ‘risk and responsibility’ of the ‘Maatschap Groningen’ in which the State has a 40% interest and shares 50:50 voting rights with NAM.160

In 2012, the Groningen region was struck for the first time by an earth quake of 3.6 on the Scale of Richter. 161 Under the Dutch Mining Law (Mijnbouwwet) the Minister of Economic Affairs can place restrictions on extraction plans of the NAM, including for safety of inhabitants. In most recent years levels of permitted gas extractions have been curbed due to safety concerns.162 Nevertheless, current gas extraction limits still are mostly informed by (minimum) amounts of gas needed to service foreign gas contracts and to secure warm houses according to moderate winters.163 However, considering that houses in the Netherlands are generally not earth quake proof – certainly not Groningen’s old farm houses –, many houses in Groningen have been (severely) damaged over the past years. 164 A number of people were already forcibly evicted from their family homes for their own safety.165

Overall, there is an increasing sense of unsafety in the area and (mental) health problems are on the rise.166 This has led to heated debates about the future of (safe) gas extraction and several law suits against the State and NAM.167 These discussions and suits are increasingly couched in ‘human rights’ terms.168 However, the implications of the international human rights framework for decision-making and steering action in the gas extraction dossier remain poorly understood. The submitting parties consider that the Dutch State – and private company NAM in the context of the UN Guiding Principles on Business and Human Rights – have to duly consider human rights, including rights to housing and health, subject to obligations to effectively ‘respect’ and ‘protect’ against interferences with these rights, as well as ‘fulfil their enjoyment as necessary. There are also further international standards that should play a bigger role, such as the ‘UN Basic Principles and Guidelines on Development Induced Evictions and Displacement’, drafted by the UN Special Rapporteur on the Right to Housing in 2007.169 This especially applies to the – very slow – practical implementation of the current housing reinforcement plans and reconstruction efforts, particularly taking into account the unclarity on the number of houses to be reinforced.170 Furthermore, it particularly applies to the procedures in place to fully compensate people for any damage, reconstruction or resettlement, and to buy the houses of people who want to leave – including the often strained and at times intimidating negotiations led by the NAM.171 Submitting parties observe that Dutch Courts have refused to examine these claims due to their perceived lack of direct applicability of ICESCR rights.172

Recommendation 37:

  • The submitting parties recommend the Committee to ask the Dutch government how it intends to ensure safety, right to housing and mental and physical health of Groningen inhabitants in the face of consequences of past and future earth quakes due to gas extraction?

  • The submitting parties recommend the Committee to urge the Dutch government to respect and protect the rights to housing/adequate living standards and right to health, and to ensure particularly, in cases interferences cannot be prevented, that evictions, compensation, housing situations are effective redressed, in line with relevant international human rights standards.

  • The submitting parties in particular request that the full range of human rights are taken into account in assessing new extraction plans, and in monitoring the situations in the area carefully.

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  • Right To An Adequate Standard Of Living For Undocumented People (“Bed-Bath-Bread” debates)
  • Recommendation 33
  • Right to an Adequate Standard of Living on the BES islands ( 2 ICESCR)
  • Recommendation 34
  • Right to Drinking Water and Sanitation
  • 157
  • 158
  • Right to Housing: unsafe living situations in Groningen Province due to Earthquakes caused by Gas-extraction ( article 12)
  • Recommendation 37

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