This parallel report contains the comments of 20 Dutch NGOs and other civil society actors (hereinafter ‘the authors’) on the Sixth Periodic Report of the Kingdom of the Netherlands on the implementation of the Covenant. In particular, the report responds to the comments of the Government in its report, the CESCR Concluding Observations of 2010 and current present concerns on ICESCR-rights in the Netherlands.
This parallel report does not address all the provisions of the Covenant or all the comments made by the Dutch government in its report. Primarily, comments are based on the joint expertise of the submitting groups. This means that some issues may not be addressed (e.g. there are no submitting LGTB organizations in the present report). However, this thus not necessarily means that authors acquiesce or agree with certain developments or (in)actions of the Dutch government.
Temporal and Geographical Scope of the Report
This report covers the efforts of the Dutch government in respecting, protecting and fulfilling the ICESCR from November 2010 to September 2016, and in particular issues still pressing at the moment so that the dialogue with Committee is of immediate relevance to present day concerns. In addition, because most contributing NGO’s are primarily operating on the European territory of the Kingdom, this report mostly focuses on the implementation of the ICESCR in the European part of the Kingdom of the Netherlands by the Dutch government in the Hague. A few comments are included on ESCR enjoyment in the Caribbean parts of the Kingdom, and then particularly on the islands of Bonaire, St. Eustatius and Saba (BES-Islands) which were incorporated in 2010 as municipalities of the European part of the Kingdom, following new constitutional arrangements.
Length of the report
The authors are well aware that the present parallel report is very long. It is double the size of our 2009 Parallel Report. The reason is that ESCR have been under particular strain in the past 6 years, due to budget cuts, decentralisation of services access in the social domain, increased migration influxes, and polarisation in Dutch society leading to discrimination. These negative developments are reflected in this report.
General Concerns and Observations on the Reporting Period
Concerns with the general quality of the Sixth Periodic Report
A.1. Poor civil society consultation
In respect of the civil society consultation, the authors are dissatisfied with the efforts of the government to engage in meaningful consultations on the implementation of the ICESCR. and preparation of the government’s report. In March 2015, the Dutch section of the International Commission of Jurists (NJCM), and several trade unions, were sent the draft of the government’s report to scrutinize and provide written comments to (preferably in the English language).1 The NJCM decided not to participate in this kind of consultation for several reasons which were communicated to the government. First, it finds that an independent NGO should not interfere in drafting official reports of the government. As such an NGO, the NJCM strives to influence the government’s policy, not the reporting on its implementation.
Second, the UN guidelines on reporting say that ‘States parties should see the process of preparing their reports for the treaty bodies (…) as an opportunity to take stock of the state of human rights protection within their jurisdiction for the purpose of policy planning and implementation.’2 The role of civil society and other stakeholders is deemed to be of great importance to this process through monitoring human rights developments and contributing to their implementation on the national level. Therefore, the guidelines continue by stating that ‘The reporting process should encourage and facilitate, at the national level, public scrutiny of government policies and constructive engagement with relevant actors of civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment by all of the rights protected by the relevant convention.’3 This described (monitoring) process is a far more dynamic and substantial one than providing written feedback to a draft report.
In order for civil society consultation to prove its value, the government should make an effort to invite a broad range of NGOs that represent those persons and the groups most affected by the relevant treaty, and facilitate a constructive dialogue. According to the undersigning NGOs, the Dutch government failed to arrange for such an opportunity in the light of the Sixth periodic report on the ICESCR.
The submitting parties request the Committee to urge the government to take the consultation of civil society prior to reporting seriously by:
building and maintaining a database/network of relevant NGOs for the implementation of ICESCR, that can be consulted at any time;
organizing one or more events for a dialogue with these organizations and other stakeholders prior to the drafting of the report – and preferably mid- reporting cycle as well;
using this network to discuss the Concluding Observations and their follow up, including the role of civil society in that process.
A.2. Very Out-Dated Common Core Document and Failure to Use CESCR Reporting Guidelines
With regard to the reporting of the Dutch government, the submitting parties deplore that the Government has not responded to the CESCR Concluding Observation (2010) no. 42, and has still not updated its 20 year-old ‘Common Core Document’ for the treaty bodies.4 The document dates back to 1995. As a result important legislative developments and guarantees surrounding ICESCR are not updated, including developments that might prove retrogressive.
The submitting parties deplore that the Dutch Government has not submitted a report with regard to the state of the ICESCR implementation, instead has limited the report to responding to previous Concluding Observations of the Committee. Certainly, it is important to demonstrate how the Government has responded to these Observations (or not); however, in this manner, new issues that have arisen in the past period are not well covered. A good example are the regressive developments on ‘international cooperation’ as explained under C below (Question 9 in the ICESCR Reporting Guidelines).
The submitting parties recommend the Committee to ask the government to:
use the 2009 ICESCR Reporting Guidelines in preparing future reports, so that the Committee is given a full picture of important developments in the period under review.
Still a Lack of Direct Applicability of the ICESCR in the Dutch Courts
The CESCR’s Concluding Observations of 20065 and 2010,6 along with various other international human rights monitoring bodies,7 have already twice reprimanded the Netherlands for barring persons on Dutch territory to call upon (the IC)ESCR to protect their socio-economic human rights in Dutch Courts. The basis for this is mostly that the Dutch Government traditionally considers ICESCR-rights mere policy prescriptions, and potentially too costly to be justiciable through individual claims.8 The Dutch Government nevertheless seems open to a different position on the matter, considering that it leaves the matter ultimately ‘up to the Dutch Courts’.9 However, Dutch judges have traditionally turned to prior government positions and case-law for guidance on the extent of justiciability of ESCR under the Dutch constitution. This leaves deprived citizens trapped in a Catch-22 (between Government and Judges who both look at each other for any progression on the matter). As a result some vulnerable groups and deprived persons have resorted to strained tactics for claiming some measure of socio-economic protection – e.g. by trying to claim rights directly before the non-binding collective complaints procedure of the European Committee on Social Rights, or by trying to bring ESCR-related violations under the limited scope of protection of the European Convention of Human Rights.10
The submitting parties deplore that the Dutch Government, and Dutch judges, continue to maintain very conservative positions on (IC)ESCR, which largely ignore, with a simple reference to the phrase that ‘socio-economic rights do not have direct effect’, all the significant normative developments that have taken place in international human rights law between 1970 and 2016, certainly on (IC)ESCR. Both government and courts show very little deference to, or perhaps even unawareness of, interpretations and clarifications given to (IC)ESCR by the CESCR and other treaty bodies, or UN Special Procedures, whether in terms of content of substantive rights in General Comments, the notion of core obligations or minimum essential levels, or the development of the tripartite obligation to ‘respect, protect and fulfil’ all human rights regardless of their civil/political or social/economic natures.11 This backward position of the Dutch government on ESCR, despite its historically progressive stance on many other areas of international legal development, has been explicitly denounced by three UN Special Procedures, who have stated that the Dutch government takes an unjustifiable narrow position on various questions of modern international socio-economic human rights law recently.12
The submitting parties recommend the Committee to urgently press the state party to remedy the poor position of ESCR in the domestic order, inter alia by:
to secure adequate (IC)ESCR-protection for persons on Dutch territory, including by according direct effect to the ICESCR, again in line with advancing international legal guidance, insights and UN body interpretations in this respect.
Ensuring by the next reporting period, as a matter of law, that persons in the Netherlands are able to meaningfully challenge (IC)ESCR violations in Dutch Courts.