Abstract
In December 2012, the Supreme Court of The Netherlands ruled that The Netherlands had discriminated against a number of scholars with Iranian as well as Dutch nationality. They were prohibited from participating in specialised nuclear education by a regulation that was adopted by the Dutch government in order to comply with a United Nations Security Council (UNSC) resolution. One of the questions that arose during the proceedings, was the relationship between conflicting international obligations of the Dutch state, especially in view of the priority rule of Article 103 of the UN Charter. The Supreme Court of The Netherlands took a rather dualist view, considering that Dutch courts could fully review national measures implementing UNSC-imposed obligations for compatibility with fundamental rights. This view conforms to earlier jurisprudence of the European Court of Justice and the European Court of Human Rights in the Kadi and Nada cases, respectively. The main argument of the article is that the Supreme Court has too easily followed the rulings of both European courts, without developing its own, independent reasoning. This is surprising, because the approach taken by the Supreme Court would not seem to be the most obvious one, given the monist tradition of the Dutch constitutional order. In a time when the influence of international courts on the Dutch legal order is a sensitive topic of public debate, this is an unfortunate omission.
The author is a Senior Policy Advisor at the Netherlands Ministry of Foreign Affairs.
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Notes
- 1.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Kadi I) [2008] ECR I-06351.
- 2.
Nada v. Switzerland, ECtHR, No. 10593/08, 12 September 2012.
- 3.
Supreme Court of The Netherlands, 14 December 2012, Case No. 11/03521.
- 4.
UNSC Res. 1737, 6 December 2006.
- 5.
- 6.
Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban (OJ 2002 L 139, 9). One could wonder whether the EU was even competent to regulate the matter instead of individual member states, a question which was indeed put forward by the applicants in the first Kadi case. The ECJ employed quite complex reasoning in order to conclude that the EU was competent to take such action. For more detail see Tzanou 2009, at 165–136.
- 7.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Kadi I) [2008] ECR I-06351, para. 326 (emphasis added).
- 8.
Ibid., paras. 334–371.
- 9.
- 10.
See Kadi I, paras. 319–322. ‘According to the Commission, so long as under that system of sanctions the individuals or entities concerned have an acceptable opportunity to be heard through a mechanism of administrative review forming part of the United Nations legal system, the Court must not intervene in any way whatsoever. In this connection it may be observed, first of all, that if in fact, as a result of the Security Council’s adoption of various resolutions, amendments have been made to the system of restrictive measures set up by the United Nations with regard both to entry in the summary list and to removal from it [see, in particular, Resolutions 1730 (2006) of 19 December 2006, and 1735 (2006) of 22 December 2006], those amendments were made after the contested regulation had been adopted so that, in principle, they cannot be taken into consideration in these appeals. In any event, the existence, within that United Nations system, of the re-examination procedure before the Sanctions Committee, even having regard to the amendments recently made to it, cannot give rise to generalised immunity from jurisdiction within the internal legal order of the Community. Indeed, such immunity, constituting a significant derogation from the scheme of judicial protection of fundamental rights laid down by the EC Treaty, appears unjustified, for clearly that re-examination procedure does not offer the guarantees of judicial protection.’ (emphasis added) See also paragraphs 133 and 134 of the second Kadi judgment—to be discussed below—which apply the same logic. See furthermore Kokott and Sobotta 2012, at 1019.
- 11.
Joined Cases C0584/10 P, C0593/10 P and C-595/10 P, European Commission and Others v Yassin Abdullah Kadi (Kadi II) [2013] ECR 00000, in particular paras. 65–68.
- 12.
Ibid., para. 163.
- 13.
Ibid., para. 164.
- 14.
See ibid., para. 130. ‘Having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested decision, as defined in paragraphs 117–129 of this judgment, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary provided by the Sanctions Committee is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision. In the absence of one such reason, the Courts of the European Union will annul the contested decision.’
- 15.
Nada v. Switzerland, ECtHR, No. 10593/08, 12 September 2012.
- 16.
See ibid., para. 175. ‘The Court must therefore first examine those resolutions in order to determine whether they left States any freedom in their implementation and, in particular, whether they allowed the authorities to take into account the very specific nature of the applicant’s situation and therefore to meet the requirements of Article 8 of the Convention’. After having looked at the precise wording and the objectives of the particular UNSC Resolution, the ECtHR concluded in paragraph 180 that: ‘the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council.’
- 17.
Ibid., para. 197 (emphases added).
- 18.
Kadi I, para. 212.
- 19.
See Behrami v. France, Saramati v. France, Germany and Norway, ECtHR, No 71412 and 78166/01, 2 May 2007. In this case the ECtHR refrained from scrutinizing state action in the context of the states’ participation in a UNSC-sponsored Peacekeeping Mission, as it attributed the state’s action to the UN, which enjoyed immunity. On this case see de Búrca 2010, at 12–17. In Nada, the ECtHR refers to Behrami, and explains why the facts before it differ from that case: see paragraph 212.
- 20.
De Wet 2013, at 16–24. See also de Bùrca 2010, at 12–17, who concludes the same from the Behrami case.
- 21.
Henrard 2008, at 112.
- 22.
UNSC Res. 1737, 6 December 2006, para. 17.
- 23.
Common Position 2007/140/CFSP.
- 24.
Regeling van de Minister van Buitenlandse Zaken in overeenstemming met de Minister van Onderwijs, Cultuur en Wetenschap van 23 juni 2008, nr. DJZ/BR/0588-08, tot wijziging van de Sanctieregeling Iran 2007 met het oog op invoering van een verbod tot verstrekking van kennis aan Iraanse onderdanen die bijdraagt aan proliferatiegevoelige activiteiten van Iran en aan de ontwikkeling van systemen voor de overbrenging van kernwapens, Staatscourant, 1 July 2008, No. 124.
- 25.
Iran Sanctions Regulation, Article 2a (translation by the author).
- 26.
District Court of The Hague, 3 February 2010, Case No. 334949/HA ZA 09-1192.
- 27.
Article 2a(1) of ISR.
- 28.
The Hague Court of Appeal, 26 April 2011, Case No. 200.063.360/01.
- 29.
Supreme Court of The Netherlands, 14 December 2012, Case No. 11/03521.
- 30.
Ibid., paras. 3.6.1–3.6.4.
- 31.
Regeling van de Minister van Buitenlandse Zaken in overeenstemming met de Minister van Onderwijs, Cultuur en Wetenschap van 28 oktober 2013, nr. Minbuza-2013.295689, tot wijziging van de Sanctieregeling Iran 2012 in verband met een uitbreiding van de groep personen die over een ontheffing dient te beschikken, Staatscourant, 1 November 2013, No. 30733.
- 32.
The particular Dutch system is slightly complicated as the Constitution makes a distinction between provisions that are deemed to be sufficiently clear to be applicable directly in the national order and provisions that need further implementation by the Dutch government. See for an excellent explanation of the relevant provisions Vlemminx and Meuwese (online source), who make clear that, despite this complexity, the Dutch Constitution’s approach still clearly is a monist one. See also van der Pot et al. 2006, at 697–702.
- 33.
Efthymiou and De Wit 2013, at 81–83.
- 34.
See also Van der Pot, Elzinga and De Lange 2006, at 719–722.
- 35.
Article 120 of the Constitution provides that ‘[t]he constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’
- 36.
For an explanation of the ‘Solange’-jurisprudence, see de Búrca 2010, at 42–44.
- 37.
Efthymiou and de Wit 2013, at 84–88.
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Busstra, M. (2014). The Thin Line Between Deference and Indifference: The Supreme Court of The Netherlands and the Iranian Sanctions Case. In: Bulterman, M., van Genugten, W. (eds) Netherlands Yearbook of International Law 2013. Netherlands Yearbook of International Law, vol 44. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-011-4_10
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