Professional Documents
Culture Documents
Edited by
Marjolein van den Brink
Susanne Burri
Jenny Goldschmidt
Utrecht, 2015
Equality and human rights:
nothing but trouble?
Edited by
Marjolein van den Brink,
Susanne Burri &
Jenny Goldschmidt
Equality and human rights: nothing but trouble?
Liber amicorum Titia Loenen
Marjolein van den Brink, Susanne Burri & Jenny Goldschmidt (eds.)
SIM special 38
A publication of the Netherlands Institute of Human Rights (SIM)
Utrecht University, 2015
ISBN 978-90-393-6307-2
NUR 828
Contents
List of abbreviations ix
Introduction1
Marjolein van den Brink, Susanne Burri and Jenny Goldschmidt
15. Freedom of religion and human rights laws – awkward bedfellows* 283
Peter Cumper
16. Born here. Revocation and the automatic loss of Dutch nationality
in case of terrorist activities* 305
Betty de Hart and Ashley Terlouw
17. Dutch criminal law, conscience and equality 333
Marloes van Noorloos
Contents vii
18. Ms Goldschmidt is it true that you are deaf? That would really
help us to meet the quota! Positive discrimination revisited… 345
Jenny E. Goldschmidt
19. Equality and human rights: new grounds for concern* 359
Lucy Vickers
20. Dogs on the internet: equality and human rights 377
Tina van der Linden-Smith
Part IV – Equality and human rights: how they may come about in
practice385
1. Introduction
On 18 November 2013 a seminar was organised at Utrecht University on the
occasion of the departure of Titia Loenen from the Utrecht School of Law
to Leiden Law School. While Titia Loenen also has a reputation as being an
excellent teacher and, among other things, as the PhD Dean and Director
of Research, the focus of the seminar was on the areas of her research during
the almost 25 years she worked in Utrecht. Titia Loenen’s publications cover
a wide range of legal research areas, including legal theory, gender and the
law, human rights and international law. We selected a theme that can be
seen as a common denominator in her work: the principle of equality and its
relation to (other) human rights. Thus the title of the seminar was ‘Equality
and Human Rights: Nothing but Trouble?’
Lucy Vickers and Eva Brems delivered keynote speeches at this seminar,
which are included in this volume. Moreover, we invited Titia’s (former)
colleagues, students and PhD candidates to contribute to this volume
on the theme, offering a choice between either a peer-reviewed longer
article or a short ‘note’ or column on the topic. We are very pleased that
so many people accepted the invitation, even though some of them finally
had to decline because of too many other commitments (a feature that is
increasingly common among academics today). The editors were assisted by
Eva Visscher-Simon, Charlotte Mol, Peter Morris and Klaartje Hoeberechts
without whom the end result would not have been possible: we thank them
very much for their contributions. Similarly, the anonymous peer reviewers
contributed to the quality by providing critical feedback, and we are most
grateful to them, too.
The resulting volume includes eleven peer-reviewed contributions (these are
marked with an asterisk in the table of contents) and eleven shorter papers.
2 Introduction
Together they not only honour Titia Loenen but also offer a challenging
perspective on a number of related human rights debates that are closely
linked to fundamental challenges in today’s world. These debates can be
divided into several themes. The first theme refers to the contents and essence
of the principle of equality and the relation between this principle and
(other) human rights in general. It includes the debate on the meaning of the
universality of human rights in a ‘world of conflict and diversity’ (which was
the title of the human rights research programme that Titia Loenen directed
in Utrecht). The second theme deals with the relation between human rights
and democracy, and between human rights and sovereignty. The third theme
reflects more specific debates on the position of religion in human rights law,
which protects religion as an autonomous fundamental right (the freedom
of religion) and protects individuals against discrimination because of their
belief. The fourth theme deals with the increasing complexity of the debate
itself, resulting from a number of factors, such as the emergence of new
human rights systems and institutions, the development of new technological
options and of new concepts. Finally, the last theme considers the shift from
standard setting and monitoring to the effective implementation of both
equality and (other) human rights.
All contributions deal with one or more of these issues. Rather than providing
summaries or a comprehensive overview of the debate, we present a bird’s-
eye view of the debates with the aim of increasing the interest and curiosity
of the reader.
The protection of minorities can be seen as the other side of the majority rule
in a democracy. This aspect plays a role in the contributions by Brems and
Widdershoven, the latter attaching more importance to the parliamentary
majority in a democratic society, which should be accorded sufficient weight
by the courts when balancing the interests involved. Brems, on the other
hand, emphasizes the protection of minorities to avoid exclusion.
Marloes van Noorloos’ contribution deals with an aspect related to that of
Cumper, mentioned in the previous section: she refers to the use of criminal
law in cases of offences based on the conscience of the actor. She explains
that the challenge for liberal states ‘is to retain a common idea of justice,
but to accept that people have different conceptions of a good life’. And
even when criminal law is regularly shaped in very general terms, not all
situations can be anticipated. Sometimes exceptions are accepted, so as to
include conceptions of the good of a particular minority group, provided
that these exceptions do not affect majority rules or open the door to more
general exceptions. This brings us to another dimension of the democratic
discourse.
that trans women / parents are not treated equally. Thus, in the short term,
human rights have led to ‘equality trouble’ in the area of affiliation law. In
the long term, however, it is to be hoped that changes in the system and
terminology of this legal area will be beneficial to both human rights and
equality.
Also in the area of the reconciliation of work and care, new categories are
emerging. Susanne Burri discusses the relevant EU legislation and case
law. She shows how parents in what looks like very similar situations, are
sometimes nonetheless treated differently. Burri argues that this is primarily
due to issues of comparability and a lack of specific rights that are geared
toward specific new groups, such as the commissioning parents in cases of
surrogacy arrangements.
5.3. Intersectionality
A topic related to the complexity of categorisation, and the resulting risk of
reaffirming difference and exclusion, is the recognition of intersectionality,
that is the fact that in many cases more than one ground of discrimination
is at stake. Individuals combine characteristics such as sex, race, disability
and religious beliefs, and people may be discriminated against because of
a combination thereof. Merel Jonker analyses different forms of multiple
discrimination and the differences in the approaches taken by the CJEU and
some selected national institutions. Tackling this form of discrimination is
seen as a challenge because the instruments developed to establish whether
alleged discrimination has actually occurred cannot be applied so easily:
this is especially so because of the practice of looking for an appropriate
comparator. Jonker explains how contextual approaches, used for example
by the CJEU and by the Dutch national equality body, can be helpful to
overcome this challenge.
Also the contributions by Van Ooijen (religion and other grounds) and
Brouwer and De Vries (third state nationals versus EU nationals) reflect the
need for a less dichotomous and more inclusive approach.
14 Introduction
6.1. Stereotyping
Ineke Boerefijn investigates the contribution of the UN Women’s Rights
Committee (the CEDAW Committee) to a gender-sensitive interpretation
of the human rights related to the issue of violence against women, such
as the right to be free from ill-treatment and the right to a fair trial. She
sketches a picture of the progressive development of the definition of duties
and responsibilities to protect and guarantee the rights of women in case of
violence, both in the reporting procedures and in the individual complaints
procedure of (especially) CEDAW. One of the aspects she highlights is the
consideration of the impact of stereotyping on the right to a fair trial if a
decision or judgement reflects inflexible standards in the consideration of
how women should behave.
Stereotyping is also an aspect of the critical reflection by Fleur van Leeuwen
on the first judgement of the ECtHR on the right to home birth, conceiving
the possibility of gender discrimination as a root cause for the denial of the
7. Effective implementation
The need to find effective ways to implement the human rights and equality
norms is dealt with in several contributions from different disciplinary
perspectives. Now that the codification of the norms has been realized
in so many national and international documents and monitoring and
supervisory institutions, like treaty bodies, courts and national human rights
institutions, have been established, the emphasis is on what is needed to turn
these norms, reports and decisions into reality.
16 Introduction
by SGP women. Research has shown that the women involved conceived the
external pressure as detrimental to the process of emancipation.
This is what is also reflected in the contribution of Brems, on the basis of
her interviews with women affected by the burqa ban, despite the fact that
the ban itself was also based on emancipatory arguments raised by others.
The women themselves did not perceive the ban as a contribution to their
autonomy. Thus, the framing of a case by outsiders can have different kinds
of impacts.
A particular aspect in the debate over effectiveness has to do with the role
of the different actors. We have already mentioned that the co-existence of
several legal fora can provide opportunities for ‘forum shopping’ and thus
may have a levelling effect when the different institutions subsequently
incorporate the findings of the others. An interesting aspect in the debate on
the practice of human rights law is the increasing role of local governments
in the realisation of (international) human rights law: this is analysed in the
contribution of Barbara Oomen. She sees cities as important stakeholders
in the implementation strategy. Initiatives to organise ‘Human Rights
Cities’, to incorporate human rights awareness at the local level and to use
the knowledge of the citizens themselves to set up effective policies, can be
seen as positive achievements. However, as Oomen explains, it may create
new inequalities between cities that do have such a policy and cities that
do not. In the latter, in particular, less powerful groups such as disabled
people, migrants, women and children may be worse off. Despite this risk,
there seems to be a great potential in the development of local strategies to
concretise abstract human rights norms. The local experiences also show, as
emphasized by Van Rossum, the importance of the involvement of all actors
in the field: public institutions, private actors, NGOs and experts.
8. To be continued…
Above an impression has been given of the different perspectives on equality
and (other) human rights discussed in this volume. The contributions
tackle some of the major themes in the current debate, reflecting different
perspectives applied to different topics. The question whether there is
‘nothing but trouble’ can easily be answered with a positive reply, because
18 Introduction
there ìs a great deal of trouble, not only where the fundamental rights
conflict with each other, but also where the increasing complexity of both
human rights systems and the world around us add new dimensions to old
questions. Human rights will never be an easy possession. But there are
also positive developments, such as the recognition of same-sex relations,
the recognition of violence against women as a serious violation of equality
as well as of other human rights of women. The issues have become more
complex, and we can only hope that it is the confusion related to the new
circumstances that causes the negative consequences and that here too, a fair
balance will be developed.
The realization of human rights demands the involvement of all actors, public
and private institutions, NGOs, academics and independent institutions at
all levels.
Academics have a role to play: this volume raises at least as many questions
as it answers. Therefore, we are confident that Titia Loenen is certain to take
up some of these in her future research, thus she will remain the source of
inspiration she has been thus far, as is clearly reflected in this volume.
Part I
1. Introduction
In May 2003, at Mofid University in Iran’s holy city of Qom, an institution
for the academic education of Islamic clerics, I had the pleasure of listening
to Titia Loenen’s presentation of her paper for a Conference Workshop on
‘Human Rights: Universality versus Cultural Diversity.’ It was very well
attended, particularly by young women from all over Iran, wearing – like
Titia herself – their obligatory, yet joyous headscarves. What Professor
Loenen addressed was Human Rights, Universality and Gender Bias.1
Bypassing secondary issues such as the legally mandated female attire, her
critique was on the international human rights framework, questioning the
true universality of its nature. Her point was that the Universal Declaration
of Human Rights (1948), the Charter-Based declarations, and the Treaty-
Based instruments that followed reflect an inherent assumption that the
human being is male. Since the entire post-WWII venture is founded upon
the non-discrimination principle, women ought to be protected by these
rights no less than men. Yet, how have these rights actually been defined?
With a central focus on the risks people face in the public sphere, which
men are generally concerned about, Loenen concluded. Now attention
is to be drawn to the private sphere, the domain where women tend to
face substantial risks. Naturally, she referred here to domestic violence,
pointing to ‘the invisibility of human rights violations in the private sphere.’
Domestic violence, that ‘regretfully universal phenomenon,’ is absent from
the International Bill of Human Rights, and, one may add, even from the
Convention for the Elimination of All Forms of Discrimination Against
1 Loenen 2005.
22 The crowbar to universality: implications of ‘equal in rights’
… I would say we should use the dynamics of the human rights system to
do away with gender bias and to make it truly universal. The image is one
of restructuring and adding, of incorporating and extending the human
rights building, not of demolishing and building anew from scratch.11
I concur. All too often well-founded criticism of the global human rights
venture culminates in proposals for new paradigms. What is neglected there
is both the positive reception of human rights within the international
community and the flexibility of the international venture to protect
everyone’s basic human dignity by law. Following Loenen’s advice, this
chapter will take the dynamic nature of international human rights in
general, the Universal Declaration in particular, and more specifically the
First Article, as a starting point to a political economy approach towards
the significance and implications of that crucial phrase equal in rights. This
is a clause on which there is hardly any literature, let alone jurisprudence.12
recommendations adopted by human rights treaty bodies, UN Doc. HRI/GEN/1/Rev.9, Vol. II, 331-336.
11 Loenen 2005, at p. 594.
12 Several treaty-based committees have recognized the necessity of equality, but the result of all these
expressions of equality in the Committees’ Comments has been extensive rhetorical output with
essentially no implemented outcomes. The ESCR Committee asserts that women have an equal
right to the enjoyment of rights stating, ‘these may include the adoption of temporary special
measures to accelerate women’s equal enjoyment of their rights, gender audits, and gender-specific
allocation of resources.’ (CESCR, General comment No. 16, ‘The equal right of men and women
to the enjoyment of all economic, social and cultural rights,’ (2005)). Apparently, it is considered
not enough that women are equal in rights, so the Committee renders this principle hollow by
claiming that women are also entitled to ‘equal enjoyment of rights.’ If women are already equal in
rights, then why must they also have an equal right to the enjoyment of them? Parsing out equality
to such an extent has the opposite effect of promoting equality – but creates a false division that
sanctions difference – thereby justifying inequality and perpetuating the status quo. Similarly, the
CEDAW Committee affirmed ‘the equality of human rights for women and men in society and
in the family,’ and that variations in laws may have the impact of ‘restricting [women’s] rights to
equal status and responsibility within marriage.’ (CEDAW, General Recommendation No. 21,
‘Equality in marriage and family relations, (1994)). The CAT Committee emphasized that ‘…
equal weight to the testimony of women and girls’ should be afforded during judicial proceedings
and that vulnerable groups, including LGBT ‘… people, must be treated fairly and equally …’
(CAT, General comment No. 3, ‘Implementation of article 14 by States parties,’ (2012)). The CRC
Committee expressed concern ‘… about the difficulties faced by particular categories of children in
relation to enjoyment and conditions of equality of the rights defined in article 31, especially girls,
poor children, children with disabilities, indigenous children, children belonging to minorities,
among others.’ (CRC, General comment No. 17, ‘The right of the child to rest, leisure, play,
recreational activities, cultural life and the arts,’ (2013)), The CMW Committee acknowledged
24 The crowbar to universality: implications of ‘equal in rights’
the right of migrants to ‘… enjoy equal treatment to that of nationals in respect of remuneration,
other conditions of work and terms of employment.’ They further explained that ‘[t]he equal
treatment principle also covers any other matter that, according to national law and practice, is
considered a working condition or term of employment, such as maternity protection.’ (CMW,
General comment No. 2, ‘The rights of migrant workers in an irregular situation and members of
their families,’ (2013)). The CRPD even redundantly recognized previous comments, stating ‘[t]he
Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights
and the Convention on the Rights of Persons with Disabilities each specify that the right to equal
recognition before the law is operative ‘everywhere.’ (CRPD General comment No.1, ‘Article 12:
Equal recognition before the law,’ (2014)).
13 Cf. Von Ihering, at pp. 49-50.
Bas de Gaay Fortman 25
West,’ so did the struggle for the inalienability of rights. Indeed, if rights
pertaining to freedoms and entitlements derived from people’s basic human
dignity could be simply taken away based upon ‘raisons d’état,’ they would
lose all meaning. Thus, the history of the human rights endeavour became
a struggle for the rule of law; in the sense that a state is itself subject to
established legality, too, and committed to respect the rights of its citizens
including their human rights.
Actually, however, this is just the account of a struggle to realise one
particular category of fundamental rights, called civil and political rights,
intended to protect fundamental freedoms primarily against state power. In
terms of realising peoples’ basic human dignity in a confrontational context,
the struggles to implement a second category called economic, social and
cultural rights, meant to ensure peoples’ basic entitlements, are no less
crucial, and that applies to the whole world including ‘the West.’ Illustrative
in this respect is the ‘right to work’ (UDHR Art. 23), a ‘universally declared’
right that is devoid of legal significance in any kind of jurisdiction in the
sense of grounding concrete claims to employment. Additionally, the ‘right
to work’ appears to be practically absent from day-to-day politics in whatever
situation of gross and systemic unemployment.14
Moreover, while first restricted to citizens’ rights, international efforts have
extended the endeavour to realise fundamental freedoms protecting people
against abuse of power and to ensure basic entitlements to sustain daily
livelihoods, to all human beings. Naturally, this happens to be a mega struggle
too, a meta-Western one for that matter, and not only a battle against ‘the
West,’ as in the case of the slave trade, slavery, and of colonialism in all
its manifestations of oppression of ‘the others’ (the natives). Notably, the
struggle against such a systemic denial of universal human rights has been
full of contradictions. Thus, in the Declaration of Independence, 1776, the
United States plainly declared:
14 Typically, in the United States the ‘Right to Work principle’, a guiding concept of the National
Right to Work Legal Defense Foundation, affirms the right of every American to work for a living
without being compelled to belong to a union. Thus, ‘Right to Work laws’, as have been enacted in
24 states, in line with section 14 (b) of the Taft-Heartly Act rather than guaranteeing employment
just guarantee that ‘no person can be compelled, as a condition of employment, to join or not to
join, nor to pay dues to a labor union’.
26 The crowbar to universality: implications of ‘equal in rights’
We hold these Truths to be self-evident, that all Men are created equal,
that they are endowed, by their CREATOR, with certain unalienable
Rights, that among these are Life, Liberty, and the Pursuit of Happiness.
That to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed …
15 In 1848, women and men (Frederick Douglass, for one, attended) who were working on abolition
also held a conference regarding women’s issues, which resulted in ‘The Declaration of Sentiments,
Seneca Falls Conference, 1848’ where they re-wrote the Declaration of Independence to include
women as follows: ‘We hold these truths to be self-evident: that all men and women are created
equal; that they are endowed by their Creator with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted,
deriving their just powers from the consent of the governed.’ Modern History Sourcebook, Fordham
University, available at: www.fordham.edu/halsall/mod/senecafalls.asp.
16 Grimké 1838, at p. 10.
Bas de Gaay Fortman 27
that draft had been due to its ‘vehement philippic against Negro slavery.’17
Strikingly, it is that erased clause which convinced Angelina Grimké that all
fundamental freedoms grow out of our moral nature and that as moral beings
essentially we all have the same rights or, in other words, we are all ‘equal in
rights.’ Consequently, this is a normative statement, apparently derived from
a struggle for true universality. As a foundational value it has found its place
in the Universal Declaration of Human Rights of 1948 (UDHR).
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.19
Notably, every word in the UDHR is important, even seemingly small words
such as ‘equal’ and ‘all,’ since the drafting of the UDHR was one in which,
‘… delegates ‘thrashed out’ their differences and poured over the draft text
‘line by line’ and ‘word by word.’20 This scrutiny is to be understood in the
light of that global endeavour to find a moral-political basis for universal
recognition and equal protection of the dignity of each and every human
being, which the international community was determined to get enacted as
its main goal after the moral-political catastrophe of Nazism and the ensuing
World War.
Although nearly every other article in the UDHR has been codified into
a treaty and served as the basis for jurisprudence,21 there is hardly any
jurisprudence on Article 1 UDHR (Article 1), however.22 In the scarce
literature on this foundational text, two major issues are addressed: origin
and inclusion, and basic values. A primary focus, then, is on the drafting
process.23 The adoption of Article 1 ‘reflects the inspirational nature of
the project,’ as one author put it.24 It was included, he writes, ‘only after
much controversy about whether it was just stating the obvious, or whether
it should be included in the preamble rather than the main text […] The
reason for including it in the main text, then, is to state firmly the basis of
21 National courts throughout the world have looked to the UDHR as a source of law. For example,
in Tayazuddin and another v. Bangladesh, the Bangladesh Supreme Court used Article 3 of the
UDHR as well as the Bangladesh Constitution to hold that the government was responsible for
protecting victim rights, and not just the rights of the accused, in criminal trials in order to have
free and fair trials. As one scholar describes, ‘Through the reference to Article 3 of the UDHR,
the court explained that the right to life, liberty and security of a person applies as much to the
victim as to the accused, so that the court could weigh the liberty of the accused against the
sense of security of the victim. Considering the gravity of the crime alleged, the court held that
the right of victims to security and freedom from fear would prevail over that of the accused.’
(Md. Mostafa Hosain, ‘Application of UDHR by Supreme Court of Bangladesh: Analysis of
Judgments,’ January 13, 2013, available at: www.clcbd.org/journal/13.html). In South Africa, in
a case regarding housing for the homeless, Judge Yacoob declared, ‘The proposition that rights are
interrelated and are all equally important is not merely a theoretical postulate. The concept has
immense human and practical significance in a society founded on human dignity, equality and
freedom.’ (as quoted by De Gaay Fortman 2011, at p. 159). Even in the United States, where
incorporating international human rights domestically has encountered resistance, courts have
used the UDHR in decisions, including the Supreme Courts of California, Connecticut, Oregon,
and West Virginia. The UDHR has been cited regarding rights to education, a minimum standard
of living, protecting prisoners, privacy, freedom of movement, and freedom from discrimination as
well as cruel and unusual punishment. (Pauley v. Kelly, 162 W. Va. 672, 679, 255 S.E.2d 859, 864
(1979); Moore v. Ganim, 233 Conn. 557, 637, 660 A.2d 742, 781 (1995); Sterling v. Cupp, 290
Or. 611, 620, 625 P.2d 123, 130 (1981); Rodriguez Fernandez v. Wilkinson, 505 F. Supp. 787,
797 (D. Kan. 1980); City of Santa Barbara v. Adamson, 27 Cal. 3d 123, 130, 610 P.2d 436, 440
(1980); Am. Nat’l Ins. Co. v. Fair Employment & Hous. Com., 32 Cal. 3d 603, 608, 651 P.2d
1151, 1154 (1982); In re White, 97 Cal. App. 3d 141, 148, 158 Cal. Rptr. 562, 567 (Ct. App.
1979)).
22 It is primarily ‘human dignity’ that plays its part in judicial decision-making, but only in cases in
which national and/or regional sources also refer to this foundational value.
23 On the origin and inclusion of Art. 1 UDHR see, notably, Morsink 1999; Facing History and
Ourselves National Foundation; Lindholm 1992; Morsink’s book review of that volume,
Morsink 1995; Waltz 2002; Bailey; Danchin.
24 Bailey.
Bas de Gaay Fortman 29
all human rights, the rationality of human persons and their obligation to
deal fairly with everyone else, regardless of race, sex, wealth and so on.’25 As
Eleanor Roosevelt acknowledged, during the drafting of the UDHR, ‘[s]he
believed in an international community that respected the value and variety
of all human life where no nation or individual person could be truly free as
long as others were not. Consequently, as she expressed herself in thought
and action it became clear that her commitment to human rights embraced
presidents and ambassadors as well as the ‘everyday people’ of the world, and
extended from the large citadels of government power to tiny hamlets and
villages.’26 According to her, it was designed ‘… as a common standard valid
‘for all people and all nations.’’27
Actually, the middle part of the text – on the human endowment with reason
and conscience, and the subsequent duty to treat others as fellows – was
added somewhat later at the drafting stage after there had been an argument
as to its factual basis. Deliberately, then, the article is voiced as a matter of
faith rather than fact. In the General Assembly, the term ‘by nature’ – in
respect of the endowing force – was deleted as the gist of the Declaration
was to keep disputed (‘metaphysical’)28 beliefs out of a universal declaration.
(In a similar vein, the General Assembly rejected the Dutch delegate Leo
Beaufort’s amendment to the preamble, referring to ‘man’s divine origin and
immortal destiny’).29 Finally, the statement of duty – ‘should act towards one
another in a spirit of brotherhood’ – was intentionally placed at the end. A
proposed phrase referring to ‘duties to the community’ was shifted to Article
29.30
Obviously then, Article 1 was framed as opening articles of statutes and
constitutions commonly are, in both public and private settings, namely
as jus divinum in the metaphorical sense of a fundamental statement of
faith and mission – a statement of principles – as opposed to jus positivum,
implying concrete norms and rules enacted to be observed and if necessary
31 In canon law, an amazing distinction is made between jus divinum positivum and jus divinum
naturale. Notably, the term jus divinum is used here in a purely metaphorical sense, referring to a
statement of faith.
32 United Nations, ‘Cyber School Bus,’ available at: http://www.un.org/cyberschoolbus/humanrights/
declaration/1.asp.
33 De Blois 1998, at p. 531.
34 See De Gaay Fortman 2014b.
Bas de Gaay Fortman 31
Markedly, human dignity qualifies the three major human rights principles
with the adjective all, while also connecting them as branches from the
same tree. This crucial link between liberty, equality and solidarity implies
that there cannot be a hierarchy of fundamental rights and their underlying
values; a balancing exercise between different interests behind claims in the
light of all relevant (competing) rights and core values is, indeed, vital. As
was noted in a joint dissenting opinion in a European Court of Human
Rights (ECtHR) case, ‘the Court must decide whether a fair balance has
been struck between competing interests. It is not, therefore, a question
of deciding which interest must, in a given case take absolute precedence
over others […] It must perform a ‘balancing of interests’ test and examine
whether in the present case the French system [the legal system at issue],
struck a reasonable balance between the competing rights and interests.’35
35 ECtHR, Odièvre v. France 13 February 2003 (Appl.no. 42326/98), joint dissenting opinion of
32 The crowbar to universality: implications of ‘equal in rights’
Thus, in actual practice the three basic values also qualify one another,
each with its own core perspective. Indeed, Ronald Dworkin calls here for
‘solutions to simultaneous equations.’36 It is important, in other words, not to
play one value out against another (liberty versus equality, for example) but
to aim at simultaneous realisation.
judges Wildhaber, Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonpää.
36 Dworkin 2011, at p. 3. Emphasis added.
37 It is a bit odd to grant people rights to enjoy rights. Perhaps typical of the soft nature of the
international human rights venture.
38 As quoted by Pojman and Westmoreland 1997, at p. 2.
39 Pojman and Westmoreland 1997, at p. 3.
Bas de Gaay Fortman 33
43 Notably, the last two sentences constitute an English translation of Article 1 of the Dutch
Constitution. Strategically, the term ‘or on any grounds whatsoever’ should suffice.
44 Cole 1999, at p. 5.
45 Cole 1999, at p. 5.
Bas de Gaay Fortman 35
Indeed, formal rights acquisition may even result in some negative effect
on public opinion when it comes to substantive equality. Thus, once the
American civil rights movement had achieved equal citizenship, its claims
regarding substantive equality were seen as less urgent.50 Similarly, after
meaningfully achieving formal equality goals the women’s rights movement
Second, in the same vein ‘… individuals have a right to equal concern and
respect in the design and administration of the political institutions that
govern them.’55 This, again, may be seen as a precept of substantive equality
derived from the ‘equal in rights’ principle. It entails human rights criteria
to be applied to administrative budgeting at all levels of government. Not
surprisingly, then, an international non-governmental organization called
Equalinrights used to focus particularly on ‘budgeting rights.’56 Several other
INGOs as well as UN treaty bodies have paid explicit attention to human
rights budgeting in relation to many different states parties, e.g. the CRC
Committee.
Exemplary in this respect is a doctoral study by Yanqing Hong on qualitative
inequality in basic education between urban and rural areas in China
examined in the light of the human right to education and the equal in
rights principle.57 Political economy analysis showed that the contextual
background to this inequality in rights lies in the organization of public
finance. Strikingly, although this analysis demonstrated evident systemic
violations of the ICESCR, which China had ratified, this appears to be an
issue on which the country has never been questioned in any UN human
rights setting.
Article 1: liberty, equality and solidarity. Such principles underline the legitimacy of any use of
power that affects people’s lives and living conditions.
55 Dworkin 1977, at p. 180. Emphasis added.
56 Equalinrights (2004-2011) was a joint initiative of the Dutch Development Agency ICCO and
the Netherlands Institute of Human Rights. See www.aprodev.eu/files/Development_policy/Dev-
RBA/budgeting_human_rights-Jan%202007.pdf. This methodology is also available through other
means. See the UN Practitioners’ portal hrbaportal.org/archives/tools/budgeting-human-rights.
57 Hong 2011.
58 De Gaay Fortman 2011. See also Arts and Mihyo 2003.
38 The crowbar to universality: implications of ‘equal in rights’
59 S. Mansoob Murshed and Scott Gates call this spatial-horizontal inequality. See their article,
Mansoob Murshed and Gates 2005. See also Cederman, Gleditsch and Buhaug 2013, at
p. 30 ff.
60 United Nations Development Program 1998, at p. 27.
61 Narayan et al. 2000 and Chambers et al. 2000.
40 The crowbar to universality: implications of ‘equal in rights’
BIBLIOGRAPHY
Arts, K. and Mihyo, M. (eds.), Responding to the Human Rights Deficit. Essays in
Honour of Bas de Gaay Fortman, Kluwer Law International, The Hague, 2003.
Bailey, P., ‘The Creation of the Universal Declaration of Human Rights’, available
at: www.universalrights.net/main/creation.htm.
Cederman, L-E., Gleditsch, K.S. and Buhaug, H., Inequality, Grievances and
Civil War, Cambridge University Press, Cambridge, 2013.
Chambers, R., Narayan, D., Shah, M.K. and Petesch, P., Voices of the Poor. Crying
Out for Change, Oxford University Press (for the World Bank), Oxford, 2000.
Cole, D., No Equal Justice: Race and Class in the American Criminal Justice System,
The New Press, New York, 1999.
Danchin, P., ‘Article 1 UDHR, drafting history’, available at: www.ccnmtl.
columbia.edu/projects/mmt/udhr/article_1/drafting_history.html.
De Blois, M., ‘Self-Determination or Human Dignity: The Core Principle of
Human Rights’, in: Hendriks, A. and Smith, J. (eds), To Baehr in Our Minds:
Essays on Human Rights from the Heart of the Netherlands, Netherlands Institute
of Human Rights, Utrecht, 1998.
Dworkin, R., Taking Rights Seriously, Duckworth & Co., London, 1977.
Dworkin, R., Justice for Hedgehogs, The Belknap Press of Harvard University Press,
Cambridge, 2011.
Eskridge Jr, W.N., ‘Some Effects of Identity-Based Social Movements on
Constitutional Law in the Twentieth Century’, Michigan Law Review, Vol. 100,
No. 8, 2002, pp. 2062-2407.
Facing History and Ourselves National Foundation, ‘Fundamental Freedoms:
Eleanor Roosevelt and the Universal Declaration of Human Rights – Part III: The
Universal Declaration of Human Rights’, available at: www.facinghistory.org.
Finkelman, P., Slavery and the Founders: Race and Liberty in the Age of Jefferson,
M.E. Sharpe, New York, 2001.
Freeman, A., ‘Racism, Rights and the Quest for Equality of Opportunity: A Critical
Legal Essay’, Harvard Civil Rights-Civil Liberties Law Review, Vol. 23, No. 2,
1988, pp. 295-392.
de Gaay Fortman, B., Political Economy of Human Rights: Rights, Realities and
Realization, Routledge, Abingdon, 2011.
de Gaay Fortman, B., Political Economy of Human Rights: Rights, Realities and
Realization, Routledge, London/New York, paperback reprint 2012.
42 The crowbar to universality: implications of ‘equal in rights’
1. Introduction
The Universal Declaration of Human Rights famously declares that ‘all
human beings are born free and equal in dignity and rights.’2 The italicized
phrase can certainly be regarded as one of the most important guiding
thoughts of the contemporary practice of human rights. Yet at the same
time the protection that is actually provided by human rights varies widely
across countries. The right to health, for example, will get a person far fewer
protections – and of lesser quality – in South Africa than in, say, Germany.
For example, in Germany this human right would likely translate into the
provision of renal dialysis for those who need it; in South Africa it is very
unlikely that it would.3 Furthermore, such differences arise because of deep-
seated features of the current way of organizing human-rights protection
– such as the central role given to states, in a world where states vary greatly
in (among other things) wealth. And the differences do not only concern
socio-economic rights but may – where they arise on account of wealth
differences, for example – also concern civil and political rights, such as
1 Some of the themes of the present essay were first developed in my article Philips 2014. ‘On Setting
Priorities among Human Rights,’ (2014) 15 Human Rights Review 239–257. I thank Arienne
Mulder for agreeing to write a BA thesis on the topics of this article under my supervision –
which kept me thinking about the subject. Many thanks also to Marjolein van den Brink, Jenny
Goldschmidt, and two anonymous reviewers for some excellent remarks. Last but certainly not
least, many thanks to Titia Loenen – along with her reading group on human rights – for thought-
provoking and stimulating discussions over several years.
2 Universal Declaration of Human Rights, Art. 1 (emphasis added).
3 The example is inspired by Albie Sachs’s discussion of the constitutional right to health in South
Africa. See Sachs 2009, at p. 161ff.
46 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
the right to security; consider, for example, the amount of money spent on
training the police.
This state of affairs seems problematic. The meaning of all human beings
being ‘equal in dignity and rights’ (or, as I will also put it, ‘fundamentally
equal’) is not exactly clear –something to which I will extensively come back
below. However, whatever precisely its meaning, there is a real question
whether it could be compatible with significant inequalities among humans
with regard to the protection of very important interests. On the face of it,
further explanation is required if one is to maintain that human beings are
fundamentally equal yet it is all right for some human beings to receive far
less protection of their urgent interests (such as health) than others.4 In this
essay, I want to investigate whether the two – fundamental equality and the
unequal protection of urgent interests – might be compatible after all. It will
be concluded that there are severe limits to their compatibility (Section 2).
I will go on to argue that this has implications for how we should conceive
of the duty bearers of human rights (Section 3). In particular, one cannot
stick to states as the main and primary duty bearers of human rights – each
state for the people within its jurisdiction – with other agents only being
subsidiary duty bearers, playing a relatively minor role, or fall-back duty
bearers which only come into the picture where states fail to act as they
should.
The approach of this essay will be philosophical rather than juridical. That is
to say, it will draw on all reasons that seem appropriate rather than only on
reasons that are deemed admissible in a juridical framework. Its notion of
human rights will be philosophical, too: this notion will not – in a manner
to be explained in detail in a moment – be bound to juridical meanings and
uses but can depart from these if there are good reasons to do so.
For the sake of clarity, let me say a little more about the particular
philosophical conception of human rights which I shall use.5 Some main
elements of this conception are the following. First, human beings are
4 For a clarification of the notion of ‘urgent interests’ see Section 2.1 below. For the question of
which interests can plausibly count as urgent, see Section 2.3.
5 It is generally beyond the scope of the present essay to defend this conception of human rights
against alternatives. It will be argued, however, that this conception provides a particularly strong
interpretation of the post-WWII practice of human rights. See Section 3.2 below.
Jos Philips 47
6 More particularly, the threats in question may be called standard threats – a notion which refers,
among other things, to the threats being common and predictable. Cf. Shue 1996, at pp. 29-34.
I assume that in the case of human rights, the interests on which these threats bear are urgent for
wide categories of humans across time and place.
7 As for the UDHR: when it declares, for example, a right to a fair trial for everyone, I think that
it demands that, for all humans, there are protections which can reasonably count as fulfilling
this right. It does not demand that the protections for all humans are equal. Incidentally, if this
should be wrong, and if the UDHR does demand equal protections, many questions asked in
this article will remain standing: is unequal protection – as it is systematically engendered by the
current institutional set-up – justifiable if we assume fundamental equality? And, can a plausible
interpretation of the practice of human rights abandon states as duty bearers to some considerable
extent?
8 What part of that wealth they may plausibly consume must be discussed on another occasion.
48 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
second, more concrete level, something would change. The background idea
is that, at a concrete level, human rights can only demand such protections
as the wealth of the world as a whole could amply afford if everyone were
to receive them. Put differently: although human rights do not conceptually
imply equal protection, I assume that human rights cannot plausibly require
such ambitious protections that the world as a whole would not even amply
have the wealth to provide them to everyone.
Furthermore, the philosophical conception of human rights which I will use
assumes that when we speak of human rights, we have some idea about who is
to bear the duties that come with such rights.9 And finally, it will be assumed
that there may be other duty bearers of human rights than states (each state
for its own people). Foreign states, intergovernmental organizations, NGOs,
business corporations etc. might also be duty bearers. This does not mean, of
course, that it is always – or even usually – a good idea to assign human rights
duties to, say, NGOs. Nor does it settle the question of how to distribute
duties in an acceptable way or, put differently, the question of how to set up a
plausible division of moral labour.10 These are all very large questions which
the present essay can obviously not answer, although it will have some things
to say about them.
So much by way of a clarification of the philosophical conception of human
rights that will be used in this essay. Let us now return to our main topic:
whether fundamental equality could plausibly go together with unequal
protection.
9 On the other hand, we can speak of human rights even when we cannot get these duty bearers to
behave as they should. See Nickel 2007, at p. 29ff.
10 Important general considerations that bear on the assignment of duties, i.c. of human rights
realization, include the capacity to carry out a task, and causal contribution to a problem (to there
being a task in the first place). Cf. Miller 2005b; Shue 1996.
Jos Philips 49
inequality is at least foreseen and often more than that – e.g. is systematically
engendered by the ‘regime’ of protection?
As said, it is not exactly clear what it means to say that human beings are
fundamentally equal. Nonetheless, I will argue that a plausible definition
of fundamental equality denies that fundamental equality conceptually
implies the equal protection of urgent interests. (If it should be otherwise
and there were a conceptual implication, our question would be answered
immediately.)
To show that there is no conceptual implication I will now further explain my
usage of ‘equal[ity] in dignity and rights’ or ‘fundamental equality’ (as said,
I will use these two expressions interchangeably).11 I take these expressions
to mean that human beings matter a lot and that they all matter a lot (‘equal
dignity’). Furthermore, this translates, for all of them, into their being
justified in making certain claims (‘equal rights’). To be sure, not all claims are
envisaged by the human rights framework but only those claims that relate
to goods (and a level of goods) without which human life could arguably not
normally go minimally well.12 Examples would typically include an adequate
quantity and quality of food, freedom of movement within certain confines,
a certain level of literacy etc. (I will refer to these goods as urgent interests.)13
Certain sorts and levels of protection of these interests should be provided,
and in such a way that everyone counts for one and no one counts for more
than one. But this is as yet a rather vague requirement. In particular, it does
not by definition mean that equal protection must be provided, in the sense
that people receive the same protection of their urgent interests if their need
11 In what follows, I will only be concerned with the phrase ‘equal[ity] in dignity and rights’ as a
whole, not with dignity and rights as separate concepts (see footnote 15 below). Furthermore,
I will explain my interpretation of this phrase but it is beyond the present scope to defend this
interpretation vis-à-vis alternatives. In any case, I do think that my interpretation is plausibly in
line with the UDHR. See e.g. Morsink 1999; Glendon 2001.
12 Furthermore, human rights will typically only deal with goods that apply to wide categories of people
across all times and places. What it is for a life to ‘go minimally well’ would certainly need more
discussion. One possibility is to draw on John Rawls’s approach and say that people should, among
other things, be able to form, carry out and revise a conception of the good. See Rawls 2000.
13 Thus I will use such expressions as basic needs, fundamental goods and urgent interests
interchangeably. Although distinctions (of a more or less technical sort) might of course be
made between these concepts, my interchangeable usage is not uncommon in the philosophical
literature. Cf. Tsai 2014, at p. 81.
50 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
for protection is the same.14 (Equal protection, as I use this expression, does
not imply that people with different needs for protection receive the same
protection; it may rather imply that they receive differential protection,
which in some plausible way tracks the differences in what they need.) To
give a – perhaps somewhat contentious – example, suppose that all human
beings were the children of one mother.15 They matter a lot to her and they all
matter equally, in the sense that all count for one and no one counts for more
than one. And this gives rise, for all of them, to certain claims to have their
urgent interests protected. This, however, need not imply that they have a
claim to receiving the same protection even if their basic needs are the same.
Why not? The reason is, generally speaking, that there may be valid reasons
– even in the face of similar needs – to provide more protection to one child
than to the other. However, in the absence of such reasons they should receive
the same – if we genuinely think they are all very important and no one is
to count for more than one. In other words: for it to be justified, in these
circumstances, to provide the children with unequal protection, we require
good reasons for this.
To return to our immediate subject: there is logical space for saying that
fundamental equality need not translate into equal protection; but those
who wish to defend unequal protection in the face of fundamental equality
14 Some suitable division of moral labour would then determine who is to provide this protection.
I will also say that if such a division of labour is in place, and people receive equal protection,
they are treated with equal concern. Incidentally, it may be more accurate to speak of equivalent
protection rather than equal protection. The basic idea of equal protection is that everyone ends
up with equally good protection of their interests but this need not be done in the same way
everywhere, and it may not even always concern the exact same threats (for example, a fair trial
may be guaranteed by different institutional arrangements which are generally equally good overall
but which have different advantages and disadvantages). However, I will continue to speak of equal
protection.
15 The example may be contentious in the sense (among other things) that in a mother-child case
we would not normally primarily speak of rights; we would generally only do this in institutional
contexts. Still, the example can in important respects illustrate what could be meant by ‘equal[ity]
in dignity and rights.’ Again, I have only tried to explain the meaning of this expression as a whole.
I will not consider the concept of dignity separately; many philosophical questions on this concept
are as yet unanswered and it is beyond the scope of this article to try to answer them. For example,
is dignity to be regarded as the ground of human rights, and if so, how can it steer a middle road
between being too empty (and thus rather useless as a ground) and being too substantive and close
to the rights themselves? Cf. for somewhat similar dilemmas Beitz 2013.
Jos Philips 51
will need to make their case. They will have to provide good enough reasons.
The question we must now ask is whether they can do this.
16 For literature references see notes 22 and 27 below. Both kinds of reasons involve large-scale
philosophical debates. In the present context, only the basic shape of the relevant debates can be
provided. (Incidentally, I will leave aside such complications as those arising from the possibility
– if any – to forfeit rights.).
17 That is, they are unconvincing for unequal protections that concern matters which would in rich
countries be regarded as matters of human rights (e.g. the provision of dialysis for those who need
it). For other kinds of unequal protections the story may sometimes be different; but it is beyond
the scope of this article to consider those.
18 Cases where the choice is between, say, dialysis for insiders or for outsiders (and where they both
cannot receive it) are very difficult. Perhaps insiders may often justifiably get precedence here.
Importantly, however, such conflicts will not arise for human rights matters – inasmuch as the
level of protection required under human rights will – also in rich countries – be tuned towards
what the wealth and resources of the globe as a whole can amply afford. What needs to concern us,
rather, are conflicts between the global provision of such things as dialysis (=protections of urgent
interests at a level near to what rich countries regard as a matter of human rights) and attending to
other interests of rich citizens.
52 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
the taxes that help sustain a health-care system,19 may have a greater claim
to health-care provisions than outsiders, even in cases where the choice is
between using the tax money for very urgent care for outsiders (e.g. dialysis)
and less urgent care for citizens (say, specific kinds of treatment for non-
life threatening, chronic diseases).20 If so, the world’s poor may, where the
protection of their urgent interests depends on assistance by rich countries,
justifiably end up receiving less such protection – less than the level which
rich countries regard, for their citizens, as a matter of human rights (e.g.
dialysis).21
Yet I think that reasons of special relationships are not very likely to succeed
in providing the required justification. Let me outline why – while noting
that the literature about which kinds of special relationships generate which
claims (and how weighty these claims are) is still incipient.22 First, often
there will (on a suitable division of moral labour) not even be a prima facie
conflict between duly attending to the demands of special relations and
protecting the urgent interests of all humans equally. The above example
may not be such a case, but negative dimensions of human rights do often
provide cases in point: honouring special claims of citizens is (although there
may arguably be exceptions) not normally in conflict with refraining from
killing people anywhere.
Secondly, however, in other cases conflicts do, on the face of it, certainly
remain possible.23 Think, for instance, of the positive provisions associated
19 Citizens and those who pay taxes do not always refer to the exact same groups. Depending on the
exact version of the argument on which one wants to draw, the relevant categories may be, say,
those paying taxes, those subject to the laws of the country, or those subject to certain duties that
come with citizenship. For simplicity I will refer to them as ‘citizens’ – and to the duties that they
have among one another as duties of ‘co-citizenship’ – although this may not in all cases be exactly
accurate.
20 I am assuming throughout that it is possible effectively to provide these outsiders with the
provisions in question. Furthermore, interstate assistance is of course only one way to realise an
ambitious global equality of human rights protection. Other ways will be discussed notably in
Section 3 below.
21 In a future essay, I will be concerned with the normative importance of this level of protection.
22 This literature cannot be discussed here in any detail. Key references include Blake 2011; Nagel
2005; Sangiovanni 2007; Sangiovanni 2012.
23 It should be noted that ‘equal protection of urgent interests’ is not plausibly realized by levelling
down to the lowest common denominator. See Section 3.1 below.
Jos Philips 53
with health care, education or also upholding the rule of law. For example,
may citizens of a relatively affluent country prioritize domestic tertiary
education to elementary education abroad?
In the end, I think, the answer in such cases should often be negative. For we
are, as said, generally talking about goods that are less urgent (e.g. tertiary
education) versus goods that are considerably more urgent (e.g. primary
education). In addition, only those protections can plausibly be regarded as
matters of human rights, even in rich countries, where but a small part of
the global wealth and resources would allow these protections to be realized
everywhere. Thus after duly attending to human rights across the globe,24 a
large part of social wealth in rich countries remains available for other causes,
and shifts can be made as to how to use it – for tertiary education, expensive
cancer drugs, a new highway, or a new swimming pool. Therefore it is not
in the end defensible for citizens of rich countries to say that care for the
protection of urgent interests abroad – up to a level, approximately, of what
counts as a human rights requirement in a rich country – directly gets in the
way of, say, expensive cancer treatments or an extensive education system.
Such causes may continue to receive due attention, even if rich states become
considerably more concerned about globally achieving the protection of
urgent interests.
The above argument may also be stated as follows. With claims such as those
of co-citizenship, three kinds of cases are possible (we are always focusing on
co-citizenship claims in affluent countries): (1) These claims could concern
the protection of urgent interests in a way that would, in affluent countries,
be regarded as a matter of human rights (e.g. dialysis). (2) These claims
could concern the protection of urgent interests in a way that would not,
even in affluent countries, be regarded as a matter of human rights (e.g.
certain expensive cancer treatments). (3) These claims could concern, not
the protection of urgent interests, but other goods (a new highway, etc.).
In cases (1)25 and (2), claims of co-citizenship may perhaps win out over
contributing to the protection of urgent interests abroad (protection up to
24 Here I assume a suitable division of moral labour, including a certain amount of slack taken up
from a restricted number of free riders.
25 We have only been concerned with case (1) in footnote 18 above.
54 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
2.3. Reasons (2): political and cultural self-determination and other values
A second important kind of reasons found in the literature may be more
promising.27 These reasons say that certain important values – such
as preserving important cultural identities or safeguarding the self-
determination of a political community – cannot be adequately attended
to if, globally, the equal protection of very urgent interests is realized, up to
the level, approximately, of what is now a matter of human rights in affluent
countries. This would be because globally realizing such a level of protection
would require that we move to more globalized institutional arrangements
that make it impossible to realize such values as the political and cultural
self-determination of distinct communities.
There are at least two replies to this concern. The first is to deny the importance
or weight of values such as political self-determination. However, this is not
a particularly promising road to take. For although it is true that the equal
protection of very urgent interests28 is very important, some of the values
whose realization one allegedly has to sacrifice to get there may also be very
important. For example: political self-determination, and the ability to be
meaningfully involved in decisions about the development of deep cultural
identities, may touch upon weighty political and cultural rights. Therefore,
we will at least hesitate in saying that fundamental equality requires realizing
the equal protection of urgent interests, if such equal protection jeopardizes
political or cultural self-determination etc. (It is true that, as they stand,
these judgments about which interests/values etc. are particularly weighty
or urgent remain intuitive. Ideally, we would want to outline a developed
theory to guide us here;29 but this is beyond the scope of our article.)
There is, however, an alternative line of reply: one could deny that there is
a conflict between duly attending to values such as political and cultural
self-determination and globally realizing the equal protection of very urgent
interests (such as interests in life and health). I believe that this line of reply
works quite well; both the globally equal protection of urgent interests and
values such as political self-determination may fare well if, instead of moving
to very globalized institutions (relatively close to a world state), one were
to accept a greater role for NGOs, international organizations, and – as
was in the background of Section 2.2 above – interstate assistance.30 Such
tendencies are already clearly present in the current global situation, which
is sometimes called post-Westphalian.31 Crucially, actually protecting urgent
interests more equally does not assume that we move away entirely from
states, which are now often the main instruments of political and cultural
28 Where, of course, the protection of values such as political and cultural self-determination are
not already included among those urgent interests. Typical urgent interests one may think of are
interests in security, a fair trial, food, health, etc.
29 The list of real freedoms that Martha Nussbaum proposes in her capabilities approach may be an
example. Nussbaum 2000.
30 Exactly which actions NGOs etc. may permissibly take, should of course be discussed in detail – if
one is to avoid dangers such as paternalism and falling foul of political self-determination. But I
cannot undertake to do this here.
31 See e.g. Fraser 2008.
56 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
32 Risse 2012.
Jos Philips 57
system that we find in today’s world, and that puts a heavy emphasis on
states as the main and primary duty bearers of human rights – each state for
its own people.33 It will turn out that neither of them works. Hence, we need
to move away considerably from states as the main duty bearers if we are to
move closer to the required equal concern.
Here, then, are two ways of realizing more equal concern within an
institutional system centred on states as the main duty bearers. The first is to
ensure that states would have equal wealth – as well as an equal willingness
to realize human rights.34 But this will not be realized in any remotely near
scenario. Nor is it even very realistic to imagine, in some near future, a
significantly less unequal distribution of wealth (or a willingness to realize
human rights) than we now have. So this first possibility should, at least
at present, be discarded. The second possibility is to realize equal concern
by levelling down to the lowest common denominator, that is to say, by
providing equally little protection to everyone. Obviously, however, this
possibility can be dismissed even more quickly. For although the level of
protection required by human rights, if it is to be uniform across the globe,
needs to be such that it is easily affordable given the level of global wealth
– i.e., leaving ample resources and wealth free to be devoted to non-human
rights causes – a uniform level of protection cannot plausibly imply that it is
alright to bring the level of protection down to what the poorest states can
afford.35 It seems, then, that if we are to move significantly closer to equal
concern, we ought to move away considerably from states (each state for its
own people) as the main and primary duty bearers of human rights.
Still, there are at least two reasons why one might resist such a move away from
states. The first was addressed above: it is the concern that certain important
values – such as cultural and political collective self-determination – could
not be adequately accommodated if such a move were to be made. However,
33 Here, ‘main’ means that non-state parties are generally only subsidiary duty bearers, playing a
comparatively minor role. These parties may only become more important as secondary, back-up
duty bearers when states do not act as they should.
34 Many thanks to Arienne Mulder for insisting that an unwillingness, too, could be a disturbing factor.
35 Indeed, this affordability requirement is even met by the approximate protections at a level,
approximately, of what now counts as a matter of human rights in rich countries.
58 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
it has been argued that this concern is unjustified.36 The second reason for
resisting a move away from states is that if we made such a move we would
no longer be offering a remotely plausible interpretation of the post-WWII
practice of human rights. I will now offer a detailed answer to this charge.
36 In fact, this argument played a central role in establishing that there was a case for greater equal
concern in the first place.
37 Beitz 2009, at p. 107.
38 Other important documents are the International Covenant on Civil and Political Rights
(ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the
Convention on the Elimination of all Forms of Racial Discrimination (CERD); the Convention
on the Elimination of all Forms of Discrimination against Women (CEDAW); the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the
Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with
Disabilities (CRPD). Furthermore, secondarily one may also refer to certain key regional human
rights documents, such as the European Convention on Human Rights.
39 Cf. Beitz 2009, at pp. 25-26.
Jos Philips 59
40 Rawls 1971.
41 For other elements of what I take to be a plausible interpretation of the practice, see footnote 26
above.
60 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
central human rights documents – where states are regarded as central.43 But
I believe that it is possible to give a coherent reading of the practice, and one
with attractive implications, where the centrality of states as duty bearers
(above all, each state for its own people) is at least mitigated to some extent.
In fact, this is just the challenge in which many are engaging in the current
globalizing setting, where humanitarian intervention, the involvement of
non-state agents, and cross-border assistance in human rights protection and
realization are gaining increasing prominence. Of course, the outlines of such
a post-Westphalian human rights landscape would need to be considered in
greater detail. I cannot undertake this here, but it is important to reiterate
that interpretation Ab need not imply that states lose every role whatsoever
as duty bearers; N-Ab only envisages that their importance is mitigated in
certain important ways.44
A second objection to the effect that Ab is not in the end preferable to
N-Ab could say that, contrary to what was argued above, it is possible to
tell an attractive story as to what human rights are about if one accepts
N-Ab. However, I cannot see what this story would look like. Human rights
could be about ‘protection by the state’, and one could look to the famous
American and French examples of the late eighteenth century. But these are
citizens’ rights and their relation to human rights, as I have understood them,
remains to be discussed.45 Charles Beitz, whose own proposal for (what he
43 It may be objected that states are central in these documents themselves. However, these documents
only exist through interpretation. So the objection is better put as asserting that the most acceptable
interpretations of these documents should give a very central place to states as duty bearers; but this
assertion largely takes us back to our present discussion.
44 Cf. Section 3.3 below for a more concrete idea of what this may look like.
45 To elaborate: it is attractive that states have to observe certain fundamental rights; but it is
something else to say that human rights are only or mainly about states honouring or promoting
these rights. Why would they only be about this? In the French and American examples the answer
seems to be: because we are concerned, from the outset, with a particular state (the French or the
American state). But then we are talking about citizens’ rights. A different answer could be: because
our world is largely Westphalian in structure (i.e. to a great extent focused on largely sovereign
states). But then, this does not produce an attractive story in favour of N-Ab; it merely makes
human rights hostage to what seems to be a contingent situation.
62 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
46 Beitz sees three components in human rights. Briefly put, these are: (1) the protection of urgent
interests, (2) with states as the primary and main duty bearers, each state first of all for its own
citizens, and (3) pro tanto reasons for the international community to become involved. See Beitz
2009, at p. 109.
47 Beitz 2009, at pp. 127-128.
48 This time: Rawls 1999.
49 See UN General Assembly, 2005 World Summit Outcome, UN Doc. A/RES/60/1 (2005), at 139.
Jos Philips 63
4. To conclude
The main thesis of this article has been that human rights, which clearly
subscribe to the idea that all humans are fundamentally equal, should also
move much closer to equal concern, that is, equal protection of urgent
interests. At present, the protection offered as a matter of human rights often
turns out to be blatantly unequal in practice; recall what the human right
to health is bound to get one in Germany – quite a lot, including probably
such treatments as renal dialysis – versus in South Africa. Similar examples
could be given for civil and political human rights, such as the right to
security. Such differences are not only predictable but they arise on account
50 Cf. Risse 2005. There are already some tendencies in this direction in the practice of human rights;
see e.g. ICESCR, Art. 2.1. Risse also rightly points out that it is not always easy to estimate whether
such a duty of assistance applies – whether it is possible acceptably to contribute to institution-
building from the outside, and if so, in what ways. Furthermore, assistance with institution
building should in certain cases arguably be supplemented by the provision of urgent humanitarian
assistance. See Risse 2012, at p. 173.
51 O’Neill 2004; O’Neill 2005.
64 Fundamentally equal but unequally protected? Human rights, unequal protection, and states
as duty bearers
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University Press, Princeton, 1996.
Equality problems in multicultural human rights
claims: the example of the Belgian ‘burqa ban’
Eva Brems
1 Act of June 1, 2011 ‘to institute a prohibition against wearing clothing that covers the face or a
large part of it’ was published in the Belgian Official Journal on July 13 and entered into force
ten days later. The Act inserts Article 563bis into the Belgian Criminal Code. ‘Subject to legal
provisions to the contrary,’ the Article punishes persons ‘who appear in places accessible to the
public with their faces covered or concealed, in whole or in part, in such a manner that they are
not recognisable’ with a monetary fine of 150 Euro and/or a prison sentence of one to seven days.
Paragraph two of Article 563bis of the Criminal Code specifies that the prohibition contained
in the first paragraph shall not apply when face covering is permitted or imposed by ‘labour
regulations or municipal ordinances owing to festivities’ (translation from Dutch/French EB). For
an overview of the situation throughout Europe regarding face-covering bans, see Brems (ed.)
2014, pp. 1-12. For a detailed description of the legal and political context in which the ban was
adopted in Belgium, see Vrielink, Ouald Chaib and Brems 2013.
2 The term ‘burka or burqa’ refers to the mostly blue piece of clothing covering the entire female body,
including the head, except for a small region around the eyes, which is covered by a concealing net
or grille. Such coverings are typical for certain areas in Pakistan and Afghanistan. They are virtually
never worn in Western Europe. To the extent that face veils are worn in Western Europe, these veils
are generally ‘niqabs’: face veils which do not cover the eyes but the rest of the face.
68 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
claims on both sides of the debate, and at the abuse of equality arguments
for discriminatory purposes. On account of this specific focus, the present
article is complementary to related publications by the present author, to
which reference is made in the footnotes.
The ‘burqa ban’ touches upon gender equality as well as upon non-
discrimination against religious minorities. The next sections will successively
examine three different angles that each see in the burqa ban the mobilization
of an equality argument to the detriment of another equality goal. Yet before
discussing equality in society, a point has to be made about equality in
human rights discourse, in relation to the case study.
a human being who was, among other things, male, adult, not disabled,
heterosexual, and Western.
Taking seriously the criticisms of non-dominant groups has resulted in many
improvements that have made human rights more inclusive, because they
reflect the lived realities of more people. This has required a willingness to
change perspectives and to question long-held assumptions – these may be
seen as cultural changes within human rights. For example the women’s
movement challenged the dominant idea that human rights were at play only
in the public sphere, in the relationship between an individual and public
authorities, and not in the private sphere. By gaining recognition of domestic
violence as a human rights issue, the women’s movement realized a paradigm
shift in human rights. Likewise, the children’s rights movement required us
to see children differently, by emphasizing not only their vulnerability and
the limits of their capacities, but rather their autonomy and the recognition
of the capacities that children do have. And the movement for the rights
of people with disabilities led to a reconceptualisation of a disability not
as a medical characteristic inherent in a person, but rather as a social issue,
constructed by the interaction between a person and her/his environment.
Likewise, the full inclusion of people with a non-Western cultural
background requires a willingness to open up certain concepts. For many
cultures, it would for example be absurd to limit the concept of ‘family’
in the right to the protection of family life to the nuclear family. Also for
many, it is unsatisfactory to focus only on the individual as a subject of
rights, as for them rights should also belong to groups. International human
rights law has undergone a number of additions to take non-Western or
non-Judeo-Christian cultural conceptions into account, for example we find
collective rights in the African Charter on Human and Peoples’ Rights and
in the Declaration on the Rights of Indigenous Peoples. Yet in the concrete
interpretation and implementation of human rights, the willingness to take
seriously non-dominant cultural views is often lacking, in particular at the
domestic level vis-à-vis cultural and religious minorities. This is clear, for
example, in the attempts in many European countries to model religious
freedom on the needs of the Christian majority. Contemporary European
Christians’ interpretation of their religion generally does not include dress
70 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
codes4 or food rules,5 and as a result it seems that many people’s conception
of religious freedom does not cover such manifestations. Such bias toward the
dominant religion affects even the European Court of Human Rights, which
goes along with the French neutrality reasoning against Islamic headscarves
in state schools,6 while at the same time going along with Italian reasoning
in favour of Christian crucifixes in all state schools.7
Bias in favour of the majority culture tends to be implicit, especially in
judgments, as judges generally do not make their underlying cultural
assumptions explicit. In the context of the ‘burqa ban’, the judgment of
the Belgian Constitutional Court on the compatibility of the ban with the
Belgian Constitution is a telling example.8 Those who are familiar with the
dry and technical character of Belgian Constitutional Court judgments were
surprised to find that the Court’s reasoning in this judgment is based on a
number of bold cultural statements.9 Without reference to any authority,
the Court claimed that ‘individuality in a democratic society requires
4 Yet some Christians consider it important to wear a cross or crucifix as a sign of their faith, and
arguably European conceptions of ‘decent’ dress have been strongly influenced by Christianity.
5 Yet some Christians consider it important to follow certain food rules, e.g. to abstain from eating
meat on Fridays.
6 ECtHR, Aktas v. France (admissibility decision), 30 June 2009 (Appl. no. 43563/08), ECtHR,
Bayrak v. France (admissibility decision), 30 June 2009 (Appl.no. 14308/08), ECtHR Gamaleddyn
v. France (admissibility decision), 30 June 2009 (Appl.no. 18527/08), ECtHR, Ghazal v. France
(admissibility decision), 30 June 2009 (Appl. no. 29134/08).
7 ECtHR, Lautsi and others v. Italy (Grand Chamber), 18 March 2011 (Appl.no. 30814/06).
8 Belgian Constitutional Court, judgment 145/2012 of 6 December 2012, to be found at
www.const-court.be.
9 Belgian Constitutional Court, judgment 145/2012 of 6 December 2012, para. B.21: English
translation (EB): ‘The individuality of each legal subject of a democratic society cannot be
imagined without the visibility of his/her face, which is a fundamental element thereof. Taking
into account the essential values it wanted to defend, the legislator was entitled to assume that
circulation in the public sphere, which is naturally of interest to the community, of persons of
whom that fundamental element of individuality is not visible, makes it impossible to create
human relations, which are necessary for life in society. While pluralism and democracy include
the freedom to express one’s convictions, amongst other things by wearing religious symbols, the
State should oversee the conditions under which those symbols can be worn and the consequences
that the wearing of those symbols can have. Since hiding the face results in depriving the legal
subject, a member of society, of any possibility of individualization through the face, while that
individualization is a fundamental condition linked to his (sic) very essence, the prohibition on
the wearing of such a garment in places accessible to the public, despite being the expression of a
religious conviction, corresponds to a mandatory societal need in a democratic society’.
Eva Brems 71
the visibility of the face’, that ‘people appearing in public without their
face being visible make human relations in society impossible’, and that
‘individualization through the face is a fundamental condition linked to the
essence of a person’.
These astonishing statements of a general and highly abstract nature can
be traced back to the travaux parlementaires of the Belgian ‘burqa ban’.10 In
particular they reflect statements by some Belgian MPs, who – borrowing
from the French parliamentary debate on the same issue – referred to the
French philosophers Emmanuel Levinas and Elisabeth Badinter, the latter
of whom intervened before the Gerin Commission that prepared the French
law.11
As far as Levinas is concerned, this is a serious distortion of his work.12 The
great philosopher did write about the face of the other as the basis of ethical
interpellation, yet there is no indication that this was meant literally. Instead,
it is generally interpreted as a way of referring to the presence of the other in
our midst.13 Levinas died in 1995, yet if he were alive, it is hard to imagine
him supporting a burqa ban, as throughout his writings he always emphasized
respect for the ‘otherness’ of others. So the Belgian Constitutional Court
seems to have based its categorical statements about the central importance of
a visible face for society on Belgian MPs’ misinterpretation of a philosopher.
As for Elisabeth Badinter, her statements before the Gerin Commission
do not directly concern the essential importance of a visible face, yet they
do provide explicit references to ‘our’ cultural context as the appropriate
yardstick for the interpretation of minority cultural practice. She states
that ‘anyone can wear what she wants, but the face is not the body, and
in western civilization, there is no face covering.14 With this statement, she
situates women who wear a face veil outside of Western civilization, despite
10 This is clear from the arguments of the Belgian government, as summarized in the judgment,
which include explicit references to the travaux parlementaires: Belgian Constitutional Court,
judgment 145/2012 of 6 December 2012, paras. B.4.2 and B.4.4.
11 Gerin 2010, at p. 333ff.
12 Vrielink 2013, at p. 250ff.
13 Bloechl (ed.) 2000; Cohen 1986.
14 Gerin 2010, at p. 334. It is to be noted that this is a gratuitous statement, which is moreover
incorrect: One may think, for instance, of the white veil of a bride or the black veil of a widow.
72 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
the fact that they live in France, that many have French nationality and
that they include a significant number of ‘autochtonous’ French women who
have converted to Islam.15 The French feminist philosopher continues her
exclusionist framing amongst other things by stating that ‘like Descartes,
I am convinced that we should ply to the customs and traditions of the
country in which we live’.16 The reference to ‘Western’ culture is narrowed
down to an interpretation of French culture, framed in opposition to British
and American ‘liberalism understood as unlimited freedom of expression’.17
Badinter states in particular that the face veil is opposed to the principle of
‘fraternité’ (brotherhood), interpreting it as an absolute refusal to enter into
contact with others and a refusal of reciprocity (seen without being seen)
labelled as ‘symbolic violence’.18 These are gratuitous statements that do not
bear any relation to the intentions or experiences of the women concerned.
Indeed, empirical research shows that women who wear a face veil do not
intend to withdraw from society and that – in the absence of a ban – they
do indeed interact with others in society (school teachers, shopkeepers,
neighbours, friends) in numerous ordinary ways.19
When the basis of legal reasoning by law makers and judges is such a strongly
exclusivist construction of the values of the dominant culture, it does not
seem possible to do justice to minority human rights claims. With respect to
the issue of equality reasoning, this illustrates the fact that inequality can be
a feature of human rights reasoning as such.
15 Bouteldja 2011.
16 Gerin 2010, at p. 336.
17 Gerin 2010, at p. 337.
18 Gerin 2010, at p. 335.
19 On France, see Bouteldja 2011.
Eva Brems 73
social and cultural rights. I submit that we should also distinguish a separate
category of ‘emancipation rights’. These are rights intended to correct a
legacy of structural discrimination against specific groups and to provide to
members of such groups equal opportunities and equal enjoyment of their
human rights. Concretely, these are women’s rights, children’s rights, the
rights of ethnic and cultural minorities, the rights of persons with disabilities,
LGBT rights….
What these have in common is that they do not play only (or even
predominantly) in the vertical relations between individuals and the state,
but that they present their main challenges in the horizontal relations among
individuals in society. The realization of emancipation rights requires a
cultural change that is focused, in particular, on the way we view members of
that group. With respect to women, this is explicitly emphasized in CEDAW
article 5 (a),20 and with respect to persons with disabilities, it is expressed
in detail in article 8 of the Convention on the Rights of Persons with
Disabilities.21 Both provisions aim at eliminating stereotypes. Eliminating
stereotypes in human rights law is crucial to all emancipation rights: it is
20 CEDAW art. 5 (a): States Parties shall take all appropriate measures: (a) To modify the social
and cultural patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and women.
21 Article 8 CPD: 1. States Parties undertake to adopt immediate, effective and appropriate measures:
a. To raise awareness throughout society, including at the family level, regarding persons with
disabilities, and to foster respect for the rights and dignity of persons with disabilities;
b. To combat stereotypes, prejudices and harmful practices relating to persons with disabilities,
including those based on sex and age, in all areas of life;
c. To promote awareness of the capabilities and contributions of persons with disabilities.
Measures to this end include:
a. Initiating and maintaining effective public awareness campaigns designed:
i. To nurture receptiveness to the rights of persons with disabilities;
ii. To promote positive perceptions and greater social awareness towards persons with disabilities;
iii. To promote recognition of the skills, merits and abilities of persons with disabilities, and of
their contributions to the workplace and the labour market;
b. Fostering at all levels of the education system, including in all children from an early age, an
attitude of respect for the rights of persons with disabilities;
c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent
with the purpose of the present Convention;
d. Promoting awareness-training programmes regarding persons with disabilities and the rights of
persons with disabilities.
74 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
about seeing children not only as vulnerable and lacking full capacity, but
also as subjects with progressing capacity; and it is about opening up our
views about what is a couple, or family life, and about opening up to a wide
and diverse range of expressions of identity.
The fact that the realization of emancipation rights by definition requires
cultural change, within majority as well as minority cultures, is important to
keep in mind when discussing situations in which a practice of a cultural or
religious minority is rejected by the majority on grounds of women’s rights
or LGB rights. The following question first arises: is this a case in which
the minority culture should change, or is it a case in which the majority
should accommodate diversity? Take the case of the orthodox protestant
public servant who refuses to administer same-sex marriages. Should that be
accommodated as the expression of a sincere religious belief? Or is it simply
homophobia, which is always cultural and always requires cultural change?
The European Court of Human Rights ruled that the United Kingdom was
not obliged to accommodate this conscientious objection; yet ruling on the
basis of the margin of appreciation, it did not exclude it either, so left the
choice to the states concerned.22
If the conclusion at state level is that a minority culture should change, the
next question is: how can that be brought about? And in particular: what is
the role of the law in such a project of cultural change?
In what follows, the case of the so-called ‘burqa ban’ in Belgium will be
used to illustrate a number of equality rights conflicts that may arise in
this type of situation. For that purpose, the focus will be on the women’s
rights justification for the ban. It is to be noted, however, that the ban has
been brought forward not only for reasons related to women’s rights, but
also for reasons related to the importance of communication in society
as a matter of public order (cf. supra in the discussion about the Belgian
Constitutional Court judgment) and as a matter of public safety.23 The latter
two justifications will not be discussed in what follows.
22 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10) (on Ladele).
23 Vrielink, Ouald Chaib and Brems 2013.
Eva Brems 75
3.1. A face veil wearer’s equality on grounds of gender versus her equality on
grounds of religion – intersectionality and the insider perspective
The most straightforward women’s rights argument in support of face
veil bans is one that invokes the rights of the women who wear it. In the
parliamentary debates leading up to the ban in Belgium, such references can
frequently be found.29 Throughout this argument two central assumptions
are being made. The first assumption is that most or all women wearing a
face veil are forced to do so. In other words, that it is an inherently oppressive
religious practice that forces women to cover up so as not to tempt men. The
second assumption is that the ban will liberate these women from oppression.
Our empirical research among women who wore a face veil in Belgium
demonstrates that both assumptions are wrong. This is confirmed by
empirical research among the same group in the Netherlands, France,
Denmark and the UK. Before explaining why the assumptions are wrong,
it is worth emphasizing why it is important to hear about the experiences of
those women.
First, I refer to the teachings of feminist methodology, and in particular its
emphasis on the validity of women’s personal experience as a starting point.
This is seen both as a means of realizing the emancipatory goal of feminist
research and as the best way to understand the reality of oppression which
outsiders who are part of the oppressive system cannot otherwise understand.
It is submitted that insider experiences are a very important means for those
who study the practices of marginalized and/or oppressed minorities – such
as women who wear the face veil – whose number in Belgium was estimated
to be a maximum of 270 out of a population of 11 million.30
29 For a detailed analysis of the arguments in the Belgian parliamentary debates, see Vrielink,
Ouald Chaib and Brems 2013. For a detailed confrontation of the empirical findings with the
parliamentary debates, see Brems et al. 2014.
30 Before the ban, estimates of the number of women wearing the face veil in Belgium mentioned
numbers from 200 to 270. The number of 270 is based on statements made by representatives of
the Centre d’Action Laïque during the hearings on 13 November 2009 of the Gerin extraordinary
parliamentary commission that examined the French legislative proposal (Gerin 2010, at p. 74).
By contrast, the Centre for Equal Opportunities estimates that there are approximately 200
women wearing face veils in Belgium (De Wit 2010).
Eva Brems 77
a fairly good view of what the impact of new rules will be. Yet in this case,
there are no representative organizations of face veil wearers and mainstream
Muslim organizations have not taken up this cause. Moreover, at the time of
legislating, there was no empirical material available on the situation of face
veil wearers in Belgium.32 Nor did the legislator show an interest in learning
about this reality.33 Since that time, however, empirical research on women
wearing the face veil in Europe has become available for Belgium and several
other countries. This offers an opportunity to review the assumptions of the
legislator.
3.1.1. Reviewing the first assumption: the face veil is a practice of oppression
as it is being forced upon women.
All available empirical research shows that this central assumption is
erroneous. While the research does not allow one to conclude whether or not
(and if so, how many) women are being forced to wear a face veil, it clearly
shows that for a significant number of face veil wearers, the face veil is the
result of an autonomous choice.34 All interviewees describe the decision to
start wearing the face veil as a well-considered and free decision, a personal
trajectory of deepening and perfecting one’s faith. In France and Belgium,
nearly all face veil wearers were faced with strong negative reactions from
their relatives and friends, sometimes even their husbands. These women
generally see themselves and each other as ‘strong’ women. And in light of
the constant harassment they face in public, this should not be surprising.
32 Yet the legislators could have consulted the study by Moors 2009 on the Netherlands.
33 A request to organize hearings only received one vote in the parliamentary committee. While there
was some reference to expert opinion (second hand – i.e. a reference to experts who were consulted
in the French legislative process), there was no basis in reality for the assumptions that guided the
legislative work.
34 Brems et al. 2012, at pp. 4-10.
Eva Brems 79
than empowering it.35 Moreover, research in France after the ban has
documented the decline in the quality of life of the women concerned.36
Many women are strongly attached to the face veil, and continue to wear
it despite the ban, yet they avoid going out except by car. Hence, they
experience a serious deterioration in their social life and their mobility. They
have grown more dependent on their husbands, who now have to do all
outdoor errands. And they suffer in particular in their role as mothers, as
they can no longer accompany their children to school, bring them to their
extracurricular activities, or enjoy outdoor recreation with them. This is true
even for some of the women who stopped covering up as a result of the ban,
as they feel uncomfortable in public without their veil.
3.1.3. Conclusion
Both central assumptions of the legislator appear to be false in the light
of the experiences of face veil wearers. As a result, we are dealing with a
false conflict. For the face veil wearer, there does not appear to be a conflict
between her women’s rights and her religious freedom: in the well-considered
and autonomous choice to start and to continue to wear a face veil, both are
exercised in harmony. This suggests that the need for cultural change among
Islamic minorities toward women’s rights will not be furthered by banning
the face veil. And, in fact, the research shows that the ban not only does not
help emancipation, but even works against it.
35 While the European Court of Human Rights accepted France’s face veil ban, it did not accept that
it might be justified for the protection of women’s rights: ‘The Court takes the view, however, that
a State Party cannot invoke gender equality in order to ban a practice that is defended by women
– such as the applicant – in the context of the exercise of the rights enshrined in those provisions,
unless it were to be understood that individuals could be protected on that basis from the exercise
of their own fundamental rights and freedoms.’ (ECtHR, S.A.S. v. France (Grand Chamber), 1 July
2014 (Appl.no. 43835/11), para. 119.
36 Bouteldja 2013.
80 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
wearers. Regularly this is expanded to the rights of all women, for whom the
face veil would be an offence. This resonates strongly in the reasoning of the
Belgian Constitutional Court: ‘even if the full veil is worn on the basis of a
deliberate choice of the woman, gender equality justifies that the state resists
the expression of a religious conviction through behaviour that cannot be
reconciled with the principle of gender equality’.37
This is a women’s rights argument that is not about the rights of minority
women who wear the veil, but rather about the rights of majority women
who are offended by the veil which they read as a message of gender
inequality. From this angle, the face veil is banned not as a practice of
women’s oppression, but as a symbol of women’s oppression.
Without even delving into the fact that from a free speech perspective, the
banning of symbols can rarely be justified,38 it is submitted that there are two
other major problems with this line of reasoning.
In the first place, it relies on a strictly outsider interpretation of the face
veil as a symbol. This outsider reading sees the face veil as a message to the
world saying ‘women should cover themselves’, or even ‘women should be
submitted to men’. Yet for the women under the face veil it is not a message
to the outside world.39 It is a very personal aspect, a choice they make for
themselves in their relationship to God. Proselytising is very far from these
women’s minds. If there has to be a message, it is certainly not a normative
one. Also, if there has to be a message, it would not be about gender relations,
but about religion. If the face veil has to be a symbol, for the face veil wearer
that would be a symbol of religious devotion to God. At most, it could
be called a symbol of chastity. But from chastity to gender inequality is a
long stretch. In analysing the interviews with face veil wearers from a gender
37 Belgian Constitutional Court, judgment 145/2012 of 6 December 2012, para. B.23: translation
EB: ‘Even if the wearing of a face veil results from a well considered choice by the woman, still
gender equality, which the legislator rightly considers a fundamental value of democratic society,
justifies the State resisting in the public sphere the expression of a religious conviction by behaviour
that cannot be reconciled with that principle of equality between a man and a woman. As the
Court noted in B.21, wearing a full veil that hides the face takes away from the woman, the sole
addressee of that rule, a fundamental element of her individuality, which is necessary for life in
society and for the creation of social relations.’
38 See Vrielink 2014, at p. 184ff.
39 Brems et al 2012, at p. 5.
Eva Brems 81
help to visualize what is wrong with banning freely worn face veils in the
name of the battle against patriarchy. There must be better ways to realize
anti-patriarchal cultural change. The pursuit of a radical feminist utopia
need not be at the expense of plain liberal women’s autonomy.
and that courts ruling on the compatibility of such bans with human rights45
should take the Islamophobic context very seriously in their reasoning.
4. Conclusion
Trying to realize equality in cases of multicultural human rights claims is
not easy. Some of the politicians who favoured a face veil ban were not really
interested in any kind of equality. Yet others really took for granted that
they were doing the right thing for women’s rights. A reality check shows
that they did not. In my opinion, the one important lesson to be learned
from this concerns the crucial importance of the insider view; of taking into
account the lived experiences of the persons who are affected by a rule, rather
than building on unchecked assumptions.
45 Cf. ECtHR, S.A.S. v. France (Grand Chamber), 1 July 2014 (Appl.no. 43835/11), para. 149: ‘the
Court is very concerned by the indications of some of the third-party interveners to the effect
that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of
11 October 2010 (...). It is admittedly not for the Court to rule on whether legislation is desirable
in such matters. It would, however, emphasise that a State which enters into a legislative process of
this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain
categories of the population and of encouraging the expression of intolerance, when it has a duty,
on the contrary, to promote tolerance.’
84 Equality problems in multicultural human rights claims: the example of the Belgian ‘burqa ban’
BIBLIOGRAPHY
Rob Widdershoven
1. Introduction
This contribution is an updated and extended version of my comments
on the keynote speech by Eva Brems, ‘Equality Trouble in Multicultural
Human Rights Claims: the Example of the Belgian ‘Burqua Ban’, delivered
by her at the Farewell Symposium entitled ‘Equality and Human Rights:
Nothing but Trouble?’ for Professor Titia Loenen on 18 November 2013
in Utrecht. The contribution of Brems to this Liber Amicorum contains
a slightly revised version of her speech.1 To understand my reflections, the
reader is advised to read Brems’ contribution first. The most important new
fact which is included in my contribution is the judgment of the European
Court of Human Rights of 1 July 2014 in the case of S.A.S. versus France,
in which the Court found the French burqa ban to be not inconsistent with
Articles 8 (the right to respect for private life) and 9 (the freedom of religion)
of the ECHR.2 This judgment fits quite well with my comments made at the
Farewell Symposium.
This contribution reflects on three issues which are prominent in the burqa
ban debate.3 Section 2 deals with the tension between fundamental rights
protection and democracy. In section 3 the focus is on the concept of national
identity in relation to fundamental rights protection in both the ECHR and
the European Union legal order. Section 4 reflects on the question whether
– as Brems submits – the insider perspective of women wearing a burqa
should more or less be decisive when assessing the burqa ban in the light of
fundamental rights. My main findings will be summarized in section 5.
In the title of this contribution I have labelled myself as an outsider. With this
disclaimer I try to prevent, in advance, any possible criticism by fundamental
rights insiders that my reflections are not new and are superficial. Indeed, I
am not a fundamental rights expert and I am certainly not specialized in
equality rights and the freedom of religion, fundamental rights which lie at
the heart of the burqa ban debate. However, as a European administrative
lawyer I do have some ideas about the issue which might be valuable for the
discussion.
And, finally for those who are interested, where do I stand in the burqa ban
debate? Personally I am not fond of burqas, but I am also against a burqa
ban. Such a ban is not an effective solution for a minor problem which a
self-confident society can deal with in a less intrusive way and which will – in
my opinion – disappear as time goes by. At the same time, I do think that a
state should have the right to introduce a burqa ban if the vast majority of
the people are of the opinion that such a ban is essential for reasons which,
as such, are legitimate.
4 Belgian Constitutional Court, Judgment 145/2012 of 6 December 2012, cited in Brems 2015,
section 1, and in ECtHR, S.A.S. v. France, 1 July 2014 (Appl.no. 43835/11), at para. 42.
Rob Widdershoven 89
also supported by almost every political party and was declared constitutional
by the French Constitutional Council as well.5
Brems is not impressed by this huge democratic support for the burqa ban.
On the contrary, this support is disqualified by labelling it as a bias of the
dominant Christian majority culture against the non-dominant group of
people with a non-Western background, and even as islamophobia in
disguise.6 In this argument democracy is more or less considered to be an
‘enemy’ of fundamental rights. In my opinion such labelling is in principle
unwise and in the end is detrimental to the protection of fundamental rights.
5 French Constitutional Council, Judgment no. 2010-613 DC of 7 October 2010, cited in ECtHR,
S.A.S. v. France, 1 July 2014 (Appl.no. 43835/11), at para. 30.
6 Brems 2015, sections 1 and 3.3.
7 In the French discussion reference was made to the French philosophers Emmanuel Levinas and
Elisabeth Badinter. See Brems 2015, section 2.
90 Troubles concerning the ‘burqa ban’: reflections from an outsider
8 See for a summary of their opinions ECtHR, S.A.S. v. France, 1 July 2014 (Appl.no. 43835/11), at
para. 20 (French Council of State) and para. 37 (Commissioner for Human Rights of the Council
of Europe). By the way, also the Dutch Council of State delivered four negative opinions on four
separate Bills before Parliament which concerned a burqa ban. See ECtHR, S.A.S. v. France, 1 July
2014 (Appl.no. 43835/11), at para. 49.
9 ECtHR, S.A.S. v. France, 1 July 2014 (Appl.no. 43835/11), for instance at paras. 129-131 and
154-158.
Rob Widdershoven 91
Moreover, in order to come to its decision the Court was even forced to
‘invent’ a new sub-ground for restricting the freedom of religion and the
right to respect for private life, namely ‘the respect of minimum requirements
of life in society’ or ‘living together’ that can be linked – at least according to
the Court – to the legitimate restrictive aim of the ‘protection of the rights
and freedoms of others’.10
Obviously, it is not difficult to criticize the judicial ‘creativity’ of the Court
which is necessary to arrive at a result probably determined in advance.
However, in my opinion the Court made a wise decision not to set aside
the almost unanimous vote of democratically legitimized Parliaments. Even
the common opinion among lawyers (and, again, I am one of them) that
‘protecting fundamental rights is first and foremost about the protection of
vulnerable groups’11 does not mean that the rights of these groups always
have to prevail above democracy. In my opinion they should not, at least not
in a case where the fundamental rights at stake are not absolute and may be
restricted, and virtually all Members of Parliament are of the opinion that a
certain measure is necessary in a democratic society. If lawyers do not take
account of such vast majority opinions, I fear that Parliaments in future will
not listen to lawyers when even more fundamental rights than those of the
burqa wearers are at stake. Fundamental rights protection in general is not
favoured by too many serious confrontations with democracy, because at the
end of the day politicians are more powerful than lawyers. Or, to rephrase
a Dutch proverb, if one wants to win the war (on fundamental rights) one
sometimes has to accept defeat in an individual battle (in this case on the
burqa ban).
12 Case C-399/11, Melloni, [2013]. See also Case C-617/10, Akerberg Fransson, [2013].
Rob Widdershoven 93
retrial – was completely determined by Union law.13 Therefore Spain was not
allowed to apply its national, more generous, fundamental right according
to which such a possibility for a retrial was mandatory. In other cases, where
Union law does not completely determine the situation, Member States
might be offered more leeway in applying more generous fundamental rights
in Union cases. Nevertheless, also in these cases such application can be
scrutinized by the CJEU as to primacy, unity and effectiveness.14
The Melloni judgment, although not very surprising from an EU law
perspective, has been criticized by many constitutional lawyers.15 Interesting
for the current debate is that many of them have now ‘embraced’ national
constitutional identity as a possible alternative justification for a Member
State to apply, in Union cases, at least those more generous fundamental
rights that are part of the national identity of that Member State.16 The basis
for their recommendations is Article 4(2) TEU, which imposes on the Union
the obligation to respect the national constitutional identity of the Member
States. How the CJEU will respond to these recommendations remains to
be seen. In my opinion the Court might be susceptible to them, at least in
respect of those national fundamental rights that, according to a Member
State, are undoubtedly part of its national constitutional identity. This would
be a next step in its case law in which the Court has already accepted the
possibility of national identity being a justification for a national derogation
from a right to free movement.17
Returning to the burqa ban debate, the question can be raised whether it
is consistent that lawyers favour the possibility that national identity is a
13 Council Framework Decision 2002/584 of 13 June 2002 on the European Arrest Warrant and the
surrender procedures between Member States (OJ L 190 p.1) as revised by Framework Decision
2009/299.
14 For instance Case C-617/10, Akerberg Fransson, [2013].
15 For instance Sarmiento 2013; Reestman and Besselink 2013; Besselink 2014. Especially in
Germany the reactions to Melloni and Akerberg Fransson have been quite fierce. See, for instance,
the Internet Blog by Thomas Stadtler, ‘Abschied von den Deutschen Grundrechten?’, available
at: www.internet-law.de/2012/01/abschied-von-den-deutschen-grundrechten.html. See also the
opinion of the Bundesverfassungsgericht stating that the Akerberg Fransson judgement is ultra
vires, available at: www.bundesverfassungsgericht.de/pressemitteilungen/bvg13-031en.html.
16 Cf. Bogdandy and Schill 2011; Besselink 2010; Torres Péreze 2013; Preshova 2012.
17 Cf. Case C-36/02, Omega Spielhallen, [2004] ECR I-09609; Case C-208/09, Sayn Wittgenstein,
[2010] ECR I-13693; Case C-391/09, Runevic-Vardyn, [2011] ECR I-03787.
94 Troubles concerning the ‘burqa ban’: reflections from an outsider
justification for a higher level of fundamental rights, on the one hand, but
may have their doubts as to the possibility that national identity might be
a ground for limiting fundamental rights, on the other. In my opinion it is
not. If national identity is accepted as a legal norm, it can in principle work
in both ways.
19 Of course, neatly framed in the grounds of restriction of the ECHR, interpreted in the light of the
wide margin of appreciation of the state.
20 Cf. Brems 2015, section 3.1.
21 Cf. Brems et al. 2012 and Moors 2009.
96 Troubles concerning the ‘burqa ban’: reflections from an outsider
forced upon the women concerned and the ban will liberate these women –
are false according to the women concerned. Furthermore, Brems calls into
question the symbolic function of the burqa ban, because for these women
the wearing of a burqa has no symbolic function at all (it is their personal
choice) and it certainly does not indicate that they approve of or promote
male dominance. I have two remarks about this research.
22 See on this matter, Oomen, Guijt and Ploeg 2012 and ECtHR, Staatkundig Gereformeerde Partij
v. The Netherlands, 6 October 2010 (Appl.no. 58369/10).
Rob Widdershoven 97
23 The group of women interviewed by Moors solely consisted of converts (60%) and women of
Moroccan origin (40%). In the research by Brems et al. 2012, section 1, the number is not
completely clear, but ‘most of ’ the 27 women interviewed were second generation immigrants of
Moroccan origin and of the remaining group ‘a few’ were first generation Moroccan and 5 were
converts.
98 Troubles concerning the ‘burqa ban’: reflections from an outsider
5. Concluding remarks
On 1 July 2014 the ECtHR in the case of S.A.S. versus France decided that
the French burqa ban was consistent with the freedom of religion and the
right to respect for private life. In my opinion this is a wise decision. Not
because I am personally in favour of a burqa ban, but because I do think that
a state should have the right to introduce it if – as was the case in France and
Belgium – the vast majority of the people are of the opinion that such a ban
is essential for reasons which are, as such, legitimate. Although I adhere to
the opinion that protecting fundamental rights is first and foremost about
the protection of minorities, this does not mean that minority rights have to
prevail over and above democracy by definition. Sometimes – and the burqa
ban case provides a good example – democracy prevails, also because the ban
reflects the national identity of the states (and the peoples) concerned.
I do not think that my contribution will change the opinion of Eva Brems.
This was also not my intention, because her strong and well-founded opinion
is very welcome in the societal and academic debate. Furthermore, I am also
quite certain that Titia Loenen will not agree with everything I have stated
in the foregoing.24 Nevertheless, Titia, I hope that my contribution to the
debate is still welcome and may provide some inspiration in your current
and future activities at Leiden University. Titia, thanks for your great efforts
for the benefit of Utrecht University in the past and I wish you a great deal
of success in Leiden.
24 As a member of a Dutch expert committee which advised the government on the legal possibilities
for a burqa ban, she was of the opinion that a ban, only aimed at Islamic full-face veils, was
contrary to the freedom of religion. Cf. Vermeulen et al. 2006.
Rob Widdershoven 99
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Utrecht Law Review, Vol. 6, No. 3, 2010, pp. 36-49.
Besselink, L.F.M., ‘The Parameters of Constitutional Conflict after Melloni’,
European Law Review, Vol. 39, No. 4, 2014, pp. 531-552.
von Bogdandy, A. and Schill, S., ‘Overcoming Absolute Primacy: Respect for
National Identity under the Lisbon Treaty’, Common Market Law Review,Vol.
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Wearing the Face Veil in Belgium; Views and Experiences of 27 Women Living in
Belgium concerning the Islamic Full Face Veil and the Belgian Ban on Face Covering,
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human-rights/faceveil.pdf.
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at Utrecht University, 1 July 2014’, Netherlands Quarterly of Human Rights,
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www.manavzw.be/_files/niqaabrapport%2010%20juli%202009%20-%20
Annelies%20Moors.pdf.
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Netherlands: the struggle over orthodox women’s political participation and
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European Constitutional Law Review, Vol. 9, No. 2, 2013, pp. 169-175.
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vraag’, Volkskrant, 3 May 2014.
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100 Troubles concerning the ‘burqa ban’: reflections from an outsider
Vermeulen, B.P., Doorn-Harder, N., Loenen, T., Leemhuis, F., Ghaly, M.M.,
van Bommel, A. and Loof, J.P., Zienswijze van deskundigen inzake een verbod
op gezichtsbedekkende kleding, Overwegingen bij een boerka verbod, Report, The
Hague, 2006.
The individual case and the general rule
Jeroen Kiewiet1
1. Introduction
When I worked in Utrecht I discussed with much pleasure in the course
on jurisprudence (Algemene rechtsleer) Titia Loenen’s article ‘Recht en
het onvervulbare verlangen naar individuele gerechtigheid’.2 In this article
Loenen calls law – with a term borrowed from Kees Schuyt – a ‘tragic hero’.
This tragic hero succumbs to the enormous pressure exerted by a society
that has too high expectations of legal solutions, expectations that the law
can never fulfil. This idea appeals to me. I think she is right that too much
is expected of the legal system. The expectations are often sky-high in the
individual’s search for total justice.3 The claims of individuals towards the
state are formulated as rights, and the law should be there to compensate all
of the individual’s mishaps.
I was surprised by Loenen’s distinct position that differentiation is not always
best, but that the general rule should more often be adhered to. Loenen
advocates the virtue of the generality of rules instead of differentiation and
doing justice to the individual case. This is a clear focus on a rule-oriented
perspective: cases are judged equally by applying the same set of rules;
everyone has, from a legal perspective, the same rights.4 The same rights are
therefore applied equally. This formality can be contrasted with a conception
of equality, which is concerned with the result of equal treatment in reality.5
Being naïve or maybe even prejudiced I would have expected that Titia
Loenen, as an expert in legal gender studies, would focus on how in reality
1 I am grateful to the anonymous peer reviewers and Marjolein van den Brink for their comments
and suggestions. Special thanks to Charlotte Mol for fine-tuning my English.
2 Loenen 1996.
3 Loenen took this term from Friedman 1986, at p. 23. Loenen 2010b, at p. 323.
4 In the literature, the distinction between rule and result-oriented equality is often called equality
in a formal and material sense. This distinction is elaborated by Loenen 2010a, at p. 274.
5 Loenen 2010a, at p. 274.
102 The individual case and the general rule
men and women come to unequal results. Because of the dominance of the
legal system which is formal and rule-based, rules may be equally applied
to men and women but the implicit reference point or dominant standard
behind these rules are male-biased.6 Instead Loenen promotes a stronger
focus on applying rules without differentiating on the level of the individual.
She is thereby rowing in a different direction than advocates of the gender
and law movement normally do.7 This surprised me, and triggered me to
review her arguments in more detail.8
Loenen’s proposed solution to prevent the ‘tragedy of law’ is to put more
emphasis on general categories within general provisions and less emphasis on
individual cases. Let me be frank, I was not immediately convinced of this
solution. What I find problematic is that this formal treatment according to
general categories can lead to the situation that the individual case is not in
focus while the larger emphasis on general categories does not seem to fulfil
a moral value in itself. To put it quite bluntly: also a band of robbers can
exercise their power through general rules.9 Slavery, sex discrimination, or
racial segregation can be all in accordance with general provisions.10 I discuss
this doubt in the first part of my essay in which the moral value of generality
will be scrutinised.
In the second and third parts of the essay I will try to prove why the generality
of rules does matter by means of two arguments provided by Loenen in her
article. In the second part I will discuss Loenen’s argument regarding the
division of power, more precisely the relation between the judge and the
legislator, which is compromised by focusing too strongly on individual
cases. I will show that the generality of rules is also of major significance
in constitutional law in the discussion on the concept of statutes. In the
third part I discuss Loenen’s appeal to solidarity as an argument not to focus
too much on individual cases. Finally, I will discuss whether my hesitation
with regard to the prima facie lack of any moral value of generality has been
overcome by these two arguments.
11 Loenen also refers to this quote from Aristoteles: Loenen 1996, at p.123.
12 Fleuren and Mertens 2012, at p. 86: ‘Wanneer de wetgever immers geen acht slaat en behoeft te
slaan op wat zelden voorkomt, dan moet een andere instantie dat wel doen indien zoiets zeldzaams
zich voordoet. Het ligt in de lijn van de filosofie van Aristoteles dat deugdzame burgers en goede
bestuurders en ambtenaren in dergelijke (…) tot een redelijke oplossing proberen te komen, ook
al strookt die niet met een strikte toepassing van de wet. Maar als dit niet lukt, dan is het woord aan
de rechter. (…) uiteindelijk is het oordeel onlosmakelijk verbonden met een weging van de concrete
omstandigheden.’ (‘When the legislature does not take notice or needs to take notice on what occurs
seldomly, then another authority will have to do so if the exceptional case arises. It is in line with
Aristotles’ philosophy that virtuous citizens and good administrators and officials (…) endeavour
to come to a reasonable solution, even though it is not consistent with the strict application of the law.
But if they do not succeed, then it is up to the judge. (…) ultimately the judgement is inextricably
linked to a balancing of the circumstances at hand.’) Emphasis added.
104 The individual case and the general rule
18 The emptiness of the principle of formal equality is demonstrated by Hans Kelsen in: Kelsen
1973. Kelsen explicitly attacks Kant’s position, at p. 18-19: ‘They [the concrete examples with
which Kant attempts to illustrate the application of his categorical imperative] are in no sense
derived from the categorical imperative, as the theory makes out, for nothing can be derived from
such an empty formula. (…) But every precept of any given social order is consistent with this
principle, for it says no more than that a man should act in accordance with general norms.’ Also
Peter Westen demonstrates the emptiness of formal equality in Westen 1982.
19 Rosier 2010, at p. 58 footnote 8: ‘Gelijke gevallen gelijk behandelen is een zuiver formeel beginsel.
Het zegt niets over de inhoudelijke criteria die men moet gebruiken om vast te stellen of gevallen
wel of niet gelijk zijn.’ (‘Treating like cases alike is a purely formal principle. It does not say
anything about the substantive criteria that must be used to determine whether or not cases are
equal.’) Also Hart 1994, at p. 159: ‘Treat like cases alike’ must remain an empty form. To fill it we
must know when, for the purposes in hand, cases are to be regarded as alike and what differences
are relevant.’ Criticism of this statement can be found in Westen 1990, at p. 225.
20 Fleuren and Mertens discuss – partly implicitly – the constitutional position of the judge in
paragraphs 3 and 4 (at pp. 80-84), in which they discuss Article 11 Wet algemene bepalingen
(General Provisions Act) and the contra legem effect of reasonableness and fairness (‘redelijkheid en
billijkheid’) and general principles of law.
106 The individual case and the general rule
Thus, the legislature adopts vague and imprecise provisions, leaving the
difficult decisions to the courts.28
To summarise the positions discussed, two strands can be discerned in the
current debate: the high esteem of the judge and his capability to come
up with an equitable solution in every individual case, on the one hand,
and, on the other, authors like Loenen who clearly doubt the possibility
and the desirability to put the judge in the position to decide on important
controversial matters.
28 Take, for example, the case of the regulation of euthanasia in the Netherlands. Griffiths, Bood
and Weijers 1998, at p. 87: ‘The legal vacuum created by the deliberate pace of political decision-
making has been filled by the courts, which have accepted the task of reconciling the conflict between
the explicit prohibition of euthanasia and assistance with suicide in the Criminal Code and the
increasingly apparent fact that these MBSL are widely practiced and enjoy general public support.
In a sense, the courts have thereby usurped the constitutional role of the legislature, but the latter
has not protested. On the contrary, the Government itself (which in a parliamentary system is
directly answerable to the legislature) has frequently and openly made use of the courts to secure legal
development. And Parliament itself has exhibited only respect for what the courts have done.’
29 Rules are not an exclusive subject for legal scholarship. Also philosophical or sociological research
on rules is carried out, for example the philosophical meaning of following a rule in Saul Kripke’s
interpretation of Ludwig Wittgenstein’s discussion of teaching mathematical series (Solum 1999,
at pp. 493-494) or sociological theories on rule-following behaviour (E.g. Griffiths 2003).
Jeroen Kiewiet 109
A statute in the material sense is every statue that is general and abstract.
Neither the addressees nor the cases in which the statute will be applied are
predetermined. In addition, the statute has an external effect: it binds citizens
and therefore is not meant to regulate only the government itself.30 These
material criteria determine whether a statute has the quality of a material
statute. In contrast, formal statutes are defined by the procedural realisation.
Every statute containing a legal action that is a product of the legislative
process as described in the Constitution is a statute in the formal sense.31 The
striking point now is that a formal statute is not necessarily a material statute
as well. A formal statute regulating – for example – permission for the King,
or his successors to the throne, to marry32 does not have the character of a
material statute because it is not general and abstract. It only concerns one
situation – the parliamentary approval of the proposed bride of the heir to
the throne – on one occasion, thus it is merely a formal statute.
The typical example of a non-material, yet formal statute was the budget
act, conceptualised by the German constitutional law scholar Paul Laband
in 1870. Following the wish of Otto von Bismarck, the participation of
parliament was required regarding, as Michael Stolleis calls it, ‘the most
sensible part of the modern state.’33 Of course, because of the lack of
generality and abstractness this budget act could not be considered to be a
regular – material – statute. But to ensure the involvement of parliament in
deciding on the budget, the form of a statute was required, instead of just an
act of government.34
Two major arguments figure in this discussion on the constitutional
admissibility of merely formal statutes. The first one is rooted in the doctrine
of law of the Enlightenment. This doctrine entails that law should be solely
composed of statutes as the highest expression of the general will – volonté
générale – of the people. An example is the Constitution (‘Staatsregeling’) of
the Batavian Republic, in which, according to Article 5, ‘the statute is the
will of the total societal body, expressed by the majority of citizens or their
representatives’.35 Kant’s generality requirement is also echoed here.36
In documents like the Constitution of the Batavian Republic the spirit
of the French Revolution is reflected. Equality before the law was first and
foremost a way for the bourgeoisie to gain access to public offices and
secure ownership. The privileges of the nobility and clergy were abandoned
completely. A law which consists of a set of general provisions was the perfect
tool to accomplish this purpose through legal means. Böhtlingk still adhered
to this Enlightenment concept of a statute as a material general and abstract
rule;37 statutes ought to express the people’s general will. In this Böhtlingk
followed Jean-Jacques Rousseau’s concept of volonté générale.
Böhtlingk’s second argument concerns legal certainty. The essence of the
legality principle for Böhtlingk is to prevent arbitrary acts of government.38
The conception of rechtsstaat which Böhtlingk embraces is government by
general and abstract rules. In his ‘new concept of the rechtsstaat’ (‘nieuwe
rechtsstaatgedachte’) Böhtlingk demands that all acts of government are
brought under general rules.39 The key example is the Meerenberg case from
35 Article 5 Staatsregeling van 1798 (Constitutional Rules for the Batavian People 1798): ‘De wet is
de wil van het geheele maatschappylyk lichaam, uitgedrukt door de meerderheid of der burgeren of
van derzelver vertegenwoordigers. Zy is hetzy beschermende of straffende gelyk voor allen. Zy strekt
zich alleen uit tot daaden, nimmer tot gevoelens. Alles wat overeenkomt met de onvervreemdbare
regten van den mensch in maatschappy, kan door geene wet verboden worden. Zy beveelt, noch
laat toe, hetgeen daarmede strydig is.’ (‘The law is the will of the total societal body, expressed by
the majority of citizens or their representatives. The law is either of protective or punitive equality
for all. It extends only to acts, never to feelings. Everything which corresponds to the inalienable
human rights in society, may be prohibited by no law. It bans, and does not allow, anything which
is in conflict with this.’).
36 Article 6 Staatsregeling van 1798 is an expression of Kant’s Categorical Imperative and the biblical
Golden Rule: ‘Alle de pligten van den mensch in de maatschappy hebben hunnen grondslag in
deze heilige wet: doe eenen ander niet, hetgeen gy niet wenscht dat aan u geschiede, doe aan
anderen, ten allen tyde, zoo veel goeds, als gy in gelyke omstandigheden van hun zoudt wenschen
te ontvangen’. (‘All the duties of man in society have their foundation in this holy law: do not do
unto others what you do not want others to do unto you, do unto others, at all times, as much
good as you would wish to receive from them in similar circumstances.’).
37 Surprisingly enough Böhtlingk and Logemann 1966, at pp. 22-24, refer on these pages to Carl
Schmitt’s elaboration in Constituonal Theory (at pp. 138-147) on this – according to Schmitt –
‘liberal-democratic’ rechtsstaat conception of a statute.
38 van Ommeren 2009, at p. 63.
39 Böhtlingk and Logemann 1966, at p. 17.
Jeroen Kiewiet 111
1879 in which the Crown was considered to lack the authority to enact on
its own – without parliamentary consent – a general regulation prescribing
penalties for specific criminal offences.40 A contemporary problem is the
increasing delegation of legislative powers. The link between the parliamentary
statute and a concrete act of government has in many cases become really
thin.41
For a long time the purely formal statute has been criticised as being at odds
with the principles of the rechtsstaat. Even half way into the 20th century,
Böhtlingk claimed that the Dutch Constitution prescribed a material
concept of a statute, thereby criticising the practice of budget acts, royal
marriage acts, etc.42 Böhtlingk was, as Van Ommeren correctly points out,43
in a minority position regarding the claim that the Dutch Constitution
(‘Grondwet’) prescribes a material concept of statutes. This shows the
controversial character of this topic.
From a legal certainty perspective, the generality of rules is not a purpose
as such, but a safeguard against light-hearted limitations of the rights
and legal expectations of citizens.44 The generality of the rule forces the
legislator to design a statute which can be imposed on all those whom the
law addresses. In this sense generality is not promoted because of a desire
for equal treatment, but to limit arbitrary law-making. Citizens’ rights
40 Hoge Raad 13 January 1879, Rechtspraak van de Week 4330. In Hoge Raad 22 juni 1973,
Nederlandse Jurisprudentie 1973, 386 (fluoridering) it was decided that the delegation of far-
reaching authorities – de facto forcing civilians to accept an intrusion (in this case: fluoride in
drinking water) – should always be based on a parliamentary statute.
41 This was already noticed by constitutional lawyers in the 1920s but it is still an ever increasing
problem which is located mainly in the elaborate route of the adjudication of public authorities.
42 Böhtlingk and Logemann 1966, at p. 51: ‘wetgevers niet bevoegd bij wet in formele zin […]
andere regels te maken dan naar buiten werkende algemene regels.’ (‘legislators are not competent
by an act of parliament […] to create different rules than outward functioning general rules.’) It
must be noted that the book was finished earlier than its publication in 1966 because of the sudden
death of Böhtlingk in 1958.
43 van Ommeren 2009, at pp. 60-65.
44 A good example can also be found in Article 19, first clause, of the German Constitution
(‘Grundgesetz’): ‘Soweit nach diesem Grundgesetz ein Grundrecht durch Gesetz oder auf Grund
eines Gesetzes eingeschränkt werden kann, muß das Gesetz allgemein und nicht nur für den
Einzelfall gelten.’ (‘Where, under this Basic Law, a fundamental right can be limited by law or
pursuant to a law, the law must apply generally and not just for an individual case.’) Emphasis
added.
112 The individual case and the general rule
‘The law can be bad, unjust, but this danger is reduced to a minimum
because of its general and abstract composition. The protective character
of the law, indeed, its raison d’être itself, lies in its general character.’47
The generality of rules is an essential part of the rechtsstaat or the rule of law;
it prevents arbitrary – ad hoc – lawmaking. The form of the law, its enactment
according to the constitutional procedure by the legislature, requires
generality and therefore universality. General rules bind the state to its own
rules, thereby enhancing the predictability of the law. Legal certainty in the
sense of the predictability and foreseeability of the law can only be conceived
of in a system of general rules The generality of rules is a requirement of the
rechtsstaat that should still be taken very seriously; in view of the aggravating
complexity of the legal system with its articulated legal norms and delegation
of authority, the principle of the generality of rules is permanently in danger.
45 As in the famous words of John Locke, Second Treatise of Government, Section 202 of Chapter
XVIII in Book II: ‘Wherever law ends tyranny begins.’
46 In the 19th century constitutional law was mainly engaged with the reduction of the political
power of the sovereign monarch. At the start of the 20th century many constitutional theorists
commenced an attack on the ‘will theory’ of constitutional law. In this theory the will of the
monarch was law, as clearly expressed in John Austin’s Command Theory in his The Province of
Jurisprudence Determined. Hart 1994, Hart’s Chapters II-IV of The Concept of Law are a rejection
of Austin’s Command Theory.
47 Duguit 1923, at p. 97; Traité de Droit constitutionnel, vol. II, 1923, at p. 145. I quoted this
translation in English from Schmitt 2008, at p. 196.
Jeroen Kiewiet 113
4. Solidarity
Loenen stresses in her article the paradox in her position: ‘it is in each
individual’s interest that it is not always sought to do justice in the individual
case. After all, it is in the interest of each citizen that the general rules are
applied, even in situations when the application leads to inequitable results
in his/her case, as without this generality society cannot function properly’48
(translation JK). According to Loenen ‘society cannot function properly’
without the ‘generality of rules’, because unlimited demands and expectations
striving for ‘total justice’ may be harmful to other citizens’ rights and interests.
This is difficult to refute. The human freedom to act is always constrained by
social limitations. The mere fact of living together in the same space implies
that we are limited by others when we wish to satisfy our demands. When
demanding a certain good we can always be confronted with another person
who wishes the same good. Freedom, therefore, is necessarily limited by
rules. The point of having law at all lies in this limitation of freedom.
But I suspect that Titia Loenen takes the argument one step further. For
Loenen ‘living together means giving and taking.’49 In order to allow society
to ‘function properly’ freedom is not only restricted due to necessity, but it
also demands reciprocity among members of society. Solidarity is the set of
ties that bind people in society together;50 this is based on reciprocity.51 It is
48 Loenen 1996, at p. 134: ‘Bovendien is het, hoe paradoxaal dat wellicht ook klinkt, evenzeer in
ieders individuele belang dat er niet altijd gestreefd wordt naar recht doen aan het individuele geval.
Iedere burger heeft immers belang bij algemeenheid van regels die toegepast worden, ook al valt
toepassing soms voor hem/haarzelf onbillijk uit, aangezien de samenleving anders niet goed kan
functioneren.’ (Moreover it is, however paradoxical as it may sound, just as much in everyone’s
individual interest that there is not always strived to do justice in the individual case.’).
49 Loenen 1996, at p. 134: ‘Samenleven betekent geven en nemen.’
50 Loenen 2010b, at p. 307: ‘[…] [K]an solidariteit worden gefundeerd in het bewustzijn van
mensen dat zij voor een menswaardig bestaan afhankelijk zijn van anderen. Solidariteit lijkt dan
meer een eis van redelijkheid en wederkerigheid: mensen kunnen niet zonder elkaar.’ (‘ […] can
solidarity be founded in the consciousness of people that for a dignified life they are dependent on
others. Solidarity then appears to be more a requirement of reasonableness and reciprocity: people
cannot live without one another.’).
51 I speak explicitly of solidarity, based on reciprocity, to distinguish this from solidarity as altruism in
which reciprocity is not present.
114 The individual case and the general rule
a matter of giving and taking. Not only of tokens, like gifts,52 but also of
helping of each other and caring for each other.
Helping and caring as expressions of solidarity have largely become a task
of the government.53 It is thus externally organised solidarity, which is
organised outside the immediate relationship between the people involved.
Durkheim would call it mechanical – as opposed to organical – solidarity.54
Think of medical care, retirement, unemployment, etc. The reciprocity that
characterises solidarity is now hidden in the relation between taxpayers
funding these social arrangements, on the one hand, and, on the other,
benefactors of these collective arrangements. The distribution of social
services is primarily made by the government as an intermediary. The link
of solidarity is no longer directly visible: the one delivering (a taxpayer) does
not see the result (someone receiving extensive medical care). The one who
is receiving help and care cannot do anything in return for the one who has
helped him because there is no concrete person or group delivering solidarity,
but only the abstract group of taxpayers.
Understandably, the benefactors do not recognise that as a matter of fact
they in turn are supported by their fellow citizens. From the viewpoint of
solidarity the obligation to do something in return for the help received is
still there. But people receiving help and care from the state often do not see
it that way. For them it is a right which is owed to them by the state, and the
state is obliged to deliver ‘total justice’.55 Expectations regarding the help and
care that the state can offer everyone to achieve a good standard of living are
sky-high, but it is mostly forgotten that solidarity is still a matter of giving
and taking, and not only a matter of taking by people who claim to have a
right to a high standard of social arrangements. This a-symmetry is the core
of Loenen’s critique of the arrangement of solidarity by the state.
In my understanding the problem with the state organisation of solidarity
as perceived by Loenen is that in the long run it does not achieve its goal
of a society in which people are really living together, in the sense of
52 The classic example is gift exchanges (the Kula ring) among the inhabitants of the islands of the
Trobriand Islands, described by Bronislaw Malinowski in Argonauts of the Western Pacific 1922.
53 Described in detail by Loenen 2010b, at pp. 312-327.
54 Loenen 2010b, at p. 308.
55 Loenen 2010b, at p. 323. Titia took this term from Friedman 1986, at p. 23.
Jeroen Kiewiet 115
helping each other and caring for each other. State-organised solidarity
has, on the contrary, made solidarity itself quite unpopular, but a society
without solidarity is an empty and meaningless one. As Loenen points out,
the popularity of personal freedom has grown, at the expense of the most
vulnerable and marginalised people in society, which is the ‘true crisis of the
welfare state’.56 The greatest challenge to present-day society is the question
as to how or by what state-organised solidarity can be replaced.
In my opinion, in the discussion on solidarity the generality of rules is
relevant in two ways. First, general rules may be regarded as the expression of
solidarity; they can express certain common goals of a society. For example,
the constitutional provisions on social security are expressions of these
common goals.57 These constitutional provisions are expressions of largely
shared values in society. But they are not only expressions of these values; they
also function as guidelines for the development of new legislation. Secondly,
the generality of rules expresses an abstract choice between interests. It is not
the interests and position of the parties in a specific case that are considered,
as in a judge’s decision. This abstract balancing of interests in statutes by
the legislature reflects what solution is best for society as a whole. We are
reminded of Aristotle’s remark that it is impossible, and not even desirable,
for the legislator to foresee every possible individual case; it is a duty for the
legislature to come up with general rules, and to have the judge to come up with
concrete decisions in individual cases. But judges should be reluctant to put
their decisions in place of the general balancing of interests by the legislature.
Judges are not equipped with the instruments, such as departmental staff,
to review the general effects of their decisions, and it is very questionable if
politically controversial decisions should be made by judges instead of the
legislature in view of the democratic legitimacy of the judiciary. If people
understand the concept of solidarity as reciprocity properly, it makes sense
to sometimes refrain from claiming one’s right in court, because then the
a-symmetry of only taking and not giving back is recognised. Therefore, in
many cases, the abstract choice between the interests of the legislator should
be respected instead of seeking individual justice.
5. Conclusion
The generality of rules is a tricky legal theoretical topic. On the one hand, it
is very hard to phrase a solid philosophical argumentation. A moral approach
seems to demand a focus on doing justice to the individual case and not
on generality. On the other hand, lawyers and legal scholars know that the
generality of rules does matter. In her article ‘Recht en het onvervulbare
verlangen naar individuele gerechtigheid’ Titia Loenen takes a position in
favour of the generality of rules and I think with good reason. She draws
attention to the danger that a shift within the balance of powers is inevitable
when citizens become dependent on the courts to decide systematically
whether a deviation from the rule is required because of reasonableness and
fairness.
However, the constitutional law argument regarding the division of powers
can be expanded, as I have tried to show in this essay. The essence of the
generality of rules in the conception of rechtsstaat or the rule of law is to rule
out ad hoc legislation. The traditional rechtsstaat doctrine requires statutes
to be general and abstract rules. Constitutional legal scholars, notably
Böhtlingk, have advocated sticking to a concept of a material statute. The
core of his argument is still attractive and gives us an argument to embrace
the generality of rules as much as possible: it is a safeguard against ad hoc
regulation because it limits infringements on citizens’ rights or interests by
demanding the generality of the rule.
I think that Titia Loenen is actually concerned with the foundations of
solidarity in our society. Her article can be interpreted, as I have shown, as
a warning. Citizens claim a right to support and care from the state, which
has almost monopolised solidarity. Thus, citizens have become dependent
on the state, while at the same time their expectations of the level of social
arrangements are sky-high. They demand ‘total justice’ from the state, while
the taxpayers are really providing the funds for these social arrangements.
Reciprocity, as the core of solidarity, is no longer in the picture; those receiving
help and care do not feel any obligation towards the state, and those paying
Jeroen Kiewiet 117
for that help and care see a state-dependent group that is demanding ‘total
justice’.
Loenen sees the biggest challenge nowadays as providing solidarity with a
new foundation, which avoids a restoration of the older arrangements of
solidarity in families and religious communities. The gains of being free
from these institutions are clear; these institutions were oppressing for the
free development of individuals. What would be a good replacement for
these institutions? In recent years the welfare state has increasingly been
dismantled, for instance regarding social and unemployment benefits.
Altogether society has undeniably taken a turn to a more egocentric mentality
of taking care of one’s own business first. The competition among people in
the workplace and on the job market is increasing. The welfare state with its
over-institutionalised arrangements no longer exists, but at the same time
alternative social arrangements, based on a different form of solidarity, have
not yet been formed.
What will be the demands on the legal system in the coming decades? The
‘tragic heroism’ of law probably no longer lies in the expectations of citizens
towards the social welfare state. But the expectations towards the legal
system have not yet been relinquished. Illustrations of such expectations can
be found in criminal law with its increasing focus on the victim, and in
the expected benefits of regulating previously hardly regulated agencies like
financial institutions or public housing co-operations. Titia Loenen’s appeal
for the generality of rules has demonstrated to me that abstract rules can
serve as a means to achieve a prudent legal system, not based on ad hoc rules.
118 The individual case and the general rule
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RM Themis, Vol.157 No. 4, 1996, pp. 123-136.
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Achtergronden, Boom, Den Haag, 2010, pp. 263-303.
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Achtergronden, Boom, Den Haag, 2010, pp. 305-336.
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Jeroen Kiewiet 119
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Achtergronden, Boom, Den Haag, 2010, pp. 51-67.
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Part II
1. Introduction
Equality is a core element of citizenship: to be a citizen means to be entitled
to equal treatment with other citizens. Yet the power of states to define
and grant the status of national citizenship is still considered to be one of
the pillars of national sovereignty. This entails the power to differentiate
between a state’s own nationals and foreigners with regard to their rights
and legal protection. In this sense citizenship is, as Bosniak put it, ‘soft on
the inside but hard on the outside’.1 However, the power of states to treat
foreigners differently from nationals is increasingly limited by international
human rights law, including the right to non-discrimination in Article 14
of the European Convention on Human Rights (ECHR). As De Schutter
points out, the prohibition of discrimination on the grounds of nationality
is emerging as a general principle of international and European human
rights law.2
Within the law of the European Union (EU), Article 18 of the Treaty on
the Functioning of the European Union (TFEU) prohibits discrimination
on the basis of nationality, within the scope of the treaties (the TFEU and
the Treaty on the European Union, TEU). With regard to EU citizens this
provision is inclusive: it ensures equal treatment for EU citizens in other
Member States and plays a key role in enabling free movement and giving
substance to EU citizenship. However, Article 18 TFEU seems to be also
1 Bosniak 2006, at p. 4.
2 de Schutter 2009, at p. 78.
124 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
3 This differentiation also implies a privileged status for EU citizens compared with EU nationals
who have not left their ‘own’ country, also known as reverse discrimination. However, this
differentiation, which results from the material scope of EU law rather than the personal scope of
Art. 18 TFEU, will not be dealt with in this contribution.
4 ECtHR, Dhabhi v. Italy, 8 April 2014 (Appl.no. 17120/09).
Evelien Brouwer and Karin de Vries 125
5 See Groenendijk 2012. Dealing earlier with the scope of former Art. 12 TEC: Hublet 2009 and
(in Dutch) Boeles 2005, at p. 500 ff.
6 Below, we only deal with this question with regard to the EAW, for the subject of data protection
and non-discrimination of TCNs we refer to Brouwer 2011 and her (Dutch) annotation to the
judgment of the CJEU, Case C-524/06, Huber v. Germany [2008], JV 2009/110, at pp. 515-532.
7 In this contribution we focus on discrimination based on nationality and will not deal with the
right of non-discrimination on grounds of racial or ethnic origin as protected in Art. 14 ECHR
but also in Directive 2000/43 (Racial Equality) and Directive 2000/78 (Employment Equality).
The meaning of the non-discrimination clauses in these Directives for TCNs has been extensively
dealt with in: Morano-Foadi and de Vries 2012.
126 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
10 Standing case law since Belgian Linguistic Case: ECtHR, Case ‘Relating to certain aspects of the
laws on the use of languages in education in Belgium’ v. Belgium, 23 July 1968 (Appl.no. 1474/62,
1677/62, 1691/62, 1769/63, 1994/63, 2126/64).
11 However, this Protocol has been ratified by a limited number of EU Member States, see the Treaty
Office of the Council of Europe: www.conventions.coe.int.
12 See the case law discussed in paras. 2.2-2.4.
13 ECtHR, Moustaquim v. Belgium, 18 February 1991 (Appl.no. 12313/83), at para. 49.
128 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
the applicant was a Russian national who at the time of the judgment had
lawfully lived in Greece for 16 years.18 She had attended university in Athens
and obtained a Greek law degree, but was eventually denied admission to the
Greek bar because she did not meet the condition, stipulated in the Greek
legislation in force at the time, of having Greek nationality or the nationality
of another EU Member State. The ECtHR found a violation of Article 8
ECHR (the right to private life) taken alone, but dismissed the complaint
of nationality discrimination (Arts 14 and 8 ECHR). It began by stating
that differences in treatment concerning access to a particular profession
generally do not fall within the scope of Article 14. In this case, having
already found a violation of Article 8, the ECtHR did not have a choice but
to find Article 14 applicable as well.19 However, it held that it fell within the
margin of appreciation of the Greek authorities to decide that lawyers had
to have Greek nationality or the nationality of another EU Member State.
The ECtHR took into account that the profession of a lawyer, although a
liberal profession, involves the exercise of certain public functions relating to
the administration of justice. The Greek authorities were therefore granted a
large area of discretion to regulate this field.20
The case of Ponomaryovi v. Bulgaria concerned two Russian teenagers who
were living in Bulgaria and were excluded from secondary education because
they could not pay the required school fees.21 Under the Bulgarian National
Education Act the applicants had to pay sums equivalent to € 800-1300 per
year, whereas school enrolment was free of charge for Bulgarian nationals and
for certain categories of foreigners including, inter alia, holders of a permanent
residence permit and minor children of EU migrant workers. The latter
exemption had been included to implement EEC Council Directive 77/486
on the education of children of migrant workers when Bulgaria joined the
EU.22 Taking into account the importance of the right to education, which
is directly protected by the ECHR, the ECtHR found that Bulgaria had
discriminated against the applicants on the grounds of their nationality and
immigration status and had violated Article 14 in conjunction with Article 2
First Protocol ECHR. However, the ECtHR also noted in general terms
that states may restrict access to ‘resource-hungry public services – such as
welfare programmes, public benefits and health care by short term and illegal
immigrants, who, as a rule, do not contribute to their funding’. It continued
to say that a state may also ‘in certain circumstances, justifiably differentiate
between different categories of aliens residing in its territory. For instance,
the preferential treatment of nationals of Member States of the European Union
[…] may be said to be based on an objective and reasonable justification, because
the Union forms a special legal order, which has, moreover, established its own
citizenship’ [emphasis added].23 The ECtHR thus confirmed its reasoning in
Moustaquim and C. v. Belgium, to which it also referred.
It follows from the Bigaeva and Ponomaryovi judgments that preferential
treatment of EU citizens as compared to TCNs can be justified in other
contexts than expulsions or even migration policy. Although it is clear
from Ponomaryovi v. Bulgaria that states have a considerably smaller
margin of appreciation where access to (primary and secondary) education
is concerned, the ECtHR accepts that under certain circumstances EU
citizens may receive favourable treatment as regards access to public benefits.
Nevertheless, TCNs who are long-term lawful residents of the host state are
often entitled to equal treatment with the nationals of those states. This is
discussed in the following section.
22 ECtHR, Ponomaryovi v. Bulgaria, 21 June 2011 (Appl. no. 5335/05), at para. 32.
23 ECtHR, Ponomaryovi v. Bulgaria, 21 June 2011 (Appl. no. 5335/05), at para. 54.
Evelien Brouwer and Karin de Vries 131
however, the ECtHR established a line of case law holding that differences
in treatment based exclusively on the ground of nationality can only be
justified by ‘very weighty reasons’. This was first decided in the well-known
judgment of Gaygusuz v. Austria, concerning the access of a Turkish national
to unemployment benefits.24 Gaygusuz was not eligible for benefits due to his
foreign nationality and claimed discrimination on the grounds of national
origin. Unlike in Moustaquim and C. v. Belgium, the ECtHR found that
Gaygusuz, who had long-term residence in Austria, could be compared to
nationals of that state. In this regard, the ECtHR pointed out that Gaygusuz
was lawfully resident in Austria, had worked there and had contributed to
the unemployment insurance fund in the same capacity and on the same
basis as Austrian nationals.25 Therefore, and in the absence of a sufficient
justification for a difference in treatment, the ECtHR found that he should
have been entitled to receive emergency unemployment assistance on an
equal footing with Austrian nationals.
In subsequent judgments the ECtHR confirmed that differences in
treatment based exclusively on nationality require very weighty reasons to
be justified. The case of Koua Poirrez v. France concerned an Ivory Coast
national who had been adopted by a French national at the age of 21.26 His
application for an allowance for disabled adults was denied on the grounds
that he did not have French nationality or the nationality of a state having
signed a reciprocity agreement with France. The ECtHR held, in contrast
with the Moustaquim judgment, that France could not give preferential
treatment to its own nationals and/or nationals of countries with which a
reciprocity agreement had been signed and found a violation of Article 14 in
conjunction with Article 1 First Protocol ECHR.27 It did so also in the case
of Luczak v. Poland, concerning a French national who was denied access
to the Polish Farmers’ Social Security Fund.28 Like in Gaygusuz v. Austria,
the ECtHR stressed that Luczak was permanently resident in Poland, had
previously been affiliated to the general social security scheme and paid
contributions to the farmers’ scheme.29 The ECtHR took into account several
other considerations, including that Luczak had been left without any social
security cover and that the government had not convincingly shown that the
applicant’s exclusion from the farmers’ scheme served the general interest.30
The case of Andrejeva v. Latvia concerned a former national of the Soviet
Union who had lived in Latvia since the age of 12 and had obtained lawful
residence there as a ‘permanently resident non-citizen’ after the Soviet
Union’s demise.31 The periods she had spent working outside Latvia had not
been taken into account in the calculation of her pension benefits, while this
would have been the case if she had had Latvian citizenship. The ECtHR
agreed with the applicant that this difference in treatment violated Article 14
together with Article 1 First Protocol. The ECtHR stressed that the applicant
was stateless and therefore did not have stable legal ties with any state other
than Latvia.32 Like in Koua Poirrez, the ECtHR dismissed the Latvian
government’s argument that the calculation of periods of employment
abroad was a matter to be addressed through bilateral agreements and stated
that ‘by ratifying the Convention, the respondent State undertook to secure
to ‘everyone within [its] jurisdiction’ the rights and freedoms guaranteed
therein. Accordingly, in the present case the Latvian State could not be
absolved of its responsibility under Article 14 of the Convention on the
ground that it is not or was not bound by inter-State agreements on social
security with Ukraine and Russia.33
Lastly, Fawsie v. Greece and Saidoun v. Greece concerned applicants who
had been granted refugee status in the respondent state.34 These cases again
concerned the denial of a family allowance, which was reserved for Greek
nationals and refugees of Greek origin and later also for nationals of other
cases? Looking at the broader body of ECtHR case law, it appears that the
Court relied on the ‘special legal order’ argument in cases where there was no
obligation, under Article 14 ECHR, to grant TCNs equal treatment with the
state’s own nationals. In such cases, where states are allowed to differentiate
between foreigners and their own nationals, they may also differentiate
between different categories of foreigners and hence grant preferential
treatment to EU citizens from other Member States (e.g. they may grant
benefits to EU citizens shortly upon their arrival or regardless of meeting
certain income standards while TCNs would have to first obtain long-term
or unconditional residence). On the other hand, the case law discussed in
subsection 2.4 shows that there are situations where foreign nationals must
be granted treatment which is equal to the state’s nationals. In such cases,
unless EU citizens are granted preferential treatment even compared to the
state’s own nationals (so-called ‘reverse discrimination’), equal treatment will
have to be ensured for nationals, EU citizens and TCNs alike. It appears
from the case law that an important factor weighing in favour of treating
foreigners on a par with nationals is long-term lawful residence.35 However,
the case for equal treatment is also stronger where the applicant is stateless
or has refugee status.36 Moreover, the room for differentiation appears to
depend on the nature of the right at stake: in Moustaquim, which concerned
expulsion, the ECtHR accepted that the applicant was treated differently
from EU nationals, although he had been lawfully resident since the age of
one. On the other hand, in Ponomaryovi the margin of appreciation for the
state was narrow (partly) because the right to education was at stake.37
35 See also ECtHR, Niedzwiecki v. Germany, 25 October 2005 (Appl.no. 58453/00) and ECtHR,
Okpisz v. Germany, 25 October 2005 (Appl.no. 59140/00).
36 See ECtHR, Andrejeva v. Latvia (Grand Chamber), 18 February 2009 (Appl.no. 55707/00),
ECtHR, Fawsie v. Greece, 28 October 2010 (Appl.no. 40080/07); ECtHR, Saidoun v. Greece,
28 October 2010 (Appl.no. 40083/07) (discussed in 2.4). See also ECtHR, Bah v. the United
Kingdom, 27 September 2011 (Appl.no. 56328/07), at paras. 45 and 47.
37 It is not clear to what extent the residence status of the applicants played a role in Ponomaryovi:
although they did not have lawful residence at the time of the difference in treatment, they had
been long-term lawful residents of Bulgaria until they turned 18. In ECtHR, Anakomba Yula v.
Belgium, 10 March 2009 (Appl.no. 45413/07), the ECtHR found a violation of Arts 14 and 6
ECHR, despite the applicant’s unlawful residence status, because of the importance of the right
involved.
Evelien Brouwer and Karin de Vries 135
term resident TCNs should be granted rights ‘as near as possible’ to those
of EU citizens to ensure their integration in the EU. This goal of giving
legally residing TCNs rights which are ‘comparable’, respectively ‘as near as
possible’, to those enjoyed by EU citizens was laid down in the preambles
to Directive 2003/86 on Family Reunification and Directive 2003/109 on
long-term resident third-country nationals.41 Although the importance of
non-discrimination and the right to equality for TCNs has been emphasized
in later EU policies,42 the Tampere goal of giving TCNs rights equal to those
of EU citizens seems to have been abandoned. Or in the words of Carrera:
‘the excitement about the potentials of the Tampere Programme gradually
became a shared nostalgia’.43
Where initially the purpose of equal treatment was clearly connected to
the protection of human rights or fair treatment of TCNs, in more recent
instruments the EU legislator applies the right to equal treatment more as a
tool to attract highly-skilled migrant workers or researchers.44 In other words,
the goal of strengthening the position of those ‘within’ the EU changed into
the goal of attracting a selected group of migrants from ‘outside’ the EU.
Furthermore, the equality clauses which have been included in the different
EU instruments leave the Member States with a wide discretionary power.45
Especially within the area of social security and social benefits, we see that
EU laws, either by vague definitions, or references to national laws, allow
Member States to limit the scope of protection of equality. For example, Article
41 Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251 p.12),
at recital 3, and Directive 2003/109 of 25 November 2003 concerning the status of third-country
nationals who are long-term residents (OJ L 16 p. 44), at recital 2.
42 See for example the European Commission, European Agenda for the Integration of third country
nationals, 20 July 2011, COM (2011) 455, at point 8.
43 See Carrera 2014, at p. 153.
44 See for example, Art. 14 of the Blue Card Directive, Directive 2009/50/EC of 25 May 2009 on
the conditions of entry and residence of third-country nationals for the purposes of highly qualified
employment (OJ L 155 p.17), Art. 12 of the Single Permit Directive, Directive 2011/98/EU of
13 December 2011 on a single application procedure for a single permit for third-country nationals
to reside and work in the territory of a Member State and on a common set of rights for third-
country workers legally residing in a Member State (OJ L 343 p.1), and recital 15 of the Directive
2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for
the purposes of scientific research (OJ L 289 p. 15).
45 Morano-Foadi and de Vries 2012, at p. 36 ff.
Evelien Brouwer and Karin de Vries 137
46 Case C-571/10, Kamberaj v. Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano and
others, [2012], RV 2012, no. 38, annotation Groenendijk, at paras. 86, 91. The case dealt with the
differential treatment of an Albanian national in Italy with regard to social benefits for housing, and
the question whether this was contrary to Article 11 (1) (d) Directive 2003/109 of 25 November
2003 concerning the status of third-country nationals who are long-term residents (OJ L 16 p. 44).
47 See de Vries 2013.
48 Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country
nationals for the purposes of highly qualified employment (OJ L 155 p.17), see at recital 16.
138 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
55 Art. 21 (2): ‘Within the scope of application of the Treaty establishing the European Community
and of the Treaty on European Union, and without prejudice to the special provisions of those
Treaties, any discrimination on grounds of nationality shall be prohibited.’
56 Note from the Praesidium, Charte 4473/00 Convent 49, Brussels 11 October 2000. These
explanations have no legal value and are only intended to clarify the provisions of the Charter.
57 Case C-22/08, Vatsouras v. Arbeitsgemeinschaft Nürnberg, [2009] ECR I-04585, at para. 52.
58 See Slingenberg 2014.
59 Case C-45/12, Radia Hadj Ahmed v. Office national d’allocations familiales pour travailleurs salaries,
[2013], at para. 41.
Evelien Brouwer and Karin de Vries 141
Using the wording ‘as it stands’ (in German: ‘nicht ohne Weiteres’; French:
‘telle quelle’; Dutch: ‘niet zonder meer’) the CJEU seems to indicate that
Article 18 TFEU could apply to TCNs, but only if their situation is covered
by EU law. In this case, the CJEU found that the person invoking Article
18 TFEU (and Articles 20 and 21 of the Charter) did not fall within the
categories of persons protected by EU law: neither the mother nor her
daughter, for whom she applied for family benefits, fell within the scope of
Directive 2004/38 or Regulation 1612/68 or of Directive 2003/109.60
In the following section, we address two judgments of the CJEU (and of
one of a national court) which, even if the CJEU did not apply Article 18
TFEU to TCNs, in our view show how this provision could be relevant to
determining the legal position of TCNs in areas not covered by the existing
equal treatment clauses.
3.3. Lopes da Silva: article 18 TFEU, integration and the European Arrest
Warrant
The judgment in Lopes da Silva deals with the implementation of Framework
Decision 2002/584 on the European Arrest Warrant (EAW).61 This case did
not concern migration law, nor the position of a TCN. However, what we
intend to point out here is that the reasoning of the CJEU as to why Article
18 TFEU could be invoked by an EU citizen with regard to the execution of
an arrest warrant seems to be also applicable to legally residing TCNs. The
question raised in Lopes da Silva concerned the optional non-execution clause
in Article 4(6) of the Framework Decision which allows Member States to
refuse to execute an arrest warrant where the requested person ‘is staying in,
or is a national or a resident of, the executing Member State’. Lopes da Silva,
a Portuguese citizen residing at the time of the EAW in France, claimed that
as France did not surrender its own nationals, his extradition to Portugal
should be refused equally on the basis of Article 18 TFEU. The CJEU found
that although Article 4(6) allows limitations to the optional clause to refuse
to surrender a national or resident of the executing state, Article 18 TFEU
60 Case C-45/12, Radia Hadj Ahmed v. Office national d’allocations familiales pour travailleurs salaries,
[2013], at para. 54.
61 Case C-42/11, Lopes Da Silva, [2012].
142 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
4. Conclusion
The prohibition of discrimination on the ground of nationality is gaining
importance as a norm of international and European (human rights) law.
Whereas, for EU citizens, the prohibition of nationality-based discrimination
67 See the CJEU in Case C-187/01 and 384/01, Gözütok and Brugge, [2003] ECR I-01345 dealing
with the EAW and in Case C-411/10 and 493/10, NS v. SSHD, [2011] ECR I-13905 dealing with
the Common European Asylum System.
146 Third-country nationals and discrimination on the ground of nationality: article 18 TFEU
in the context of article 14 ECHR and EU migration law: time for a new approach
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The Equality Challenge, Edward Elgar Publishing, Cheltenham, 2012, pp. 16-44.
de Schutter, O., Links between migration and discrimination (Report prepared
for the European Commission), Publications Office of the European Union,
Luxembourg, 2009.
Slingenberg, L., The Reception of Asylum Seekers under International Law. Between
Sovereignty and Equality, Hart Publishing, Oxford, 2014.
de Vries, K.M., ‘Towards Integration and Equality for Third-Country Nationals?
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pp. 248‑258.
Wiesbrock, A., Legal Migration to the European Union, Martinus Nijhoff Publishers,
Leiden, 2010.
A tale of two boys
Matthijs de Blois
1 Mishlei/Proverbs 22:6.
2 HR 22 January 1988, ECLI:NL:HR:1988:AD0151,Netherlands Yearbook of International Law,
Vol. XXII 1991, p. 410 (Maimonides); NJ, 891 m.n. E.A.A.; NJCM-Bulletin: Nederlands tijdschrift
voor de mensenrechten, Vol. 13, No. 3, 1988 3, pp. 214-220, m.n. Reiner de Winter. See also de
Blois 2007.
148 A tale of two boys
2. Legal standards
2.1. Maimonides
In the Maimonides case the father of the boy concerned (Aram) held that
the Board of the school, by not admitting his son, had acted unlawfully in
terms of the central tort provision of the Civil Code (at that time Article
1401). In that connection he referred to several national and international
provisions against discrimination: Article 1 of the Dutch Constitution,
Articles 3 and 14 of the European Convention on Human Rights (ECHR)
and Article 3 (b) of the Convention against Discrimination in Education.4
Next to that he also invoked Article 2 of the First Protocol. This provision
obliges the State, in the exercise of its functions in relation to education,
to respect the right of parents to ensure that the education and teaching of
their children is in conformity with their own religious and philosophical
3 R (on the application of E) v. The Governing Body of JFS and the Admissions Appeal Panel of JFS and
others [2009] U.K.S.C. 15. See also Weiler 2010; Kiviorg 2010; Schwarz 2010; McCrudden
2011; Ordene 2012; Petty 2014.
4 The text of the Convention against Discrimination in Education was adopted by the General
Conference of the UNESCO on 14 December 1960. It entered into force on the 22nd of May
1962. The Netherlands has been a State party since the 25th of June 1966.
Matthijs de Blois 149
convictions. Initially the claimant held that the admission policy was based
on a racial distinction. This claim was rejected by the court of first instance
(the President of the Amsterdam District Court). An appeal against this
finding was dismissed by the Amsterdam Court of Appeal, having regard to
the fact that descent is not exclusively decisive for the determination of the
Jewishness of a person, because according to orthodox standards conversion
is also possible. The claimant did not lodge an appeal in cassation against this
part of the judgment on appeal. The Supreme Court concluded that ‘it has
therefore been established as common ground between the parties that there
has been no discrimination on the ground of race in the present case.’5 This,
notwithstanding the fact, referred to by the Advocate General in this case,
that on behalf of the claimant in the oral proceedings before the Supreme
Court the accusation of racial discrimination was repeated. Apart from the
specific reference to racial discrimination, the claimant held that the School,
by not admitting his son, had acted unlawfully against him, because he,
as a parent, had the fundamental right to have his son follow the Jewish
education he considered suitable for him. The other party in the conflict,
the Foundation that had established the Maimonides Secondary School, also
invoked human rights provisions: Article 23 (freedom to provide education)
and Article 6 (freedom of religion) of the Constitution, as well as Article 27
of the International Covenant on Civil and Political Rights (ICCPR) (the
rights of minorities). This last provision did not play any role in the final
judgment of the Supreme Court. In that judgment, next to Articles 23 and 6
of the Constitution, also Article 9 ECHR (freedom of religion) was applied.
The focus in the procedures before the Dutch courts was the conflicting
claims based on the freedom to provide education, the freedom of religion
and the equality principle. In other words, the legal framework of the Dutch
case is a collision of human rights. In the judgment of the Court of Appeal
and also in the Opinion of the Advocate General in the procedure before the
Supreme Court, the balancing of the relevant rights was decided in favour of
the claimant. Arguments in favour of tipping the balance were the affinity of
the father with Judaism, his interest to have his son follow education at the
Maimonides school, the fact that there was no other orthodox Jewish school
which could serve as an alternative and, finally, the fact that there were many
other youngsters from the Liberal Jewish synagogue who were admitted to
the school (because their mothers were considered to be Jewish). The final
outcome of the case was, however, a decision by the Supreme Court in favour
of the Maimonides Secondary school. This was because, first, the rights of
parents to ensure that the education and teaching of their children is in
conformity with their own religious and philosophical convictions (Article
2 of Protocol 1 and Article 23 of the Constitution) do not have horizontal
effect. These rights only impose a duty on the State, while they do not create
enforceable rights against a private institution, such as the school. Next to
that, the Court observed that, in view of the freedom of religion, the right
to provide education according to religious or other beliefs in Article 23 of
the Constitution weighs so heavily that the board of the school had the right
to refuse the admission of a child, in conformity with the religious criteria
applied by it. That was so, even if the parents have a strong and reasonable
preference for the education provided by the school, and the school is the
only one providing education of this kind. The Court made only a proviso
for ‘exceptional circumstances’, which did not occur here.6
2.2. JFS
The legal context of the JFS case is different. It is a judicial review procedure,
initiated by the father of the boy concerned (M.), against the authorities of
the JFS, which focused on the complaint that the JFS had been guilty of racial
discrimination in terms of the Race Relations Act 1976. It was submitted that
applying the matrilineal test implied discrimination on the basis of ethnic
descent and, by that, racial discrimination, either direct or indirect. The
opposite view was that the school applied religious, not racial criteria and
therefore did not discriminate on racial grounds. Or, in case the submission
of indirect discrimination was accepted, this was justified, because the school
used proportionate means to achieve a legitimate goal. The majority of the
Justices of the Supreme Court of the UK concluded that there was direct
rather than race.’13 Two other Justices concluded that there was a case of
– unjustified – indirect discrimination. The legal debate before the English
courts was limited to an interpretation of the relevant provisions of the Race
Relations Act. The only question was whether or not the admission policy
could be qualified as racial discrimination. The possible human rights of
the defendant were not seen as rights which, as a matter of fact, should
be taken into account as counterbalancing interests. The religious freedom
issues involved only indirectly informed the choices made by the Justices,
who had to decide on the interpretation of the Race Relations Act. Lord
Rodger, for example, remarked that ‘[t]he majority’s decision leads to such
extraordinary results, and produces such manifest discrimination against
Jewish schools in comparison with other faith schools, that one can’t help
feeling that something has gone wrong.’14
2.3. Comparison
At first sight one might be inclined to think that the Dutch approach,
focusing on the balancing of the relevant human rights, was indeed more
likely to be in favour of the school. The legal issue in Maimonides was directly
identified as an issue of colliding fundamental rights. The interests of both
sides could be taken into account on an equal basis. On the other hand, in
the English case, the legal framework was limited to the application of the
Race Relations Act, more specifically to the question of whether or not there
was a case of racial discrimination. In a case of direct discrimination, which
according to the majority of the Justices of the Supreme Court was found in
the JFS case, there was no room for balancing opposing rights or interests.
That, one may think, made it easier to come to the conclusion that there
was no room for the admission policy. That would be an easy explanation
for the different approaches. However, as has been shown, also the balancing
exercise could have led to a decision against the school, as is exemplified
by the judgment of the Amsterdam Court of Appeal and the Opinion of
the Advocate General. And also, the quest for a correct interpretation of
the relevant provision of the Race Relations Act could have resulted in a
decision in favour of the school, as is clear from the minority judgments in
the Supreme Court of the UK. In other words, it is arguable that the legal
framework, as such, cannot have been a decisive explanation for the different
outcomes.
for the manifestations of religions in the public sphere, not only individually,
but also collectively. Traditionally, in Dutch society there were many
collectivities which on the basis of religious of other ideological principles
were active in society, claiming sphere sovereignty against the State. The Dutch
state has always been willing to support (also financially) denominational
institutions that are active in various social sectors, prominently in the field
of education, while observing the principle of non-discrimination between
various religions or other non-religious beliefs.
This brings us to the relationship between the State and the denominational
schools. In the development of the Dutch constitutional traditions in the
field of democracy and human rights, as from the 19th century onwards
the relationship between faith schools and the State was a central issue. As
from the beginning of the 19th century the education of children became
increasingly the concern of the government. Many (mainly Christian)
believers were not satisfied with the imprint of (moderate) Enlightenment
ideals on public education.16 Their ideal became a school, based on religious
principles, and free from any ideological control by the State. The freedom to
establish private denominational schools was recognized in the Constitution
in 1848. In practice, however, that was initially only an opportunity for
the wealthy few. Therefore the so-called ‘school struggle’ focused, from then
onwards, on financial support by the State for the denominational schools.
It was seen as an injustice that parents, who wanted to send their children
to a denominational school, had to pay double for education, compared to
parents who opted for public schools. They not only had to pay for public
schools via taxation, but next to that they had to support the private school
from their own means. Eventually, in 1917, the ‘school struggle ’ came to
an end with the introduction of constitutional provisions which, next to
the freedom of education along denominational lines, guaranteed financial
support by the State for both public and private schools on an equal basis.
This dual system of public and private schools is still the foundation of
the Dutch – rather unique – educational system. It includes primary and
secondary schools and some institutions of higher education with a great
16 For Jewish schools special arrangements were made as from 1817. See Rietveld-Van Wingerden
and Miedema 2003.
Matthijs de Blois 155
Protestantism, was created and the English Sovereign became the ‘Defender
of the Faith and Supreme Governor of the Church of England’, which he or
she remains to this very day. In other words: the Church of England was and
is the Established Church or State Church. The State still has a say in internal
Church affairs, such as the appointment of bishops or the text of the Book of
Common Prayer. Those outside the Church of England (Roman Catholics,
Protestant Dissenters) initially faced brutal persecution and later severe
restrictions. Gradually, especially after the Glorious Revolution (1688), their
situation improved and they could live and worship quietly. As of the second
half of the 17th century, Jews were cautiously granted permission to settle in
the Kingdom again (after their expulsion in 1290). A real equality between
citizens of different faiths in most aspects of life had to wait until the 19th
century, however. All this was brought about without the revolutionary
sharp divide between old and new, which has been a common feature of the
developments in many continental European States, following the example
of the French Revolution. The British development, on the other hand,
gradually went in the direction of religious freedom, while preserving the
Established Church. As a consequence there was never a barrier between
the spheres of the religious and the political, which for example is clearly
distinguishable in the Netherlands, even if it is not as strict as in France.
All this was also reflected in the field of education. Education was initially
primarily provided by Churches and religious (Christian) societies. When
the State became gradually involved in education, in terms of financing and
control, the religious schools were incorporated into the system. There was no
need for a ‘school struggle’ to ensure the public funding of denominational
schools. The relationship with the State varied according to the degree of
Government control and the corresponding extent of the financial support by
Matthijs de Blois 157
20 See on the school system the excellent survey by Wadford 2000. In a publication of the Department
of Education the different types of denominational schools are characterized as follows: ‘Voluntary
aided school: Maintained by LEA [= Local Education Authority], with a (generally religious)
foundation which appoints most of the governing body. Governing body generally responsible for
admissions. Voluntary controlled school: Maintained by LEA, with a foundation which appoints
some (but not majority) of the governing body. LEA generally responsible for admissions. Special
agreement school: Maintained by LEA, with a foundation (generally religious) which appoints
majority of governing body. Governing body generally responsible for admissions.’
158 A tale of two boys
3.3. Comparison
By comparison it can be concluded that indeed the legal system in the
Netherlands more than in the UK allows for respect for the self-understanding
of a religion on its own terms, at least in the field of education. This difference
between the Dutch and the British approaches to both the constitutional
relationship between ‘Church’ and State, and more in particular between
School and State, may therefore be helpful in explaining the difference in the
outcome of both court cases.
4. 1988-2009
There is, however, a third possible explanation. Between the judgments in
the cases of Maimonides and the JFS more than twenty years had elapsed.
These days this is a long period of time with regard to developments in the
field of social values in general and of the law in particular, at least in the
Netherlands and the United Kingdom. Two related developments seem to
be illustrative of the rapid changes in the field of social values and the law in
the period between 1988 and 2009. The first is that secularism has arguably
become stronger in this period. Secondly, it is likely that the primacy of the
principle of equality over religious freedom has been more widely accepted.
4.1. Secularism
To begin with secularism. It is, first of all, useful to clarify this concept.
It has to be distinguished from the notion of secularity, which means the
separation between the secular and the sacred, which finds its expression
21 Weiler 2010.
Matthijs de Blois 159
in the institutional separation between ‘Church’ and State and the respect
for religious freedom. It should also be differentiated from the sociological
concept of secularization, which refers to the decline of the role of religion
in society, due to the process of modernization, although it helps us to
understand the popularity of the idea of secularism.22 That brings us to
secularism. This term refers to an ideology, which aims at the restriction of
religion to the private realm.23 This, far from being a neutral stance towards
religion in society, has been defined ‘as an ideology [that] denotes a negative
evaluation towards religion and might even be appropriately seen as a
particular “religious position” in the sense that secularism adopts certain
premises a priori and canvasses a normative (albeit negative) position about
supernaturalism.’24 Secularism is an idea which has been recognised within
Western culture since the days of the Enlightenment, initially prominent
within intellectual circles. Since the 1960s it has become more and more
prominent, undoubtedly because of the general social trend of secularization,
which resulted in a rapid decrease in not only church attendance but also in
religious beliefs as such. This had important consequences for social values,
for example in the fields of sexuality and personal relations, which were
previously for many people determined by religious precepts. The principle
of moral autonomy, or, in other words, individual self-determination, has
become for many people the ultimate standard, instead of, let us say, the Ten
Commandments. The growing resistance against the moralization of society
by organized religion can be seen as the expression of the popularity of the
ideology of secularism. This development was already strong in and before
1988. It did not fail to have its effects on the law, both in the Netherlands
and the UK: one only has to think, for example, of the legalization of
abortion (in the UK in 1968, in the Netherlands in 1984). It is submitted
here that the trend of secularization and the related popularity of secularism
became even stronger in the period between 1988 and 2009. And again
this is reflected in the field of the law. A prominent example is matrimonial
law. In 1988 the law in any part of the world, including the West, defined
25 See on this the Advice of the Dutch Commission on Equal Treatment: Commissie Gelijke
Behandeling Advies 2008-04 ‘Trouwen? Geen bezwaar!’ and the judgment of the (English) Court
of Appeal in the case of Ladele v London Borough of Islington [2009] EWCA Civ 1357.
26 Riesebrodt 2014.
Matthijs de Blois 161
4.3. Comparison
So far I have reflected on developments in Western society and legal practice,
epitomized as secularism and the priority of equality over religious freedom. It
is not difficult to conclude that in this light the judgment in the Maimonides
case might be considered to be ‘outdated’, even if it would still be seen as the
guiding precedent in Dutch law when it comes to the admission policy of
denominational schools.34 The Dutch Supreme Court allowed for the priority
of religious standards, as determined by religious bodies, independent from
the State, over a claim based on the prohibition of discrimination. On the
other hand, the JFS judgment, in coming to the opposite conclusion, nicely
fits the new developments. The Supreme Court of the UK gave an extensive
interpretation to the prohibition of racial discrimination, which overruled
the tenets of religious law, as interpreted by a religious body. Secular standards
were held to prevail over religious law. The legal rules concerned were about
33 ‘Member States may maintain national legislation in force at the date of adoption of this Directive
or provide for future legislation incorporating national practices existing at the date of adoption of
this Directive pursuant to which, in the case of occupational activities within churches and other
public or private organisations the ethos of which is based on religion or belief, a difference of
treatment based on a person’s religion or belief shall not constitute discrimination where, by reason
of the nature of these activities or of the context in which they are carried out, a person’s religion or
belief constitute a genuine, legitimate and justified occupational requirement, having regard to the
organisation’s ethos. This difference of treatment shall be implemented taking account of Member
States’ constitutional provisions and principles, as well as the general principles of Community law,
and should not justify discrimination on another ground. Provided that its provisions are otherwise
complied with, this Directive shall thus not prejudice the right of churches and other public or
private organisations, the ethos of which is based on religion or belief, acting in conformity with
national constitutions and laws, to require individuals working for them to act in good faith and
with loyalty to the organisation’s ethos.’
34 In a judgment of 24 July 2007 the Amsterdam Court of Appeal applied the Maimonides ruling in
a case on the admission of a pupil to an orthodox reformed college. See de Blois 2008.
164 A tale of two boys
5. Concluding remarks
Why do judgments in similar cases differ as to their outcome? For those
of us who were not part of the bench in these cases the answer can only
be speculative. Judges do have a considerable discretionary power, which
will make the outcome of a court case always, or at least very often,
unpredictable.35 So it will be impossible to provide decisive evidence for an
explanation as to why a court came to a specific conclusion. Nevertheless,
the question remains an intriguing one, especially in cases where issues of
colliding human rights principles are at stake. That is definitely so in the
almost identical cases of the admission of the two boys to Jewish schools in
respectively the Netherlands and the United Kingdom. I have explored three
possible explanations. The first one, the different legal standards applied
by the Supreme Courts involved, does not seem to provide a convincing
answer, having regard to the fact that it was possible in both cases to develop
a strong legal reasoning for an opposite outcome. Part of the explanation can
be derived from the differences between the two legal systems concerned as
to the relationship between the realms of religion and politics, specifically
in the field of education. In that perspective both judgments fit their own
constitutional environment. Finally, arguably, the difference between the
outcomes in the Maimonides and the JFS cases has to be understood in
the light of developments in society and the law between 1988 and 2009
which are characteristic of the whole Western world. From the perspective
of pluralism and respect for religious minorities these developments may
deserve a critical appraisal. But that is a topic for another article.
BIBLIOGRAPHY
1. Introduction
It takes faith for someone to work on equality and human rights as long
as Professor Loenen has done. With all their complexity and controversy,
these two elusive concepts continue to evoke difficult questions. This given
brought Professor Loenen and others to organise a seminar in 2009 bearing
the appropriate title ‘Human rights: a site of struggle over multicultural
conflicts’.1 Religious freedom is a subject which is illustrative of this struggle.
In Dutch society, one of the factors which has enhanced the debate on
religion is the influx of religions other than Christianity.2 Such an influx has
ensued from decolonisation and immigration and entails objective as well as
subjective changes. It has changed the factual (religious) composition of the
population, but it has also impacted on the perception of and ideas about
religion.3
Much has been written about the changes within Dutch society which
the introduction of new religions has brought about. Formerly unknown
religious dress is worn, most prominently the Muslim headscarf, which stirs
debate on the extent to which religious dress in the public sphere should
be allowed (or banned, depending on the perspective taken).4 The same
1 As a result of the seminar, a special edition of the Utrecht Law Review was published: Loenen, van
Rossum, and Tigchelaar 2010.
2 Cf. van Ooijen 2012, at p. 22.
3 For the past ten years at least, an increasingly suspicious stance towards notably Islam can be
discerned. This stance was borne out by political events which were not necessarily related but
seemed part of a general tendency. The politician Geert Wilders and his continuous fierce, hostile
attitude towards Islam has had a notable effect, see also van Ooijen 2012, at p. 38.
4 Especially face veils have met with reluctance. There have been several bills to ban the face veil
in public, but none of these bills has yet been turned into legislation. See for a description of the
debate and legislative developments, Overbeeke and van Ooijen 2014.
168 Keep the faith: the CJEU as a co-guardian of religious freedom
holds true for new forms of conscientious objection, such as the refusal to
shake hands, as a manifestation of the faith-based desire to avoid physical
contact with the ‘other sex’. In any event, the debate has mostly centred
on the ripples which new religious manifestations cause in the fabric of
Dutch society in the context of employment, schools and other contexts of
social interaction. This contribution shifts the focus to a stage prior to the
settlement of migrants in society: the immigration stage.
When an immigrant enters the Netherlands to seek asylum, his religion
or belief can be germane to his asylum application. After all, in some
(unfortunately, still too many) countries, religion or belief can be a ground
of persecution or severe discrimination. Accordingly, a person can run the
risk of being subjected to ill-treatment or even torture when he is returned
to his country of origin. The challenge in the asylum procedure is the proper
assessment of this risk. Because asylum matters fall within the sphere of EU
competence, several EU instruments regulate minimum standards in the
asylum procedure, such as the Qualification Directive (2004/83/EC) and
the Asylum Procedures Directive (2005/85/EC).
On 5 September 2012, the Court of Justice of the European Union (‘CJEU’)
issued a ruling5 in which it provided clarification on the Qualification
Directive. The judgment was generally regarded as a hallmark for the
recognition of religious freedom by the CJEU in the field of migration.
There are three remarkable elements of the ruling which are also recurrent
in Professor Loenen’s research : i) the increasing importance of the CJEU
for human rights in Europe, ii) the role of the state in assessing religion or
belief, and iii) the relation of religious freedom with other human rights. In
this note, the ruling and its (possible) implications are discussed in two parts.
The first part describes the judgment, the second part offers some reflections
on the possible implications of the judgement.
More specifically, in the first section, a summary of the ruling and the
essential considerations of the CJEU are presented. Subsequently, the
increasing importance of the CJEU for human rights in Europe is addressed,
with reference to key considerations of the ECtHR on religious freedom.
In the fourth section, the role of the state is discussed. The CJEU illustrates
how the attitude of the state towards religion in the asylum procedure
differs from the approach usually taken by the state to qualify a violation of
religious freedom. Finally, this contribution touches on how the judgement
underscores the relation between religious freedom and other human rights.
2. The judgment
The CJEU handed down the judgment at the request of the German Federal
Administrative Court (Bundesverwaltungsgericht, the ‘German Court’). The
case which the German Court referred for a preliminary ruling concerned
a dispute between the German immigration authorities (Bundesamt für
Migration und Flüchtlinge) and two Pakistani nationals who had applied
for refugee status in Germany. These nationals were active members of
the Ahmadiyya community. This Islamic reformist movement meets with
fierce opposition from the Sunni Muslim majority in Pakistan. The religious
activities of the community, including conversion activities, are severely
restricted by the Pakistan Penal Code. As a consequence, Ahmadiyya may
not profess their faith publicly without those practices being liable to be
considered blasphemous, a charge which is punishable, according to the
provisions of that code, to a sentence of imprisonment or even the death
penalty.6
The CJEU was asked for a clarification of the Qualification Directive
(‘Directive’) which, simply stated, contains provisions on qualifying persons
as refugees.7 More specifically, the reference addressed Articles 2(c) and
9(1)(a) of the Directive8 which concern the definition of a refugee and of
6 Cf. Opinion of the Advocate General, delivered on 19 April 2012, in Cases C‑71/11 and C‑99/11,
Bundesrepublik Deutschland v. Y and Z, [2012], at para. 2.
7 Article 1 states: ‘The purpose of this Directive is to lay down minimum standards for the
qualification of third country nationals or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection granted’.
8 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or Stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted (OJ L 304 p. 12); addendum
(OJ 2005 L 204 p. 24).
170 Keep the faith: the CJEU as a co-guardian of religious freedom
The CJEU found it appropriate to deal with the first two questions together
and summarised the questions as follows:
9 It was remarkable because this line of reasoning uses an analogous reasoning: after all, the right
to religious freedom is not one of the non-derogable rights mentioned in Article 15(2) ECHR.
Instead, the CJEU stated that ‘interference with religious freedom may be so serious as to be treated
in the same way as the cases referred to in Article 15(2) of the ECHR, to which Article 9(1) of the
Directive refers, by way of guidance, for the purpose of determining which acts must in particular
be regarded as constituting persecution.’ (emphasis added), Cases C‑71/11 and C‑99/11,
Bundesrepublik Deutschland v. Y and Z, [2012], at para. 57.
Hana van Ooijen 171
clauses cannot qualify as persecution, and nor can acts which are simply
not sufficiently serious. Following this proviso, the CJEU made another
remarkable observation by stating that the distinction between the so-called
forum internum and forum externum of religious freedom10 is not pertinent
to qualifying interferences with religious freedom as acts of persecution.11
Limitations on religious manifestations can also be considered as acts of
persecution, at least when such limitations are sufficiently serious.
The third question basically pertains to the extent to which a person can be
asked to observe self-restraint in practising his religion:
10 It is discussed infra, but here is a quick explanation of these concepts: the former concerns the
absolute freedom of thought, the latter pertains to the freedom to act on his religion or belief.
11 Cf. Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 62. The
CJEU refers to the forum internum as the ‘core areas’.
12 Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 45.
172 Keep the faith: the CJEU as a co-guardian of religious freedom
a religion in order to remove the risk of persecution. The Court was crystal
clear on this point:
‘79. [...] The fact that he could avoid that risk by abstaining from certain
religious practices is, in principle, irrelevant.
80. [...] In assessing an application for refugee status on an individual
basis, those authorities cannot reasonably expect the applicant to abstain
from those religious practices.’
In sum, the ruling of the CJEU has established that interferences with
religious freedom can amount to acts of persecution. Furthermore, states
cannot require applicants to refrain from religious practices in order to
minimise their risk of persecution. The purport of this judgment cannot
easily be overrated. It is significant that the CJEU has pronounced on
religious freedom in this context, since it is not traditionally the human rights
guardian in the European area. The next section addresses the increasing role
of the Court in the human rights area.
14 Including the Employment Equality Directive (2000/78/EC), the Racial Equality Directive
(2000/42/EC), and the Gender Equality Directives (2014/13/EC and 2006/64/EC).
15 Cf. Speekenbrink 2012.
16 The increasing influence of the CJEU on human rights in Europe also figures in the research of
Professor Loenen, cf. Loenen 2012, at p. 303ff. Further, the topic is central to her work as a
professor at the University of Leiden, cf. her inaugural lecture Loenen 2013.
17 A comprehensive question which has already been addressed in quite a number of publications,
e.g. the dissertation by Spreekenbrink, Speekenbrink 2012. See also the edition of Utrecht Law
Review, Loenen, van Rossum, and Tigchelaar 2010.
18 E.g. Martinico and Policino 2012 and Busby and Zahn 2014.
19 Such alignment between the two courts does not always occur, see Burri 2013.
20 This is the open term employed in Article 78(1) TFEU: ‘The Union shall develop a common policy
on asylum [etc.], [which] must be in accordance with the Geneva Convention of 28 July 1951 and
the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.’
21 See Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 48: ‘The
Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and
in a manner consistent with the Geneva Convention and the other relevant treaties referred to in
Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the Directive must also
be interpreted in a manner consistent with the rights recognised by the Charter.’
174 Keep the faith: the CJEU as a co-guardian of religious freedom
This sentence is often the prelude to the more extensive and high-minded
observations of the ECtHR in Article 9 cases:
22 See Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 56:
‘The right to religious freedom enshrined in Article 10(1) of the Charter corresponds to the right
guaranteed by Article 9 of the ECHR.’
23 See e.g. the judgment in ECtHR, Eweida and others v. United Kingdom, 15 January 2013 (Appl.
nos. 48420/10, 59842/10, 51671/10 and 36516/10), at para. 79. This formula goes back to the
first significant judgment of the ECtHR on Article 9: ECtHR, Kokkinakis v. Greece, 25 May 1993
(Appl.no. 14307/88).
24 E.g. The case of ECtHR, Leyla Sahin v. Turkey [GC], 10 November 2005 (Appl.no. 44774/98), at
para. 105.
Hana van Ooijen 175
Evidently, the ECtHR issues its judgments regarding the question whether
measures of Contracting States impinge on religious freedom without
grounds of justification. In contrast, the CJEU judgment should be seen in
the context of the prohibition of non-refoulement and the risk of persecution.
The CJEU also observes that the protection of religious freedom is limited:
‘58. However, that cannot be taken to mean that any interference with
the right to religious freedom guaranteed by Article 10(1) of the Charter
constitutes an act of persecution [...].’
It is at this point that the approach of the CJEU clearly starts to differ from
the one of the ECtHR. The phrase of the ECtHR reflects the dichotomy
which operates for the conceptualisation of religious freedom: the forum
internum and the forum externum. Whereas the former concerns the absolute
freedom of thought, the latter pertains to the freedom to act according to
one’s religion or belief.25 It is according to this dichotomy that religious
freedom and its limitations are assessed. In the judgment of the CJEU,
however, religious freedom is looked at from the perspective of it being the
ground for persecution. Indeed, it can be seen that the CJEU deems the
common dichotomy to be irrelevant:26
27 See Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 65,
deriving from Opinion of the Advocate General, delivered on 19 April 2012, in Cases C-71/11
and C‑99/11, Bundesrepublik Deutschland v. Y and Z, [2012], at para. 52.
28 It also brings to mind the struggle of the UK government with Ms. Eweida who insisted that
wearing a cross was part of her religion, while this is not necessarily recognised by the majority as a
necessary religious manifestation. ECtHR, Eweida and others v. United Kingdom, 15 January 2013
(Appl.nos. 48420/10, 59842/10, 51671/10 and 36516/10).
Hana van Ooijen 177
factors. What does not explicitly transpire from the judgment is that the
assessment necessarily entails an evaluation of the asylum account. After
all, findings regarding a person’s religion or belief and the ensuing risk of
persecution need to be based, at least to a certain extent, on the facts. In the
Dutch asylum procedure, the establishment of the facts is entwined with the
(assessed) credibility of an asylum account. In cases of conversion, a clear line
of case law can be discerned as to how the immigration authorities carry out
a standard assessment. The Dutch Raad van State (‘Council of State’) has
summarised this assessment.29 In the asylum procedure, the state confronts
an applicant with three types of questions, namely those regarding i) the
motives for and the process of conversion, ii) the general basic knowledge
of the religion and religious practice, and iii) the practical observance of
the applicant. The threshold for making one’s religion and belief credible is
quite high.30 The applicant should be able to ‘provide insight into why he has
come to a more intense experience of his conversion and how this process
has happened and that this choice is well-considered and intentional’.
This approach in the migration area to establishing someone’s religion or
belief is intriguing when compared to the general human rights approach to
religious freedom. Stated simply, assessing a religion or belief too thoroughly
possibly conflicts with the restraint which the state needs to observe: a state
should shy away from making theological assessments. An important tenet
of religious freedom is that the state is not called upon to determine what
qualifies as a religion and what does not. In the same vein, the state really
should not have too much of a stance on an individual’s experience of a
religion or belief. The ECtHR has phrased it succinctly:
6. Final remarks
In her inaugural lecture, Professor Loenen noted the appearance of the
ECJ as a relatively new player in the area of human rights. As she rightly
observed, the EU has extended its working field to encompass social and
more ideological activities than economic cooperation.35 The judgment
discussed in this contribution demonstrates how it no longer suffices to
qualify the Strasbourg Court as the sole human rights actor on European
territory. The developments within the EU are indeed significant for the
cause of human rights as a whole. Furthermore, the judgment underscores
the importance of the mentioned aspects of Loenen’s research and at the
same time conjures up new questions on these issues. With such richness to
explore, we can certainly have faith in Professor Loenen conducting more
interesting research in this area.
33 Previously, the Dutch Council of State did consider that the State could require an applicant to
observe restraint in manifesting his religion on return.
34 As elaborated above, this preliminary finding can even leave the question of persecution outside the
assessment. Recent case law shows that the threshold for an applicant to have the facts established
as credible to be unabatedly high.
35 Loenen 2013, at p. 4.
180 Keep the faith: the CJEU as a co-guardian of religious freedom
BIBLIOGRAPHY
Ineke Boerefijn
1. Introduction
All human rights treaties contain an obligation to guarantee human rights
without distinction. That sounds all too obvious, but practice shows
shortcomings for various people. The general human rights treaties, such
as the International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights
(ICESCR), have been complemented by treaties focusing on a specific issue,
such as discrimination on the ground of race and sex and on the human
rights of children and persons with disabilities. These play a valuable role
in identifying the areas where equal and full enjoyment of all human rights
warrants specific attention and the measures that States parties must take to
ensure equal and full enjoyment.
Under the general human rights treaties, not much attention was paid to
women’s human rights. The Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW) complements the ICCPR and
the ICESCR in various areas and makes concrete what States parties should
do to eliminate discrimination against women in the enjoyment of human
rights. It does not, however, contain a provision that protects women’s
equal right to be free from inhuman treatment.1 Violence against women
was for a long time not addressed in terms of human rights, neither when
it concerned violence in the public sphere (for example, sexual violence in
wartime), nor when it occurred in the private sphere. As a result of active
campaigning by women’s rights experts and activists, the scale and gravity
of various forms of violence against women was addressed at the World
Conference on Human Rights. Since then, it has been high on the agenda
1 For the reasons for this, see van den Brink 1993.
182 Violence against women
of violence against women exists. Titia Loenen, Cees Flinterman and I were
involved in Fleur van Leeuwen’s dissertation which examines how the Human
Rights Committee and the Committee on Economic, Social and Cultural
Rights have applied a gender perspective in their work.6 This contribution
is a modest complement to that study, because it looks at the CEDAW
Committee’s case law with regard to the human rights which are relevant to
the issue of violence against women. In other words: what does the CEDAW
Committee’s case law contribute to a gender-sensitive interpretation of the
right to be free from ill-treatment, the right to a fair trial and other human
rights? At first sight, article 2 of the Optional Protocol to CEDAW could
be seen as an obstacle to the CEDAW Committee’s mandate to deal with
these rights. Article 2 provides that communications may be submitted by
individuals or groups of individuals ‘claiming to be victims of a violation of
any of the rights set forth in the Convention’. This seems quite restrictive, as
many of the rights concerned are not as such ‘set forth in the Convention’.
It would appear, however, that the CEDAW Committee was inspired by the
preamble to the Optional Protocol to CEDAW. This reaffirms States parties’
‘determination to ensure the full and equal enjoyment by women of all human
rights and fundamental freedoms’. How has the CEDAW Committee’s case
law on violence against women contributed to guaranteeing the full and
equal enjoyment of all human rights? On the basis of a number of landmark
views it will be discussed how the CEDAW Committee contributes to the
practical realisation of that wonderful slogan ‘women’s rights are human
rights’,7 which was the basis for Van Leeuwen’s study.
This contribution first makes some general remarks about developments in
international human rights law as regards the full and equal enjoyment of
all human rights by all persons. Subsequently, it examines the views of the
CEDAW Committee to identify the human rights issues that have been
addressed.
8 CEDAW Committee, ‘Violence against women, General Recommendation No. 19’ (1992), in
Compilation of general comments and general recommendations adopted by human rights treaty bodies,
UN Doc. HRI/GEN/1/Rev.9, Vol. II, 331-336.
186 Violence against women
this general recommendation in 1992 has been called the ‘missing link’ in
understanding violence against women as a human rights issue.9 It constitutes
the basis of the CEDAW Committee’s subsequent work on the issue.10 In the
past two decades since its adoption, the issue of violence against women
has consistently had a prominent place in the work of the Committee,
in the reporting procedure and in its work under the Optional Protocol.
The general recommendation refers to human rights that are included in
CEDAW, such as equality in the family, and to human rights laid down in
other human rights instruments, such as the right to life and the right to
be free from torture and inhuman treatment. With a reference to human
rights not being included in CEDAW, the CEDAW Committee underlined
its status as a human rights body. The indivisibility of all human rights
and the need for a coherent interpretation of human rights instruments
warrants such an approach. The 1993 World Conference on Human Rights
acknowledged this by underlining that women’s rights are human rights. The
Vienna Declaration called on all human rights treaty bodies to integrate a
gender perspective in their work.11 According to the CEDAW Committee,
‘[t]he Convention is part of a comprehensive international human rights
legal framework directed at ensuring the enjoyment by all of all human
rights and at eliminating all forms of discrimination against women on the
basis of sex and gender.’12
States parties have an obligation to take appropriate and effective measures
to overcome all forms of gender-based violence, whether by public or private
acts.13 In its concluding observations, the CEDAW Committee has further
specified what these measures should entail. Recommendations concern
violence against women by state actors, violence in the public sphere, and
domestic violence. Measures that States should take include legislative
14 Boerefijn 2009.
15 CEDAW Committee, 26 January 2005, A.T. t. Hungary, Comm. No. 2/2003, in UN Doc.
A/60/38 (Part I), Annex III, at para. 9.3.
188 Violence against women
16 CEDAW Committee, 26 January 2005, A.T. t. Hungary, Comm. No. 2/2003, in UN Doc.
A/60/38 (Part I), Annex III, at para. 9.3.
17 CEDAW Committee, 26 January 2005, A.T. t. Hungary, Comm. No. 2/2003, in UN Doc.
A/60/38 (Part I), Annex III, at paras. 9.2-9.6.
Ineke Boerefijn 189
violence, and in the absence of shelters that could accommodate her, finding
that her partner’s right to privacy could be restricted can well be argued.
Restrictions on the right to respect for privacy require a legal basis, and some
considerations on that aspect make this jurisprudence more easily acceptable
and applicable by other human rights treaty bodies.
In Vertido v. The Philippines, the CEDAW Committee acknowledged that
the text of the Convention does not expressly provide for a right to a remedy.
However, it considered that such a right is implied in the Convention. It
derived this from article 2 (c), which requires States parties ‘to establish legal
protection of the rights of women on an equal basis with men and to ensure
through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination’. According
to the CEDAW Committee, ‘for a remedy to be effective, adjudication
of a case involving rape and sexual offences claims should be dealt with
in a fair, impartial, timely and expeditious manner.’18 This appears to be
somewhat different from the Human Rights Committee’s case law on the
issue. It would have been interesting to have some further explanation for
the basis for the CEDAW Committee’s interpretation. According to the
Human Rights Committee, article 2, paragraph 3 ICCPR requires States
parties to make reparation to individuals in case of a violation of their rights.
The Committee notes that, where appropriate, reparation ‘can involve
(…) bringing to justice the perpetrators of human rights violations’. The
CEDAW Committee’s addition that this should be fair, impartial, timely
and expeditious is a desirable interpretation of the right to an effective
remedy. Additionally, this case is of interest because the CEDAW Committee
considered the impact of stereotyping on women’s right to a fair trial in
a concrete case. It underlined that the judiciary must ‘take caution not to
create inflexible standards of what women or girls should be or what they
should have done when confronted with a situation of rape based merely on
preconceived notions of what defines a rape victim or a victim of gender-
18 CEDAW Committee, 16 July 2010, Comm. No. 18/2008, Karen Tayag Vertido v. The Philippines,
UN Doc. CEDAW/C/46/D/18/2008, at para. 8.3.
190 Violence against women
19 CEDAW Committee, 16 July 2010, Comm. No. 18/2008, Karen Tayag Vertido v. The Philippines,
UN Doc. CEDAW/C/46/D/18/2008, at para. 8.4.
20 CEDAW Committee, 16 July 2010, Comm. No. 18/2008, Karen Tayag Vertido v. The Philippines,
UN Doc. CEDAW/C/46/D/18/2008, at paras. 8.4-8.7.
21 CEDAW Committee, 21 February 2014, Comm. No. 34/2011, R.P.B. v. The Philippines, UN
Doc. CEDAW/C/57/D/34/2011, at para. 8.3.
Ineke Boerefijn 191
by the trial court and the lengthy correspondence with the resource centre
providing interpretation. With respect to the assistance of an interpreter,
the CEDAW Committee referred to case law from the Human Rights
Committee concerning article 14(3)(f ) ICCPR. This provision guarantees
the rights of accused persons to an interpreter if they do not understand the
court language, and which is, under certain circumstances, also relevant to
the right of witnesses to an interpreter. The precise reasoning of the Human
Rights Committee is not included in the CEDAW Committee’s views.
According to the Human Rights Committee, ‘(…) if the accused or the
witnesses have difficulties in understanding, or in expressing themselves in
the court language, is it obligatory that the services of an interpreter be made
available.’22 The CEDAW Committee’s explicit attention for the position
of the victim of sexual violence, a deaf and mute woman, is a valuable
contribution to this interpretation. Especially since there are not many
cases on the right of the assistance of an interpreter for witnesses in criminal
trials, this aspect deserved more attention to highlight it and make it more
easily accessible. It concluded that the author of the communication could
not adequately benefit from sign language, even though this was ‘essential
to ensure the author’s full and equal participation in the proceedings, in
compliance with the principle of equality of arms and hence to guarantee
her the enjoyment of the effective protection against discrimination within
the meaning of article 2 (c) and (d) of the Convention, read in conjunction
with the Committee’s general recommendation No. 19.’23
In S.V.P. v. Bulgaria, the CEDAW Committee concluded that the way in
which the rape of a minor girl (7 years old at the time of the crime) was
dealt with was inadequate. Even though the girl had been raped, the case
was prosecuted as an act of molestation, a less serious offence than rape
and subject to a lighter penalty. The perpetrator received only a suspended
sentence. According to the CEDAW Committee, Bulgaria had failed to
take measures under article 2 (b) CEDAW ‘to adopt adequate criminal law
22 Human Rights Committee, Hervé Barzhig v. France, Comm. No. 327/1988, 11 April 1991, UN
Doc. CCPR/C/41/D/327/1988, at para. 5.5.
23 CEDAW Committee, 21 February 2014, Comm. No. 34/2011, R.P.B. v. The Philippines, UN
Doc. CEDAW/C/57/D/34/2011, at para. 8.7.
192 Violence against women
provisions to effectively punish rape and sexual violence and apply them in
practice through effective investigation and prosecution of the perpetrator.’24
It also concluded that Bulgaria had failed to provide for legislative measures
that could support and protect the victim of such violence in violation of
article 2, paragraphs (a), (f ) and (g) CEDAW. Further, there was no protection
against the consequences of the sexual violence and no compensation or
rehabilitation was offered. The Committee observed that discriminatory
legislation continued to exist. In its views, the CEDAW Committee referred
to its concluding observations adopted following the consideration of
Bulgaria’s periodic report. It expressed its concern about legal provisions
that enable the termination of criminal proceedings against rapists when the
rapist marries the victim.25 Such legislation pressures women into marriage.
The CEDAW Committee reaffirmed that such laws reflect harmful gender
stereotypes.26 The absence of any mechanisms for the protection of victims
of sexual violence from revictimization was found to be in violation of the
rights under article 2, paragraphs (a), (b), (e), (f ) and (g); read together
with articles 3 and 5, paragraph 1 CEDAW. In this case, some noteworthy
references are made. The CEDAW Committee refers to the European Court
of Human Rights’ judgement in M.C. v. Bulgaria,27 and to the Council of
Europe Convention on preventing and combating violence against women
and domestic violence (Istanbul Convention).
The case of Goekce v. Austria was in some respects different, because the
problem was mainly found in the inadequate response of the police
rather than in existing laws and the application thereof by the courts. The
communication concerned the killing of a woman by her husband. The
CEDAW Committee praised this State party for the measures it had already
put in place. It acknowledged the existence of a comprehensive model to
address domestic violence that includes legislation, criminal and civil-law
24 CEDAW Committee, 12 October 2012, Comm. No. 31/2011, S.V.P. v. Bulgaria, UN Doc.
CEDAW/C/53/D/31/2011, at para. 9.5.
25 CEDAW Committee, 27 July 2012, Concluding observations Bulgaria, UN Doc.
CEDAW/C/BGR/CO/4-7, at paras. 23-24.
26 CEDAW Committee, 12 October 2012, Comm. No. 31/2011, S.V.P. v. Bulgaria, UN Doc.
CEDAW/C/53/D/31/2011, at para. 9.6.
27 ECtHR, M.C. v. Bulgaria, 4 December 2003 (Appl.no. 39272/98).
Ineke Boerefijn 193
28 CEDAW Committee, 6 August 2007, Comm. No. 5/2005, Sahide Goekce v. Austria, UN Doc.
CEDAW/C/39/D/5/2005, at paras. 12.1-12.2.
194 Violence against women
29 CEDAW Committee, 16 July 2010, Comm. No. 18/2008, Karen Tayag Vertido v. The Philippines,
UN Doc. CEDAW/C/46/D/18/2008, at para. 8.2.
Ineke Boerefijn 195
5. Concluding remarks
The views adopted by the CEDAW Committee confirm the added value
of the individual complaints procedure as such as well as of the expertise
this particular Committee has to offer. In its work under the reporting
procedure, the CEDAW Committee has developed a comprehensive
approach to violence against women. Under the Optional Protocol it has
had before it individual situations in which the CEDAW Committee was
asked to consider if and to what extent States parties had complied with their
obligations under CEDAW. In each case, the CEDAW Committee identified
which rights were violated, which is a significant step in advancing women’s
human rights. Interpreting article 2 (c) as including the right to an effective
remedy is an important conclusion. This provision has turned out to be
an effective tool for evaluating the judicial proceedings in which violence
against women has been addressed in an individual case. With due attention
for the interpretation of human rights provisions by other United Nations
human rights bodies, the CEDAW Committee has shown what the concept
of the adequate and effective protection of women’s right to be free from
violence implies. It is clear that the CEDAW Committee makes a valuable
contribution, but in some cases it was found that a further elaboration of
its findings would be appropriate. The CEDAW Committee has in each of
the cases identified the factors that contributed to inadequate or ineffective
protection of women’s human rights. Its attention for the underlying causes
or shortcomings in protection and the effects thereof for individual women
are of great value. It shows how structural causes have an impact on the rights
of individual women. The recommendations formulated by the CEDAW
Committee address not only the situation of the individual woman who
submitted the communication but also concern general measures, which
contribute to overcoming more structural problems. Combined with the
concluding observations and general recommendations, the CEDAW
Committee makes a major contribution to a better understanding of the
concept of women’s full and equal enjoyment of all human rights. Clearly,
the problem of violence against women has many dimensions, so does the
solution.
196 Violence against women
BIBLIOGRAPHY
Boerefijn, I., ‘Establishing State responsibility for breaching human rights treaty
obligations: avenues under UN human rights treaties’, Netherlands International
Law Review, Vol. 56, No. 2, 2009, pp. 167-205.
van den Brink, M., Aan den lijve, over het Vrouwenverdrag en lichamelijke integriteit,
Utrecht papers on economic, social and international law no. 16, Universiteit
Utrecht, Utrecht, 1993.
Chinkin, C., ‘Violence against Women’, in: Freeman, M.A., Chinkin, C. and
Rudolf, B. (eds.), The UN Convention on the Elimination of All Forms of
Discrimination Against Women, A Commentary, Oxford University Press, Oxford,
2012, pp. 443-474.
van Leeuwen, F.C., Women’s Rights are Human Rights, The Practice of the Human
Rights Committee and the Committee on Economic, Social and Cultural Rights,
Intersentia, Antwerp, 2009.
Shin, H., ‘CEDAW and violence against women: providing the “missing link”’, in:
Schöpp-Schilling, H.B. and Flinterman, C. (eds.), The circle of empowerment:
twenty-five years of the UN Committee on the Elimination of Discrimination Against
Women, Feminist Press, New York, 2007, pp. 223-233.
Milestone or stillbirth?
An analysis of the first judgment of the European
Court of Human Rights on home birth
1. Introduction
In 2010 the European Court of Human Rights (henceforth: the Court
or ECtHR) ruled that Hungary had violated Article 8 of the European
Convention on Human Rights (ECHR) because it had interfered with Ms
Ternovszky’s right to choose where to give birth. Ms Ternovszky had wanted
to give birth at home but argued that she was prevented from doing so because
a government decree dissuaded health care professionals from assisting home
births. The Court ruled that the matter of health professionals assisting home
births was surrounded by legal uncertainty prone to arbitrariness and that
this was incompatible with the notion of ‘foreseeability’ and hence with that
of ‘lawfulness’.2 The judgment of the Court in Ternovszky versus Hungary
is the first binding decision by an international human rights monitoring
body on the right to choose the circumstances of giving birth. For this reason
alone it is noteworthy to take a closer look at it. But what makes scrutiny also
interesting is that the decision – which was heralded by home birth advocates
around Europe – has started to be used for legal actions and negotiations on
a domestic level. This is remarkable because the Court did not explicitly
recognise a right to home birth in its decision.
In this commentary I take a closer look at the Ternovszky decision and ask
whether it provides any clarity in terms of the entitlements of individuals or
obligations for the state party in question as far as home birth is concerned.
To that end, I scrutinise its line of reasoning and its outcome. Moreover
1 I would like to thank Marjolein van den Brink, Sam Dubberley, Susanne Burri, and Jenny
Goldschmidt for their comments on earlier versions of this article.
2 ECtHR, Ternovsky v. Hungary, 14 December 2010 (Appl.no. 67545/09).
198 Milestone or stillbirth? An analysis of the first judgment of the European Court of Human
Rights on home birth
– since it is a case that deals with a highly gender-specific issue – I probe the
gender sensitivity of the Court in addressing the matter of childbirth. My
overall interest is to find out if the judgment provides home birth proponents
with any ammunition in their fight for the legal recognition of a human
right to home birth and if it gives any guidance as to (negative and positive)
obligations on the part of states in this respect. In the following section
I provide some background information to the home birth/hospital birth
debate, after which I briefly summarise and then analyse the case. I end with
some concluding remarks on this and future home birth cases.
death than a planned hospital delivery.11 Although the research was heavily
criticised both for reasons of methodology and its findings,12 the American
College of Obstetrics and Gynaecology states in its Committee Opinion
on planned home birth that it respects the right of a woman to make a
medically informed decision about delivery, but finds that they should be
informed that although the absolute risk may be low, planned home birth is
associated with a twofold to threefold increased risk of neonatal death when
compared with planned hospital birth.13
the purposes of this provision and it noted that the choice of giving birth in
one’s home would normally entail the involvement of health professionals.
Legislation which arguably dissuaded health professionals from providing
the requisite assistance therefore constituted an interference with the right to
respect for private life.16 The question then was whether this interference was
in accordance with the law. The Court considered that where choices related
to the exercise of a right to respect for private life occur in a legally regulated
area, the state should provide adequate legal protection to that right in
the regulatory scheme, notably by ensuring that the law is accessible and
foreseeable. In the context of home birth it noted that this implied that the
pregnant woman was entitled to a legal and institutional environment that
enabled her choice, except where other rights render necessary the restriction
thereof.17 The Court observed that the matter of health professionals assisting
home births was surrounded by legal uncertainty prone to arbitrariness. The
interference with Ms Ternovszky’s private life was therefore not in accordance
with the law as the laws in question were not compatible with the notion of
‘foreseeability’. The Court ruled that Hungary had committed a violation.
In their joint concurring opinion, Judges Sajo and Tulkens held that the
state has to provide the adequate legal security needed for the exercise of a
freedom, but that this could not be equated with liberalising home births as
such. The latter, they noted, was ‘obviously a matter of balancing in view of
available (currently disputed) medical knowledge, the health of the mother
and the child, the structure of health care services, etc. This is a matter where
the State has a broad margin of appreciation (…)’.18
each other, with the accompanying understanding that the primary threat to
foetal health comes from pregnant women.19 The rights of women to self-
determination and autonomy are in that context easily overridden for the
‘best interests of the child’. Illustrative are the many countries that restrict
the possibility to give birth at home de jure and/or de facto in order to
protect the life and health of the unborn child.20 In the case of Ternovszky
one could have expected the Court to take the easy (and arguably more
correct) way out and look at the procedural requirements with regard to
the right to private life and whether these had been met. After all, this is
what it generally does in cases of similar controversy: cases concerning a
lack of access to abortion in which the right of the pregnant woman is de
facto restricted for reasons of the protection of the unborn, but is de jure
available. In most of the Court’s cases on abortion the applicant did in fact
have a right to have an abortion under national law, but was for a variety of
reasons unable to enjoy her legal right. In those cases the ECtHR decided
that it was more fruitful to look at the procedural aspects of Article 8 and
whether these were met rather than examining whether the interference in
the applicant’s enjoyment of her right was justified.21 The Court thus did
not have to make any statements about the existence of a right as such, like
a right to abortion, and the accompanying understanding that a state should
recognise this right. Instead it could suffice by examining the compatibility
of the de facto situation with the already existing de jure one. Judging this
matter is a lot less sensitive. In this respect the Court has previously held,
for example, that if the legislature decides to allow abortion, it must not
structure its legal framework in a way that would limit real possibilities to
obtain it.22
The Ternovsky case closely resembles these abortion cases – not only does it
also concern a case in which the rights of the mother are weighed against the
protection of the unborn (Hungary itself submitted that there is professional
consensus in Hungary to the effect that home birth is less safe – thereby it
seems to imply less safe for the unborn child),23 but the applicant also had
a right under national law to give birth at home – that is to say she was not
prohibited from doing so – and she could not enjoy this right because of
obstructing practices by the authorities (which were prosecuting midwives).
Following its line of reasoning in the aforementioned abortion cases, the
ECtHR could thus have argued that Hungary had breached its positive
obligations under Article 8 by deterring health professionals from assisting
home births and by offering no alternative means to ensure that the woman
in question could give birth at home (it was not contested by Hungary that
this particular woman could give birth at home, i.e., there was, for example,
no medical reason necessitating a hospital birth). But, as previously stated,
this was not the approach that the ECtHR opted for. Instead it examined
whether the constituted interference was justified – a negative obligations
approach.
of the inherent risks’).24 This is the question that remains unanswered in the
Ternovsky case.
26 See for example Rich 1976, at pp. 152-162. This is just one of many examples that Rich provides
as to how patriarchy (and accompanying gender stereotypes) affects childbirth.
27 See for example Leavitt 1983; Beckett 2005, at p. 253; and Beckett and Hoffman 2005, at
p. 138. They argue that organised medicine’s opposition to midwifery is best understood as one
component of a larger effort to protect and restore the professional and cultural hegemony it
enjoyed for much of the twentieth century.
28 See for example Goer 1995.
29 Beckett 2005, at p. 265.
30 Beckett 2005, at p. 266.
31 See Cook and Cusack 2010, at pp. 173-180; Timmer 2011.
Fleur van Leeuwen 207
risks than giving birth in hospital’.37 Again the question is: for whom are
the risks higher? Is the Court implying that women’s right to choose the
circumstances of giving birth can be interfered with when medical research
points to higher risks for the unborn? If the Court is indeed referring to
the protection of the unborn, would the results of such research make a
general prohibition on home birth proportional? Besides the fact that the
Court does not seem to question the reliability of these medical data and
that it makes no mention of the alternative body of knowledge on childbirth
available from midwives, the statement of the Court – if indeed it refers to
the safety of the unborn – does seem an awful lot like a reflection of the
‘good mother’ idea. It is not clear why the Court made this remark as it had
no bearing on its final decision.
Secondly, although no harmful gender stereotypes were exposed by the Court
in the proceedings on Article 8, they could have surfaced in an examination
of the Article 14 complaint of the applicant. This is another reason why it
is to be regretted that the Court decided not to examine this part of the
application. Laws (or practices) that deny women self-determination over
their bodies – especially when it concerns reproductive issues: issues closely
entwined with morals regarding women’s virtue and sexuality – should be
treated as suspect. Although I do sympathise with, for example, reasons of
time management (I am aware of the enormous number of pending cases
before the Court) that may be offered as an explanation for not examining all
alleged violations in an application – I do feel that in cases such as these, the
Court should not that easily bypass a complaint of gender discrimination.
After all, only when we address the root of the problem can we ensure the
elimination of certain practices (like prosecuting midwives in order to
prevent home births).
4. Concluding remarks
In this commentary I set out to examine whether the Ternovsky judgment
of the ECtHR offers any clarity with regard to a human right to home birth
and, if so, whether any indications are given by the Court regarding human
rights obligations for states in that respect. Although home birth advocates
heralded the judgment, one must conclude after close scrutiny that the
Court did not make any ground-breaking statements – or for that matter
any statements specifically in favour of home birth proponents. With regard
to individual rights, the Court did recognise that there should be room for
choice in birthing circumstances, but it did not address the question whether
this choice should include the possibility to give birth at home. Although
home birth advocates might argue that the Court implicitly recognised such
a right (it has been held that the choice referred to in this judgment is a
choice between a hospital birth or a home birth), home birth opponents
can just as well argue that the decision allows states to prohibit home birth
if they have the medical data to support this. The truth of the matter is
the following: it is still unclear whether states can prohibit home birth and
under which conditions. It is therefore also still not possible to decipher
any obligations for states with regard to a right to home birth. What can be
deduced from the judgement is that states need to regulate the circumstances
under which women can give birth: i.e. a pregnant woman has a right to
know where she can legally give birth. Hence, the Ternovsky case offers a
decent first – not a milestone – but arguably one on which the Court can
build in its future judgments.38 And when it does so it is to be hoped that it
does not stop its reasoning at the point of the question of legality and that
it takes into account the possibility of gender discrimination as a root cause
for denying the woman in question the possibility to give birth at home. I
hope that the Court will demonstrate sufficient courage to address the tricky
matter of home birth head-on. I for one would be very interested to see what
the outcome of the case would then be.
38 At the time of writing three cases on home birth were still pending: Dubska v. the Czech Republic
(Appl.no. 28859/11), Krejzova v. the Czech Republic (Appl.no. 28473/12), Kosaite - Cypiene and
others v. Lithuania (Appl.no. 69489/12).
210 Milestone or stillbirth? An analysis of the first judgment of the European Court of Human
Rights on home birth
BIBLIOGRAPHY
Merel Jonker
1. Introduction
Suppose a black man of Ghanaian descent applies for a job at a Dutch home-
care organization and, to his disappointment, is refused the position. After
inquiring, he learns that the main reason for this lies in the fact that he is
male since, in the experience of the organization, clients regularly refuse to
be helped by male nurses. Furthermore, his being black would supposedly
increase the possibility that he would not be accepted by clients.1 This may
be considered a typical example of multiple discrimination; the man in
question is discriminated against on both accounts.
Legal scholars dealing with such cases distinguish two forms of multiple
discrimination. In case of additive discrimination, discrimination grounds
‘add to each other’ and may therefore be distinguished from one another.2
In contrast, intersectional discrimination, a concept introduced by the legal
scholar Kimberly Crenshaw in 1989, refers to the situation in which the
discrimination grounds ‘intersect with each other’ and therefore cannot
be disentangled, resulting in a specific form of discrimination.3 Crenshaw
emphasised the problematic consequences of the dominant single-ground
approach in American anti-discrimination law, denying protection against
work-life discrimination for black women, who were being discriminated
against not as women, not as blacks, but as black women. Cases of additive
discrimination may be dealt with on just one of the grounds. However, for
the people involved, who are convinced that they were discriminated on
1 This case came before the Netherlands Institute for Human Rights (College voor de Rechten van de
Mens) in 2012 (Oordeelnummer 2012-122, 17 July 2012).
2 Makkonen 2002; Burri and Schiek 2009, at p. 3.
3 Crenshaw 1989.
212 Comparators in multiple discrimination cases: a real problem or just a theory?
4 Council Directive (EC) 2000/43 of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin (OJ L 180 p. 22), Council Directive
(EC) 2000/78 of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation (OJ L 303 p. 16), Council Directive (EC) 2004/113 of 13 December
2004 implementing the principle of equal treatment between men and women in the access to and
supply of goods and services (OJ L 373 p. 37) and Council Directive (EC) 2006/54 implementing
the principle of equal opportunities and equal treatment of men and women in matters of
employment and occupation (OJ L 204 p. 23).
5 Case C-177/88, Dekker v. Stichting Vormingscenrum voor Jong Volwassenen, [1990] ECR I-3941.
6 European Union Agency for Fundamental Rights and Council of Europe 2011, at p. 23.
7 See European Commission 2007; Gerards 2007, at pp. 172-173; Burri and Schiek 2009, at
pp. 18-19.
Merel Jonker 213
8 Hannet 2003.
9 Goldberg 2011; Timmer 2011.
10 Goldberg 2011, at p. 280.
11 Monaghan 2011.
12 Notwithstanding the fact that in a number of cases, multiple discrimination could have been
recognized. See for an overview Burri and Schiek 2009, at pp. 7-8.
13 Case C-415/10, Galina Meister v Speech Design Carrier Systems GmbH, [2012].
14 Jonker and Halrynjo 2014.
15 Based on the EEA Agreement, Norway has implemented Council Directive 2006/54/EC. Although
Council Directive 2000/78/EC and Council Directive 2000/43/EC do not form part of the EEA
Agreement, Norway has implemented these directives in its anti-discrimination legislation (NOU
2009:14, 4.6.1).
214 Comparators in multiple discrimination cases: a real problem or just a theory?
their national practices may provide valuable lessons as to how the CJEU
may deal with the comparator problem in multiple discrimination cases.
In the next section, I first discuss the Galina Meister case, where the final
ruling suggests that the CJEU may have left the door open for a contextual
approach. I then consider the national practices of the Netherlands and the
Scandinavian countries,16 after which I provide suggestions regarding the
future assessment of cases by the CJEU.
2. Galina Meister
In 2012 the CJEU gave a preliminary ruling in the Galina Meister case.17 This
ruling may provide some salient points for the treatment of other (including
multiple) discrimination cases. Most importantly, the Court rendered a
decision on evidence requirements when establishing a discrimination
case, more specifically on the consequences of not being able to identify a
comparator.
Galina Meister had Russian nationality and held a Russian degree in systems
engineering, which was recognized in Germany. At the age of 46, she twice
applied for a job as an ‘experienced software developer’ with a company called
Speech Design in Germany, but was rejected on both occasions without
having been invited for a job interview and without any explanation as to
the reasons for her rejection. Meister claimed to have been discriminated
against on the grounds of sex, age and ethnic origin and brought a case
against the employer before the Arbeitsgericht (Labour Court), which was
subsequently appealed before the Landesarbeitsgericht (Higher Labour
Court) and, finally, the Bundesarbeitsgericht (Federal Labour Court). The
latter referred two questions to the CJEU for a preliminary ruling, the first
of which was whether the European anti-discrimination directives18 were
to be interpreted as meaning that a job applicant, who is refused the job
despite meeting the requirements for the post as advertised by the employer,
has a right to know whether the employer engaged another applicant at the
16 Due to the limited amount of cases in Denmark, the Danish cases are not considered this article.
17 See also Farkas 2012.
18 Article 19(1) of Directive 2006/54, Article 8(1) of Directive 2000/43 and Article 10(1) of Directive
2000/78.
Merel Jonker 215
end of the recruitment process and, if so, on the basis of which criteria the
appointment was made.
Secondly, the referring court wanted to know whether, if the answer to the
first question was affirmative, the non-disclosure of the requested information
by the employer gives rise to a presumption that the alleged discrimination
did occur.
With regard to the first question, the Court stated that a job applicant
who ‘claims plausibly that he meets the requirements listed in the job
advertisement and whose application was rejected is not entitled to
information indicating whether the employer engaged another applicant at
the end of the recruitment process’. However, it simultaneously mentioned
that ‘the refusal to grant any access to information may be one of the factors
to take into account in the context of establishing facts from which it may
be presumed that there has been direct or indirect discrimination’. In view
of this answer there was no further need for the Court to reply to the second
question.
One of the main issues in this case concerned the burden of proof. Due to
the fact that employers are not obliged to provide information about the
other applicants – since privacy rights play an important role here – it may
be very difficult for claimants to prove discrimination in cases such as this.19
Information on the identity and qualifications of the other applicants would
be pivotally to identify an appropriate comparator. This implies that even in
discrimination cases on a single ground, an appropriate comparator may not
be readily available. It is true that in this case, as an alternative, a hypothetical
comparator may be construed from evidence about how other persons
have been treated in comparable situations, for example on the basis of the
employer’s previous recruitment practices. However, in cases of multiple
discrimination, it remains unclear who this hypothetical comparator should
be, with options ranging from younger workers, male workers, workers of
German descent, to, perhaps, a young man of German origin.
The Galina Meister case has been heavily debated.20 While academics welcome
the final ruling, they argue that the CJEU ‘missed an opportunity to provide
3. National practice
In our research, we compared and analysed the case law of the Dutch,
Norwegian, Swedish and Danish equality bodies concerning gender-plus
discrimination in the labour market. The study focused on the characteristics
of multiple discrimination cases, on whether comparators were used and
whether the structure of the equality body as well as the legislative structure
affected the way in which these cases were dealt with. Although our study
did not consider which factors were decisive when the equality bodies did
not appoint a comparator, the data do provide some indications.
Focusing on the cases that are comparable with the Galina Meister case
– recruitment cases –, the Norwegian and Swedish equality bodies seemed
more familiar with identifying an ‘integrated comparator’ than the Dutch
equality body.23 In these two countries, employers are obliged, at the request
of an applicant, to provide information concerning the education, working
21 Farkas 2012.
22 Jonker and Halrynjo 2014. Some 50 complainant cases concerning gender-plus discrimination
were compared (including two Danish cases). The cases came before the equality bodies between
2006 and 2010.
23 In all three Swedish recruitment cases an integrated comparator approach was applied and this was
done in 4 out of 7 Norwegian recruitment cases.
Merel Jonker 217
24 Art. 4 Norwegian Equality Act; Art. 13-7 Norwegian Working Environment Act; Art. 14
Norwegian Anti-Discrimination and Accessibility Act; Art. 11 Norwegian Anti-Discrimination
Act; Chapter 2, Art 4 Swedish Discrimination Act (2008:567).
25 In all of the Dutch cases (9) a separate approach was applied (2 with a comparator and 7 without
a comparator).
218 Comparators in multiple discrimination cases: a real problem or just a theory?
4. Conclusion
In the literature, identifying an appropriate comparator is mentioned as one of
the major challenges for equality bodies in tackling multiple discrimination.
Is this concern justified, or does it merely concern a ‘theoretical’ problem?
The practices of the Dutch, Norwegian and Swedish equality bodies show
that equality bodies sometimes apply a contextual approach in multiple
discrimination cases, which provides a feasible alternative to the comparator
approach whereby they compared the complainant with the other
applicants. In the case of the Ghanaian man presented in the Introduction,
Merel Jonker 219
the identification of his comparator did not appear to be necessary for the
Dutch equality body since the statements of the employer were considered
sufficient evidence for his discrimination claim. However, it remains unclear
whether these practices are in line with EU legislation, since the EU anti-
discrimination directives postulate that either a (hypothetical) comparator or
statistical evidence is required to prove a discrimination case. With the ruling
in the Galina Meister case, the CJEU has arguably opened up the possibility
of a contextual approach in discrimination cases, at least in recruitment
cases. Unfortunately, the Court did not provide any further guidance as to
how to prove a discrimination case if an appropriate comparator cannot be
identified. Examples may be obtained from the Dutch equality body, which
has so far referred to three different contextual factors that could be used in
recruitment cases: the selection criteria of the employer, a general evaluation
of all employees working for the employer, and the reasons for the rejection
provided by the employer.
In conclusion, multiple discrimination cases do not appear to pose
insurmountable problems for national judicial practices. In line with these
practices, the CJEU may be advised to investigate the feasibility of contextual
approaches in future (multiple) discrimination cases whenever a comparator
is difficult to identify. If so, additional guidance would be needed regarding
the factors to be considered when applying such an approach. This would
allow for a more straightforward as well was transparent judicial process, and
thus for more legal certainty.
220 Comparators in multiple discrimination cases: a real problem or just a theory?
BIBLIOGRAPHY
Burri, S. and Schiek, D., Multiple Discrimination in EU Law: Opportunities for Legal
Responses to Intersectional Gender Discriminination, European Commission, 2009.
Burri, S., ‘Bewijsperikelen bij vermeende discriminatie’ (‘Evidentiary perils in cases
of alleged discrimination’), Tijdschrift voor de Arbeidsrechtpraktijk, No. 8, 2012,
pp. 360-365.
Crenshaw, K., ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics’, The University of Chicago Legal Forum, 1989, pp. 139-168.
European Commission, Tackling Multiple Discrimination, Practices, Policies
and Laws, Office for Official Publications of the European Communities,
Luxembourg, 2007.
European Union Agency for Fundamental Rights and Council of Europe,
Handbook on European non-discrimination law, Publications Office of the
European Union, Luxembourg, 2011.
Farkas, L., ‘Getting it right the wrong way? The consequences of a summary
judgment: the Meister case’, European Anti-Discrimination Law Review, No. 15,
2012, pp. 23-33.
Gerards, J., ‘Discrimination Grounds’, in: Bell, M., Waddington, L. and Schiek, D.
(eds.), Ius Commune Case Books for Common Law of Europe: Non-Discrimination,
Hart Publishing, Oxford, 2007, pp. 33-184.
Goldberg, B., ‘Discrimination by Comparison’, The Yale Law Journal, Vol. 120,
No. 4, 2011, pp 728-812.
Hannet, S., ‘Equality at the Intersections: The Legislative and Judicial Failure to
Tackle Multiple Discrimination’, Oxford Journal of Legal Studies, Vol. 23, No. 1,
2003, pp. 65-86.
Jonker, M. and Halrynjo, S., ‘Multidimensional discrimination in judicial practice:
a legal comparison between Denmark, Norway, Sweden and the Netherlands’,
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Merel Jonker 221
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Europees recht, No. 10, 2012, pp. 350-354.
Great diversity and some equality:
non-marital legal family formats for
same-sex couples in Europe
Kees Waaldijk
1. Introduction
The year 2013 marks the completion of a major task, while a new challenge
is presenting itself.
This was not only true for Titia Loenen, but also for the European Court
of Human Rights. From 2003 onwards the Strasbourg court has been
developing a body of case law requiring equal treatment of same-sex
and different-sex partners outside marriage. In 2013 it completed this by
ruling that the requirement also applies to the formalisation of family life:
through second-parent adoption (X v Austria) and through partnership
registration (Vallianatos v Greece).1 While developing this case law the Court
simultaneously has been creating a new perspective, by starting to talk very
affirmatively about the realities and legal needs of same-sex couples.2 This
perspective could become highly relevant to same-sex partners in all those
countries where many rights and benefits are still the exclusive privilege of
married different-sex partners.
Meanwhile, the number of European countries that legally recognize same-
sex couples is growing, and so is the number of pieces of EU legislation that
acknowledge non-marital partners (of any gender combination).3 The result
is a wide range of legal ‘family formats’ (other than marriage) that are being
used in this process of recognition, each entailing their own more or less
limited set of rights and obligations. The terminology used for these new
legal family formats is even more varied. Authors of comparative family law
8 On 7 November 2013 the ECtHR decided that it is not acceptable that registered partnership in
Greece is only available to different-sex couples (ECtHR Vallianatos v Greece, 7 November 2003
(Appl.no. 29381/09 and 32684/09, at para. 92).
9 In Poland the recognition of same-sex couples, since 2012, is limited to rent law. When one of
two cohabiting partners is renting an apartment and then dies, the other partner can continue the
rental contract. This follows from Article 691(1) of the Civil Code (‘a person who was in actual
cohabitation with the deceased’), as interpreted by the Supreme Court of Poland in a decision of
28 November 2012 (www.sn.pl/Sites/orzecznictwo/Orzeczenia2/III%20CZP%2065-12.pdf; for
an English summary of that case see www.hfhr.pl/en/sn-podjal-uchwale-w-sprawie-wstapienia-
w-stosunek-najmu-po-zmarlym-partnerze-homoseksualnym). The interpretation given by the
Supreme Court is in line with ECtHR, Kozak v Poland, 2 March 2010 (Appl.no. 13102/02).
10 In Estonia, Article 3 of the Citizen of European Union Act of 2006, in its definition of ‘family
member’, speaks of ‘any other person who, in the EU citizen’s country of origin, is a dependant of
the EU citizen or is a member of his/her household’, but it is not completely certain that same-sex
partners will be included under this definition (see EU Agency for Fundamental Rights 2001,
at pp. 13-15).
11 In Italy same-sex cohabitants may enjoy some recognition because of a judgment of the Court of
Cassation of 15 March 2012 (case 4184/12). Two commentators state that ‘the Court grants gay
couples a right to family life on the basis of the equality/non‐discrimination provision, Article 3
of the Italian Constitution, and makes clear that this right can be judicially protected, even absent
any action by the Legislature’ (Fichera and Hartnel 2012, at p. 7).
12 For the (unconfirmed) applicability to same-sex couples of the legal protection against domestic
violence in Serbia, see Cvejić Jančić 2010, at p. 81.
226 Great diversity and some equality: non-marital legal family formats for same-sex couples in
Europe
Table 1: Chronology of the European countries that have started to legally recognize
same-sex couples*
Is there any legal Can same-sex couples Do same-sex couples have
recognition of cohabitation enter into a registered access to civil marriage?
of same-sex couples? partnership? If so, since when?
If so, since when? If so, since when?
Denmark 1986 no longer (1989-2012) 2012
Norway 1991 no longer (1993-2009) 2009
Sweden 1988 no longer (1995-2009) 2009
Iceland 1994? no longer (1996-2010) 2010
Greenland (DK) ? 1996 in preparation
Netherlands 1979 1998 2001
France 1993 1999 2013
Belgium 1996 2000 2003
Germany 2001 2001 no
Finland 2001? 2002 in preparation
Luxembourg ? 2004 2015
Spain 1995 no, regionally from 1998 2005
England & 1999 2005 2014
Wales (UK)
Scotland (UK) 2000 2005 2014
Northern ? 2005 no
Ireland (UK)
Slovenia ? 2006 no
Andorra ? 2006 no
Czech Republic ? 2006 no
Switzerland 2000? 2007, regionally from 2001 no
Hungary 1996 2009 no
Portugal 2001 no 2010
Austria 1998 2010 no
Ireland 1995 2011 in preparation
Liechtenstein ? 2011 no
Isle of Man ? 2011 no
(UK)
Jersey (UK) ? 2012 no
Malta 2014 2014 no
Kees Waaldijk 227
26 The list includes three pieces of legislation that speak of ‘dependants’ (Directive 2004/38/EC,
Regulation 632/2010, Directive 2012/29/EU). That word is capable of including partners, but
it is also possible to clearly distinguish between partners and dependants. The EU Court of First
Instance has suggested that the word ‘dependants’ does not include partners in a ‘union between
two persons’ (Case T-58/08 P, Commission v Roodhuijzen, [2009] ECR II-03797, at para. 84).
27 Whether it is still permissible in EU law to distinguish between same-sex and different-sex
marriages that have lawfully been entered into, is a question that has not yet been decided by the
Court of Justice of the EU. However, it seems to follow from the Maruko, Romer and Hay cases that
such a distinction would be unlawful in the field of spousal benefits in employment (see Table 6).
232 Great diversity and some equality: non-marital legal family formats for same-sex couples in
Europe
European Court of Human Rights (see Table 5). Some of the directives use
the phrase ‘registered partnership’, but interestingly, none of the examples
in Table 3 is limited to registered partnership: forms of cohabitation are
also covered, provided all substantive and formal conditions are met.28 Some
of the directives and regulations do indeed require some formality, but the
way these are phrased (‘duly attested’ and ‘document … of a member state
acknowledging their status’) suggests that a later declaratory document is
sufficient. The word ‘cohabitation’, however, does not appear in the phrases
used (only the regulation on accounting standards speaks of ‘domestic
partner’), but some require the relationship to be similar to marriage,
‘intimate’, stable or ‘long-term’.
Finally, it is important to point out that the listed directives and regulations
hardly oblige unwilling member states to start to recognize unmarried
partners.29 The obligation typically only applies when the member state
concerned already recognizes such partners. The only example where all
member states are being forced to provide some substantial recognition is the
recent Victims of Crime Directive.30 The unease surrounding this novelty
becomes apparent in the fact that the relationship not only needs to have a
‘stable and continuous basis’ and a ‘joint household’, but that it must also be
both ‘committed’ and ‘intimate’.
28 This is reflected in the major case interpreting the notion of ‘unmarried partner’ in Article 72 of the
EU Staff Regulations: Case T-58/08 P, Commission v Roodhuijzen, [2009] ECR II-03797, at paras.
77, 90, 96 and 98.
29 The Staff Regulations and the Statute for Members of the European Parliament, however, do
contain such an obligation for the relevant institutions of the European Union.
30 Directive 2012/29/EU, establishing minimum standards on the rights, support and protection of
victims of crime.
Kees Waaldijk 233
* MS = member state
31 The few relevant cases decided by the UN Human Rights Committee have also been included in
the following tables.
32 ECtHR, Schalk & Kopf v Austria, 24 June 2010 (Appl.no. 30141/04). The UN Human Rights
Committee had reached a similar conclusion, by holding that marriage of a homosexual couple falls
outside the scope of the right to marry as guaranteed in Article 23 of the International Covenant
on Civil and Political Rights (UN HRC 17 July 2002, Joslin v New Zealand, Comm 902/1999).
33 ECtHR, Parry v United Kingdom, 28 November 2006 (Appl.no. 42971/05); ECtHR, Hämäläinen
v Finland, 16 July 2014 (Appl.no. 37359/09). It is established case law that transsexuals should not
be excluded from the right to enter into a different-gender marriage (ECtHR, Goodwin v United
Kingdom, 11 July 2002 (Appl.no. 28957/95)).
Kees Waaldijk 235
not doing so until 2005, nor Austria for not doing so until 2010.34 However,
the ECtHR does not consider it acceptable to introduce a form of registered
partnership for different-sex couples only.35
34 ECtHR, Courten v United Kingdom, 4 November 2009 (Appl.no. 4479/06); ECtHR, Schalk &
Kopf v Austria, 24 June 2010 (Appl.no. 30141/04), at paras. 105-106.
35 ECtHR, Vallianatos v Greece, 7 November 2013 (Appl.no. 29381/09 and 32684/09), at paras. 73
and 92.
236 Great diversity and some equality: non-marital legal family formats for same-sex couples in
Europe
Directive’). Also since 2003, the other European court (ECtHR) and the
UN Human Rights Committee (UN HRC) have consistently held that to
distinguish between same-sex and different-sex cohabitants is incompatible
with the right to non-discrimination (see Table 5). In these cases (unlike the
ones listed in Table 8) the ECtHR has no difficulty in finding that same-sex
partners are ‘in a relevantly similar situation to a different-sex couple’.36
Until now, the European courts have only in very specific circumstances been
willing to declare differentiations between marriage and cohabitation to be
discriminatory (see Table 6 and Table 7). The Petrov judgment of the ECtHR
on phone calls from prison suggests that this court may be willing to entertain
further challenges to rules that exclude unmarried partners, provided there
are no strong counter-arguments of the type acknowledged in the Van der
Heijden case on giving evidence. And the Roodhuijzen judgment of the EU’s
36 See for example ECtHR, X v Austria, 19 February 2013 (Appl.no. 19010/07), at para. 112.
Kees Waaldijk 237
In the case law of the ECtHR there is no full recognition, as yet, for the
fact that in many countries same-sex couples cannot marry (or even register
as partners) and that therefore the exclusion of unmarried partners from
certain rights and benefits has a disparate impact on same-sex partners (i.e.
is indirectly discriminatory on grounds of sexual orientation).38 The latter
argument has been tried several times. In one older case, Estevez, the Court
responded by saying that the differentiation in question was justified by the
legitimate aim of protecting the family based on marriage (see Table 7). In
more recent cases, the typical response of the Court is that in law cohabitation
37 Case T-58/08 P, Commission v Roodhuijzen, [2009] ECR II-03797, at paras. 77, 90, 96 and 98.
38 Johnson 2013, at p. 139; Waaldijk 2012, at paras. 10, 22, 31.
238 Great diversity and some equality: non-marital legal family formats for same-sex couples in
Europe
All in all, the main European courts have only provided little concrete
recognition of same-sex and non-marital relationships. And the recognition
they have so far offered mostly depends on whether the national legislation
in question already provides some recognition of non-marital couples.
Both courts use all kinds of terms for registered forms of partnership. The
Strasbourg court mostly uses ‘civil partnership’ to refer to the French pacte
civil de solidarité, mostly ‘registered partnership’ to refer to the Austrian
Eingetragene Partnerschaft, and mostly ‘civil union’ to refer to the Greek
variety, while the Luxembourg court mostly uses ‘life partnership’ to refer
to the German Eingetragene Lebenspartnerschaft, and mostly PACS or ‘civil
solidarity pact’ to refer to the French pacte civil de solidarité.
40 See for example ECtHR, EB v France, 22 January 2008 (Appl.no. 43546/02), at paras. 43 and 49;
on this right in general, see Waaldijk 2013.
41 ECtHR, Johnston v Ireland, 18 December 1986 (Appl.no. 9697/82), at paras. 55-56.
42 ECtHR, Schalk & Kopf v Austria, 24 June 2010 (Appl.no. 30141/04), at para. 94.
43 ECtHR, X v Austria, 19 February 2013 (Appl.no. 19010/07), at para. 139; see also ECtHR, Kozak
v Poland, 2 March 2010 (Appl.no. 13102/02), at para. 98; and ECtHR, Vallianatos v Greece,
7 November 2013 (Appl.no. 29381/09 and 32684/09), at para. 84.
44 ECtHR, PB & JS v Austria, 22 July 2010 (Appl.no. 18984/02), at para. 29.
Kees Waaldijk 241
be violating the right to respect for private and family life of married spouses
one of whom is needing legal recognition of an acquired gender.53 That case
involved a couple that would become same-sex through a legal change of the
gender of one of them, but the same reasoning could apply to other same-sex
couples – if the Court would take seriously what it has said about the needs
of same-sex couples for legal recognition and protection.54
7. Conclusion
On the one hand, there is a clear trend of more equality and more diversity,
in both national and European law. And this is accompanied in Strasbourg
by a whole vocabulary that validates same-sex and non-marital family
life, thereby encouraging lawmakers to extend greater legal protection
and recognition. On the other hand, same-sex partners have mostly been
unsuccessful in winning cases in the European courts (or in being included
in EU legislation that has an impact on the member states), unless national
law already offers some recognition to family life outside marriage.
Whenever national law does recognize different-sex couples outside marriage,
the European Court of Human Rights finds it increasingly easy to use non-
discrimination arguments to include same-sex partners in this recognition,
even when it is about access to registered partnership (Vallianatos) or adoption
(X v Austria).55 In this respect the principle of equality has been very effective
– both judicially and politically – in helping to realize the human rights of
same-sex couples. Here the comparability test does not create a stumbling-
block, so the court could move quickly to the question of justification. And
in none of these cases, where the comparator is an unmarried different-sex
couple, was a sufficient justification found.
Where national law does not yet recognize unmarried different-sex couples,
both European courts have put a lot of emphasis on the test of comparability:
56 But see also the one and only case where the court found that the exclusion of all unmarried
partners (in this case of different sex) amounted to discrimination: ECtHR, Petrov v Bulgaria,
22 May 2008 (Appl.no. 15197/02).
244 Great diversity and some equality: non-marital legal family formats for same-sex couples in
Europe
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The equality of the (non) trans-parent:
women who father children
Parents mostly become parents by having sex and thus conceive a child,
which is born about nine months later. This fact of life is reflected in the
Dutch law on affiliation (afstammingsrecht) just like it is in most parts of
the world. Biology may not be destiny but it is often the easiest way into
(legal) parenthood. These days there seems to be a new exception to this
rule, and that exception is the trans woman who begets a child after having
changed her legal sex. It is this exceptional and, as will be seen, quite ‘non-
transparent’ legal position of the female ‘father’ that is explored and assessed
in this contribution.
The issue and corresponding terminology will be discussed in more detail in
section 1. Next (section 2) the possibilities for people – trans* and cis* – to
acquire legal parenthood will be explored. In section 3 the parental status
of trans women who father children will be compared to that of other
groups. Several factors seem to influence people’s possibilities to acquire
legal parenthood: biological affiliation, cis/trans status, the presence and
sex of a partner, the legal status of the relationship with that partner, and
last but not least the presence of a ‘third party’ like an ex-partner, a sperm
donor or a surrogate mother.1 People’s legal status as male or female for the
acquisition of legal parenthood seems to have lost some if not much of its
decisiveness. The outcome of this comparison will be briefly assessed in
terms of human rights generally and of women’s human rights in particular.
Some attention will be devoted in this regard to the concerns expressed
in the 1990s by feminist legal scholars, among whom was Titia Loenen.
They expressed doubts regarding the developments in the area of family law,
1 Thanks to our colleague Evelien Verhagen (Molengraaff Instituut, UCERF) for pointing out this
latter aspect.
248 The equality of the (non) trans-parent: women who father children
1 July 2014 trans men are allowed to give birth to children, and trans women
may impregnate cis women and trans men.5
The Dutch legislator anticipated the possibility of pregnant (trans) men
and (trans) women ‘fathering’ children. In a first draft of the bill to drop
the sterilisation requirement, it was proposed that trans men who would
become parents one way or another would still be registered as the mothers
of those children and trans women would become fathers, despite them
being legally male and female respectively. This is in line with the principle
laid down in Article 1:28c(2) of the Dutch Civil Code (Burgerlijk Wetboek,
BW) that provides that legal sex changes do not affect already existing family
relationships. Thus, a trans man who is already the mother of one or more
children will remain their mother, at least for all legal purposes.6 Trans
women remain the father of their already existing children.
However, at some point in the legislative process the legislator decided to
change perspective and take the new sex of the (trans) parent as the starting
point for determining parental status regarding children born after a legal
sex change. It was felt to be confusing for children to have a mother who,
according to her birth certificate, for all legal purposes would be the child’s
father.7 This argument is not watertight as will be seen later on.
One exception to the general rule of the ‘new’ sex was deemed necessary:
the trans man who gives birth to a child will be regarded as the child’s legal
mother. This is because of one of the core principles of Dutch affiliation law:
the mater semper certa est rule (the mother is always certain). If the person
giving birth to a child would not automatically become the child’s mother,
the child might not have any legal parent, since there is not always a (legal)
5 Wet van 18 december 2013 tot wijziging van Boek 1 van het Burgerlijk Wetboek en de Wet
gemeentelijke basisadministratie persoonsgegevens in verband met het wijzigen van de voorwaarden
voor en de bevoegdheid ter zake van wijziging van de vermelding van het geslacht in de akte van
geboorte (Act of 18 December 2013 amending Book 1 of the Civil Code and the Act on the
municipal registration of personal identity information relating to changes in the conditions for
and competence regarding changes in the registration of sex on the birth certificate), Stb. 2014, 1.
6 Compare the similar situation in ECtHR, P.V. v. Spain, 30 November 2010 (Appl.no. 35159/09),
which regarded a trans woman who was, legally speaking, the father of her child born prior to her
legal sex change.
7 Kamerstukken II, 2012/13, 33351 no. 6, at p. 10. See also: Forder and Vonk 2013, at p. 2451.
250 The equality of the (non) trans-parent: women who father children
8 Wet van 25 november 2013 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met
het juridisch ouderschap van de vrouwelijke partner van de moeder anders dan door adoptie (Act
of 25 November 2013 amending Book 1 of the Civil Code regarding legal parentage of the female
partner of the mother other than by adoption), Stb., 2013, 480.
Marjolein van den Brink and Jet Tigchelaar 251
begetters leads through Article 1:28c(3) BW, which in turn refers to chapter
11 of book 1 BW (affiliation law).
The way to attain legal parenthood for female begetters is mapped out in the
next section.
2. Different roads to legal parenthood for cis* and trans* and for same-
sex couples
There are several roads to legal parenthood. For women the options used to
be much more limited than for men, but women have caught up in the past
few years, especially since the introduction of easier options for the female
partners of birth mothers, most recently in 2014.9
The classic way is for a (cis) man and a (cis) woman10 to marry and have
children. The woman becomes a parent by giving birth to the child, the man
by being married to the woman. Thus, (cis) fathers do not need to be the
biological father to automatically become a legal father.
In the 1990s the position of biological fathers was strengthened, especially
in relation to single mothers and lesbian couples. Whereas female couples at
the time could not (and still cannot really)11 rely on the European Court of
Human Rights to protect their status as a (legal) parent, biological fathers
received a warmer reception.12 Biological fathers may claim affiliation in
court when the birth mother refuses to consent to his recognition of the
child (Art. 1:204(3) BW). Depending on the individual case, the biological
9 Much has changed since Titia Loenen listed the different categories of parents in 1995. See Loenen
1995, at p. 93. On the developments regarding legal parenthood of female same-sex couples see
e.g. Vonk and Bos 2012.
10 Note that these people do not per se have to be cis: a trans woman and a trans man who have
not had any surgery on their reproductive organs may achieve a simular situation, depending
on the domestic legal framework. See e.g.: ‘“We have the parts so we use them”: Transgender
couple who BOTH changed sex prepare to explain to their two children how their father
gave birth while their mom provided the sperm’, MailOnline, 11 August 2014, available at:
www.dailymail.co.uk/news/article-2721891/Transgender-couple-prepare-telling-children-father-
actually-mother-vice-versa.html#ixzz3GDfYrXtv (last visited 19 December 2014).
11 Cf. ECtHR, Gas & Dubois v. France, 15 March 2012 (Appl.no. 25951/07). Currently pending:
Bonnaud & Lecoq v. Framce (Appl.no. 6190/11), filed 8 January 2011. Bonnaud and Lecoq, a
lesbian couple, both had a child and now wish to be granted parental authority in respect of their
partner’s child.
12 See Loenen 1995, at p. 94.
252 The equality of the (non) trans-parent: women who father children
father’s claim may even override a concurring claim for legal parental status
by the birth mother’s partner who together with the mother wished for the
child to be conceived and born. The only unassailable obstacle to a claim to
legal parenthood by biological fathers is the presence of a husband who is
in a formal legal relationship with the mother and who was already married
to the mother when the child was born: Article 1:204(1)(e) BW prevents
recognition if a child already has two (legal) parents.
Other ways to obtain legal parenthood are adoption and recognition of
parentage. Recognition was not possible for women prior to 1 July 2014.
The possibilities for male couples, especially cis males, to become the legal
parents of a child are much more restricted than those for two females. Two
men (with the exception of fertile trans men) are dependent on a woman to
give birth to a/their child. In the Netherlands that woman, regardless of her
intentions regarding the child, will automatically be qualified as the legal
mother, as explained above. This means that only one of the partners in a
male couple can easily obtain legal fatherhood, for example by recognising
the child. Moreover, this is only possible if the birth mother is not in a formal
relationship (a marriage or registered partnership) with a man, because in
that case the husband will automatically be granted parental status. It does
not matter for the recognition whether it is the biological father (if the child
was indeed conceived with the sperm of one of the partners) or the other
partner who acknowledges the child. The second partner, the partner who
does not recognise the child, can only obtain legal parenthood by adopting
the child.13
There are some legal peculiarities for trans parents. One of these is that
trans parents can be a mother and father at the same time. A trans man,
for example, who gives birth to a child and thus becomes a mother, can
simultaneously become the legal father of a child born to his wife (even if this
was accomplished with the help of an anonymous donor). The deletion of
13 Unless the legal parenthood of the non-biological father would be contested, for instance by the
child, in which case the way to legal parenthood for the biological father would be open. However,
since his partner would then lose his status as a legal parent, that would not solve the couple’s
problem.
Marjolein van den Brink and Jet Tigchelaar 253
sterilisation as a requirement for legal sex changes has increased the number
of situations in which this may happen. However, also prior to 1 July 2014,
a trans person could be the legal father of one child and the legal mother
of another. Only, at the time, this could not happen simultaneously. It was
only possible with regard to children born before and after their parent’s legal
change of sex. The children born after the legal change of sex would normally
not be biologically related to their trans parent, because of the sterilisation
requirement. Still, even before 1 July 2014 it was possible for trans women
to be biologically related to their child born after a sex change if the child
was conceived with sperm collected and frozen prior to the sterilisation. For
trans men this was more complicated, since even a conception with their
eggs harvested prior to their sex change would result in the (surrogate) birth
mother being identified as the child’s legal mother.
So how then, does the female ‘father’ become the legal parent of a child?
For those taking their first steps in Dutch affiliation law, this may be a
somewhat bewildering experience. Despite appearances, the starting point is
not Article 1:28c(3) BW, but title 11 BW on affiliation law as such. Article
1:198 BW (the second provision of title 11) is applicable to trans women.
They do not give birth to their child as meant in paragraph a, nor are they part
of a couple that have made use of an anonymous sperm donor as mentioned
in paragraph b, so these are not applicable. However, paragraph c (newly
introduced to simplify the acquisition of legal motherhood for the co-mother
in lesbian couples) states that ‘the mother of a child is the woman who has
recognised the child’. The legal concept of recognition is dealt with in Article
1:204 BW. This provision does not state that trans women can recognise
their biological child, though. Article 1:204 BW only lists the situations in
which the recognition of a child is legally void, for example when this is done
by someone under 16 years of age. Therefore, the article’s applicability has
to be inferred by applying an a contrario argument: since there is nothing in
this provision to suggest that recognition by a trans woman/begetter would
be legally void, the recognition must be legal.
Instead of recognition, trans women, just like other women in a same-sex
relationship, may opt for adoption. Although the legal procedure to adopt
254 The equality of the (non) trans-parent: women who father children
3. The legal position of the trans woman who fathers a child compared
The good news for the trans woman/begetter is that she, different from other
co-mothers in a (legally formalised) lesbian relationship, does not have to
compete for the right to recognise the child with the biological father of the
child (the known donor). Biological fathers may ask the court for permission
to recognise the child, even if the birth mother would prefer her female
partner to become the child’s legal parent. The court will grant permission,
unless it would harm the relationship between the mother and child or would
otherwise not be in the child’s best interests (Art. 1:204(3) BW). However,
no such competitor exists in the trans woman/begetter’s case.
Her position is also strong in comparison with the position of the known
donor or ex-partner, who – just like the trans woman/begetter – fathered the
child. They may have to compete for the right to recognise the child with
the mother’s (new) partner. The decisive difference here is not sex, biology,
sexual orientation or cis/trans status, but the presence of a third party.15
However, there are two noteworthy differences between the trans woman/
begetter and other parents. The first difference is that cis men will automatically
become a child’s father if the child is born within a formal relationship,
even if use has been made of the sperm of a known donor. In an informal
relationship, the cis man can recognise the child (although he might have to
compete with the claims of a known donor). The trans woman, on the other
hand, will not automatically obtain legal parental status. If she is married to
14 In the case of co-mothers who are not biologically related to their child there may be additional
reasons to opt for adoption. Recognition may be challenged by the known sperm donor, as well as
by the child itself later in life. This is not possible in the case of adoption. See for a discussion e.g.:
www.babybytes.nl/encyclopedie/encyclo.php (last visited 19 December 2014).
15 The contribution of a ‘third party’, however, is not always decisive. The use of donor sperm by
a cis male/cis female (or trans male) couple does not affect the male partner’s parental status at
all. Likewise, the use of anonymous donor sperm by female couples is no obstacle for the female
partner of the co-mother to automatically obtain legal parenthood (within a formal relationship).
Marjolein van den Brink and Jet Tigchelaar 255
or in a registered partnership with the birth mother, she can recognise the
child. If the relationship is informal, she will have to adopt her own child.
A second difference becomes clear when the position of the trans woman/
begetter is compared to the position of trans and cis women who are not
biologically related to the child with whom they wish to establish legal ties.
The latter group may acquire automatic legal motherhood if they are in a
formal relationship with the birth mother and the child was conceived with
the sperm of an unknown donor. This is remarkable, because the underlying
rationale of Dutch affiliation law is based on biological affiliation. Even
though biological links do not always have priority over other relational
aspects such as social parenthood, biological ties are generally considered
to be important.16 This is reflected, for instance, in Article 1:204(3) BW,
according to which the court may override the birth mother’s refusal to
consent to the recognition of her child by the person who fathered the child or
donated semen. Despite the importance attached to biological relationships,
current affiliation law ‘privileges’ trans women who are not biologically
related to their child by granting them automatic legal parenthood (if they
are in a formal relationship with the birth mother), over trans women who
are biologically related to their child, since they will have to recognise their
own child.17
It is true that the recent legislative changes to make the acquisition of legal
parenthood easier for co-mothers, reflect an apparently similar unintended
incentive to make use of an anonymous donor instead of a known donor.18
A major difference, however, is that in the case of trans women who father a
child, there is no third party. Contrary to the biological principle underlying
affiliation law, the biological ties of the trans woman/begetter work to her
disadvantage instead of in her favour.
16 The landmark decision for human rights law was the decision in the Marckx v Belgium case,
ECtHR, Marckx v Belgium, 13 June 1979 (Appl.no. 6833/74).
17 However, the possibility of recognition is an advantage as compared to the situation faced in
2012 by the trans parent who could only adopt her own (fathered) child. The Court of Appeal
in Leeuwarden found that this contravened Article 8 ECHR and decided that the trans woman
should be registered as the child’s ‘parent’ (not the father or mother). See Gerechtshof Leeuwarden,
23 December 2010, ECLI:NL:GHLEE:2010:BO8039.
18 The incentive is ‘perverse’ since it is contrary to the principle underlying affiliation law, i.e. that
children have the right to know from whom they are descended.
256 The equality of the (non) trans-parent: women who father children
Compared to the situation of (cis) men who father a child within a formal
relationship, trans women are worse off as well, since these men will
automatically become the legal father of their child. The same is even true
for men (cis or trans) who are not biologically related to their child: Article
1:199(a) BW provides that the man who is in a formal relationship with the
birth mother will automatically be regarded as the child’s legal father.
Regarding the position of the adults involved, one could argue that this
discriminatory treatment of trans women who father children, as compared
to men, violates Article 23(2) in combination with Article 26 (equality
before the law) of the International Covenant on Civil and Political
Rights (ICCPR). This seems to be reflected in Principle 24 of the so-called
Yogyakarta Principles, where it is emphasised that discrimination on the
basis of gender identity regarding the right to found a family is incompatible
with human rights law.22 One might likewise argue that the differential
treatment of trans women violates Article 16, and paragraph 1d in particular,
of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW). This seems an especially valid argument since
the adoption of CEDAW General Recommendation No. 28,23 in which
document the monitoring body stressed the relevance of the convention for
discrimination on the basis of gender identity.
22 The Yogyakarta Principles on the application of international human rights law in relation to
sexual orientation and gender identity (2007) were drafted by a group of international experts. As
a non-legal document it is not binding, and cannot even be regarded as soft law. However, it has
been explicitly endorsed by an increasing number of countries, including by the Netherlands. See
for example: (Dutch) Ministry of Foreign Affairs 2007, at p. 54: ‘The government regards
the Yogyakarta Principles as a guideline for its policy’. The Yogyakarta Principles can be found at:
http://www.yogyakartaprinciples.org/principles_en.pdf (last visited 5 December 2014).
23 CEDAW Committee, 2010, ‘General Recommendation No. 28 on the core obligations of States
parties under Articl2 of the Convention on the Elimination of All Forms of Discrimination
Against Women’, UN Doc. CEDAW/C/GC/28.
24 On the importance of a realistic valuation of caring tasks during marriage and afterwards, see e.g.
Tigchelaar 1999.
258 The equality of the (non) trans-parent: women who father children
4. Conclusion
In the previous sections it has been shown that trans women who father
children (after their legal sex change) are not treated equally compared to
other people who father a child within a formal relationship. This seems to
contravene both the equality principle as laid down in many human rights
treaties, as well as the importance attached to biological ties by human rights
bodies and instruments.
Since it seems unlikely that a legislative change to improve trans parents’
position will be disadvantageous to the status of women (or primary carers)
generally, there seems no reason not to change the law in this respect.
However, if the reader of this brief article, while trying to follow the intricacies
of Dutch affiliation law, has experienced the same bewilderment as we did
when trying to figure this out, the reader may agree that legislative changes
may be desirable for more reasons than ‘just’ the position of trans women
fathering children. The law seems to be in serious need of simplification and
accessibility, without, of course, losing sight of important aspects such as
caring activities, biological ties and social parenting. In 2002, one of Titia
Loenen’s Ph.D. candidates, Annelies Henstra, proposed a revamping of the
law relating to affiliation and parentage by taking as a starting point the
Marjolein van den Brink and Jet Tigchelaar 259
25 Henstra 2002.
26 Regeling van 28 april 2014, nr. 512296, houdende instelling van een staatscommissie Herijking
ouderschap, Stcrt. 2014, 12556.
27 The dichotomous construction of sex as male or female is increasingly criticised. Thus, it may not
be too far-fetched to expect that at some point in the future a new category of parents – being
neither male nor female – may come into being. Illustrative of these developments is the research
commissioned by the deputy minister of Security & Justice and carried out by van den Brink &
Tigchelaar regarding the possibilities and consequences of leaving people’s legal sex undetermined
in official records. See the deputy minister’s letter of 4 December 2013 to the chairperson of the
Tweede Kamer (‘Lower House’), ref.no. 458792. The research report be published early March
2015, M. van den Brink and J. Tichelaar, M/V en verder. Sekseregistratie door de overheid en de
juridische positie van transgenders [M/F and beyond. Sex registration by the government and the
legal position of transgenders], Juridische Uitgevers, 2015. The research report, with a summary in
English, will be made available online in March 2015, at www.wodc.nl.
260 The equality of the (non) trans-parent: women who father children
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het VN-kinderrechtencomité (Mothers in the mainstream. A gender analysis of the
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van den Brink, M. and J. Tichelaar, M/V en verder. Sekseregistratie door de overheid
en de juridische positie van transgenders [M/F and beyond. Sex registration by the
government and the legal position of transgenders], Boom Juridische uitgevers,
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Forder, C. and Vonk, M., ‘Kroniek personen- en familierecht’ (Personal status law
and family law chronicle), NJB, No. 35, 2013, pp. 2444-2452.
Henstra, A.E., Van afstammingsrecht naar ouderschapsrecht. Een beschouwing over de
positie van sociale en biologische ouders in het familierecht (From affiliation law to
parenting law. A discussion on the position of social and biological parents in
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Loenen, T., ‘Echte of onechte ouders. Zorg als grondslag voor ouderschap’ (Real or
Fake Parents. Caring as a foundation for parenthood), Nemesis, Vol. 11, No. 4,
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over het alimentatierecht (Who cares? Care and autonomy in the politico-legal
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Vonk, M. and Bos, H., ‘Duo-moederschap in Nederland vanuit juridisch en
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from a legal and developmental psychology perspective), Familie en Recht, 2012,
DOI: 10.5553/FenR/.000005.
Parents who want to reconcile work and care:
which equality under EU law?
Susanne Burri
1. Introduction
Mr Roca Álvarez wanted to reduce his daily working time in order to be
able to take care of his baby. According to Spanish legislation, he was not
entitled to such a working time reduction because the mother of his child
was self-employed. Only fathers of children whose mother was employed
had such a right. The Court of Justice of the EU (hereafter: the CJEU or the
Court) considered that mothers who are employed always had such a right,
while fathers only had a derived right, i.e. when the mother was employed.
Such direct sex discrimination is contrary to EU law.1 Three years later, the
CJEU decided in a quite similar Spanish case that Mr Betriu Montull was
not entitled to some benefits related to leave, because the mother of his child
did not fulfil the conditions required in order to entitle the biological father
of her child to such rights. Mr Betriu Montull, just as Mr Roca Álvarez,
had only a derived right from the mother’s right, but he had no individual,
autonomous right. In his opinion in the Betriu Montull case AG Wathelet
applied the Court’s reasoning in the Roca Álvarez case and concluded that
also in this case the principle of sex discrimination had been infringed. In his
view entitlements to leave were denied to fathers in both cases, which were
very similar and no justification for this direct sex discrimination applied.
However, the Court followed a different approach and instead emphasized
the special relation of the mother and the child.2 Fathers in the same situation
as Mr Betriu Montull are thus denied rights related to their parenthood.
What happened in these two cases and in other cases on issues relating to
rights of parents who want to care for children? How were the concepts
1 Case C-104/09, Pedro Manuel Roca Álvarez v Sesa Start España ETT SA, [2010] ECR I-8661.
2 Case C-5/12, Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS), [n.y.p.].
262 Parents who want to reconcile work and care: which equality under EU law?
9 Article 157 TFEU (the former Articles 119 EEC and 141 EC) and Directive 2006/54/EC of the
European Parliament and of the Council of 5 July 2006 on the implementation of the principle
of equal opportunities and equal treatment of men and women in matters of employment and
occupation (recast) (OJ L 204, p. 23).
10 Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on
part-time work concluded by UNICE, CEEP and the ETUC – Annex: Framework agreement on
part-time work (OJ L 14, p. 9).
11 See the definition of direct discrimination in Article 2(1)(a) of Directive 2006/54. Less favourable
treatment of a woman related to pregnancy or maternity leave is included in the prohibition of
discrimination(Article 2(2)(c) of Directive 2006/54).
12 Case C-177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen
(VJV-Centrum) Plus, [1990] ECR I-03941.
13 For example AG Wahl acknowledged this in his opinion in case C- 363-12 (Z.) at para. 55.
14 Case C-394/96, Mary Brown v Rentokil Ltd., [1998] ECR I-4185, at para. 22.
15 Case C-438/99, Maria Luisa Jiménez Melgar v. Ayuntamiento de Los Barrios, [2001] ECR I-06915.
264 Parents who want to reconcile work and care: which equality under EU law?
for a large proportion of its duration (Tele Danmark).16 Less strong rights
are provided in the field of pay, following the case of McKenna.17 Absences
due to pregnancy–related illness during pregnancy prior to maternity leave
and after the end of the maternity leave may be treated, with regard to pay,
similar to absences related to other forms of illness as far as the protection in
relation to pregnancy and maternity is guaranteed.
by the Court in relation to parental leave, for example in the Lewen case, in
which a Christmas bonus was at stake.21
23 Proposal for a Directive of the European Parliament and of the Council amending Council
Directive 92/85/EEC on the introduction of measures to encourage improvements in the
safety and health at work of pregnant workers and workers who have recently given birth or are
breastfeeding, COM(2008) 637.
24 T7-0373/2010.
25 Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, Commission Work
Programme 2015 A New Start, COM (2014) 910 final, at p. 12.
26 Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement
on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing
Directive 96/34/EC (OJ L 68 p. 13).
27 Case C-537/07, Evangelina Gómez-Limón Sánchez-Camacho / Instituto Nacional de la Seguridad
Social (INSS), Tesorería General de la Seguridad Social (TGSS), Alcampo SA, [2009] ECR I-06525.
Susanne Burri 267
28 Case C-116/08, Christel Meerts v Proost NV, [2009] ECR I-63. A similar approach is taken in
C-588/12, Lyreco Belgium NV v Sophie Rogiers, [2014].
29 See also Eurostat 2009, at p. 20.
30 Article 21(2) of the Recast Directive 2006/54.
268 Parents who want to reconcile work and care: which equality under EU law?
3. Comparability issues
Some of the cases described above illustrate the difficulties concerning
comparability issues when applying the prohibition of sex discrimination.
It became clear, for example, that while, at the one hand, no comparator is
required in pregnancy cases (Dekker), the Court on the other hand considered
absences due to pregnancy-related illness to be comparable to absences due
to other illnesses before and/or after the end of maternity leave in relation to
pay (McKenna).
The issue of comparability might also be problematic in indirect sex
discrimination cases in relation to parental leave. In the judgment in
Österreichischer Gewerkschaftsbund, the Court considered that unpaid periods
of leave due to military service and such periods due to parental leave were
not comparable.31 The Court held that ‘in the present case, parental leave is
leave taken voluntarily by a worker in order to bring up a child. The voluntary
nature of such leave is not lost because of difficulties in finding appropriate
structures for looking after a very young child, however regrettable such a
situation may be’. The Court emphasized that the performance of national
service, on the other hand, corresponds to a civic obligation laid down by law
and is not governed by the individual interests of the worker.32 The public/
private divide is clearly reflected in the approach of the Court in this case
and fails to take into account the context of lacking child care facilities. The
EU case law also shows tensions between protective measures for women and
reconciliation policies designed in view of a more balanced division of work
and care between men and women.
33 At stake was Directive 76/207 (now repealed by Directive 2006/54).: Case 184/83, Ulrich
Hofmann v Barmer Ersatzkasse, [1984] ECR 3047.
34 At para. 25.
35 See for example McGlynn 2000.
270 Parents who want to reconcile work and care: which equality under EU law?
of their professional activities is, in the same way as for men, a principle
which is widely regarded in the legal systems of the member states as being
the natural corollary of the equality between men and women, and which
is recognised by Community law’ (Gerster and Hill).36 Although the Court
still placed emphasis on protecting women (and men) in this field, the fact
that it pointed out that there is a natural corollary between this principle and
equality between men and women offers more room to address problems in
this field, even if there are no specific entitlements in a particular case.
In the already mentioned Roca Álvarez case, the Court went a step further.
At stake was Spanish legislation already adopted in 1900 entitling female
workers to daily ‘breastfeeding’ leave for nine months after birth.37 Fathers
also had this right since 2007, but only if the mother was employed: they
thus had a derived right. The mother of Mr Roca Álvarez’s child was self-
employed and Mr Roca Álvarez was therefore not entitled to the requested
daily leave. The Court considered that this legislation had the effect of
changing working hours. However, mothers who were employed were
always entitled to ‘breastfeeding’ leave, whilst fathers who were employed
were only so entitled if the child’s mother was also an employed person. The
Court stated: ‘Thus, for men whose status is that of an employed person the
fact of being a parent is not sufficient to gain entitlement to leave, whereas it
is for women with an identical status. However, the positions of a male and
a female worker, father and mother of a young child, are comparable with
regard to their possible need to reduce their daily working time in order to
look after their child.’38 As the leave no longer refers to ‘breastfeeding’, it
can be taken by the father and the mother and thus seems to ‘be accorded
to workers in their capacity as parents of the child. It cannot therefore be
regarded as ensuring the protection of the biological condition of the woman
following pregnancy or the protection of the special relationship between a
36 Case C-1/95, Hellen Gerster/Freistaat Bayern, [1997] ECR I-05253, at para. 38 and Case C-243/95,
Kathleen Hill and Ann Stapleton v. The Revenue Commissioners and Department of Finance, [1997]
ECR I-03739, at para. 42.
37 At stake was Directive 76/207 (now repealed by Directive 2006/54).: Case C-104/09, Pedro
Manuel Roca Álvarez v Sesa Start España ETT SA, [2010] ECR I-8661.
38 At paras. 23-24.
Susanne Burri 271
mother and her child.’39 The regulation at stake is in addition not a positive
action measure. The Court considered that when only a mother who is
employed qualifies for the leave, whereas a father with the same status can
only enjoy this right but not be the holder thereof, this ‘is liable to perpetuate
a traditional distribution of the roles of men and women by keeping men in
a role subsidiary to that of women in relation to the exercise of their parental
duties.’40 The provision at stake is thus contrary to EU sex equality law. The
Court has here clearly chosen for an equal position of women and men in
parenthood, enabling both parents, employed or self-employed, to take this
leave.
As already mentioned in the introduction, a different approach was taken by
the Court in the Spanish Betriu Montull case on a similar regulation.41 The
father was also employed while the mother was self-employed. The father
had only a derived right to leave with an allowance. The leave that Mr Betriu
Montull requested was not granted, because the self-employed mother was
not affiliated to a statutory social security regime. AG Wathelet, taking up
the Court’s reasoning in Roca Álvarez, considered it evident that the measure
at issue established a difference in treatment on grounds of sex as between
employed mothers and employed fathers. He recalled that in Roca Álvarez,
the Court considered comparable the positions of a male and a female
worker, father and mother of a young child, with regard to their possible
need to reduce their daily working time in order to look after their child.42
The Court in Betriu Montull however emphasised that ‘pregnant workers
and workers who have recently given birth or who are breastfeeding are in
an especially vulnerable situation’ that particularly during maternity leave
cannot be compared to that of a man or a woman on sick leave.43 The measure
at stake is justified by the protection of women in relation to pregnancy and
maternity. It is legitimate to protect a woman’s biological condition during
and after pregnancy and to protect the special relationship between a woman
39 At para. 31.
40 At para. 36.
41 See para. 34; Case C-5/12, Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS),
[n.y.p.].
42 At paras. 67-68.
43 At para. 49.
272 Parents who want to reconcile work and care: which equality under EU law?
and her child over the period which follows childbirth.44 The father had
therefore no right to this leave following the maternity leave of the mother.
In the Betriu Montull case, considerations on reconciliation issues are lacking
and the need for the protection of mothers who have recently given birth is
once again emphasized. Such an approach tends to deny rights to fathers
when they are not entitled to specific individual rights and in the author’s
view this certainly does not contribute to a more balanced division of work
and care between men and women.
5. Surrogacy leave
Different approaches to comparability issues, the need to protect women in
relation to pregnancy and maternity and fathers’ rights are also illustrated
by two diverging opinions of AG Kokott and AG Wahl on surrogacy
leave.45 These cases concerned the right to pregnancy and maternity leave
for commissioning mothers. In the case C.D., AG Kokott explored the
personal scope of Directive 92/85. She considered the situation of the
biological mother and the commissioning mother to be different with regard
to pregnancy and birth, but comparable in relation to breastfeeding. In both
situations there are health risks.46 She emphasised the importance of care
by a commissioning mother and took the Hofmann case as a starting point.
She submitted that a commissioning mother should fall under the personal
scope of the Pregnancy Directive, even if she is not breastfeeding, given the
necessary protection of the special relationship between the mother and child.
In her view, precisely because the commissioning mother was not pregnant,
it is a challenge for her to build up a relationship with the child, to include
it in the family and to get used to her role as a mother. She considered this
situation not to be comparable to adoption, where generally speaking the
building up of the relationship with the child does not begin upon the birth
of the child. AG Kokott did not pay any attention to the role of the father in
the case of surrogacy. In her view, the Directive applies to a commissioning
44 At para. 62.
45 Opinion of AG Kokott in case C-167/12 (CD) and the opinion of AG Wahl in Case C-363/12
(Z.), 26 September 2013. See also: Burri 2014a.
46 At para. 44.
Susanne Burri 273
mother who is a worker, and is thus entitled to maternity leave and the
surrogate mother and the commissioning mother should share this leave.
She adopted a broad interpretation of the personal scope of Directive 92/85,
putting emphasis on care by (commissioning) mothers.
AG Wahl followed quite a different approach. In his view, the protection
of the special relationship between mother and child is closely related to
the birth of the child. The scope of the Directive should not be interpreted
as applying to the protection of motherhood, or even parenthood. A
broad interpretation of the personal scope of the Directive would have
the effect that an employed commissioning mother would be entitled to
paid (maternity) leave, but an adoptive mother or the father involved in
a surrogacy arrangement would have no such right.47 The consequence is
that intended mothers have no specific maternity leave rights that could be
based on existing EU law. Clearly the member states can adopt measures on
parental leave in the case of surrogacy arrangements. According to AG Wahl,
there is in this case no sex discrimination. The difference of treatment
occurs between a commissioning mother and a woman who has given birth
or an adoptive mother. A male parent of a child born through surrogacy
would receive the same treatment as a commissioning mother. He finally
considered that the provisions of the Charter can be taken into account for
the interpretation of secondary EU law, but cannot extent the material scope
of Directive 2006/54 or affect the validity of the Directive in this case.48
In both cases the Court followed the approach suggested by AG Wahl on
the interpretation of Article 2 (personal scope) and Article 8 (pregnancy
and maternity leave) of Directive 92/85.49 In the C.D. case, the CJEU
(Grand Chamber) considered that the aim of this Directive in the light of
existing case law (in particular the Hofmann and Betriu Montull cases) is
the protection of the biological condition of the pregnant woman and the
especially vulnerable situation arising from her pregnancy. The protection
of the special relationship of the mother and the child only applies to the
47 At para. 51.
48 Paras. 69-76, at para. 73.
49 Case C-167/12, .D. v S.T., [2014] and Case C-363/12, Z. v A Government department and The
Board of management of a community school, [2014].
274 Parents who want to reconcile work and care: which equality under EU law?
period after the pregnancy and the confinement. The Court thus mentioned
once again the two-fold goal of the pregnancy and maternity leave. Article 8
of the Pregnancy Directive presupposes that the worker entitled to maternity
leave has been pregnant and has given birth. Member states are not required
to provide maternity leave to a female worker who as a commissioning
mother has had a baby through a surrogacy arrangement, even if she may or
does breastfeed the baby following the birth. However, member states might
adopt more favourable provisions. The Court also ruled in C.D. that the
employer’s refusal to grant maternity leave to a commissioning mother does
not constitute discrimination on grounds of sex. The comparison is made
between the surrogate mother who was pregnant and has given birth and the
commissioning mother, both women. There is no indirect discrimination
either; as there is nothing in the file to establish that the refusal to grant leave
puts a female worker at a particular disadvantage compared to a male worker.
In the Z. case, the Court followed a similar reasoning.50 In both cases, neither
of the commissioning parents were entitled to rights derived from EU law.51
6. Assessment
The overview of EU legislation relevant in the field of reconciliation issues
shows that it addresses, in the first place, the health and security of pregnant
workers and leave in relation to pregnancy, maternity and parenthood.
However, there is a declining scale of protection and rights provided in
case of pregnancy and maternity. A strong protection is ensured against
dismissal related to pregnancy and maternity, while rights related to pay and
social benefits during leave are less protected. Rights based on parenthood
are still rather weak. Parental leave is unpaid and social security benefits
during parental leave are principally a matter of national law and agreements
between the social partners. EU research shows that paid parental leave is
one of the main factors that would influence the taking of parental leave by
50 At paras. 51-57. The Court also considered that the inability to have a child does not prevent the
mother from participating fully and effectively in professional life on an equal basis with other
workers.
51 See further Burri forthcoming a.
Susanne Burri 275
who have recently given birth in such a way that fathers who want to care for
their child are denied rights, it sometimes acknowledged the rights of both
parents. It is submitted that emphasizing the protection of women who have
given birth for a rather long period might hamper a more balanced division
of work and care between men and women and might perpetuate gender
stereotypes concerning the traditional roles of women and men in relation
to care for children.
7. Conclusions
EU legislation refers explicitly to the reconciliation of work and family life
and its inclusion in the EU Charter points towards a conceptualisation of
such reconciliation as a fundamental right alongside the principle of equal
treatment. However, the scope of Article 33(2) of the Charter is rather
limited, as it covers only the reconciliation of family and professional life in
relation to maternity, parental and adoption leave. Inspiration can be drawn
from the CJEU case law when it is willing, with a reference to this provision,
to apply a general principle of equal treatment to reconciliation issues where
no specific rights can be derived from EU legislation and when it recognized
the right to parental leave as a fundamental social right (Chatzi, Meerts).
The case law of the CJEU has contributed to protecting women against
pregnancy and maternity discrimination, in particular in the access to
employment and in relation to dismissal. As far as working conditions are
concerned, the case law also offers possibilities to strengthen the position
of workers who want to reconcile work and care. However, the case law is
casuistic, complicated and not always consistent, in particular in relation
to comparability issues. It has been submitted that by emphasizing the
protection of women who have given birth in its case law, the CJEU
sometimes hampers a genuine sharing of care responsibilities between men
and women. The issue of gender stereotypes and the danger of reinforcing
the traditional roles of men and women in relation to work and care are only
addressed explicitly in a few judgements of the CJEU (e.g. Roca Álvarez).
However, EU case law certainly offers indications towards recognising the
need to share care responsibilities between parents which could be further
developed by the Court.
Susanne Burri 277
BIBLIOGRAPHY
Peter Cumper
1. Introduction
Do human rights laws risk undermining religious freedom? For many of a
conservative faith disposition the answer to this question is likely to be in
the affirmative. After all, in recent years, some of Europe’s most high-profile
religious leaders – including Pope Emeritus Benedict XVI1 and a former
Archbishop of Canterbury (Lord Carey)2 – have claimed that human rights
(and equality) laws pose a threat to religious freedom. Such claims may be
of questionable legal validity, but they nonetheless appear to strike a chord
with a significant number of (mainly conservative) faith communities today
in parts of Europe, leading some people of faith to question the efficacy of
human rights legislation.
This chapter aims to cast some light on the often controversial relationship
between the principle of freedom of religion and human rights norms such as
equality and non-discrimination. The chapter starts by identifying a number
of the ‘benefits’ of human rights instruments for faith groups, but its primary
focus is on an issue contemporary relevance – the fear of some religious
leaders that the rights of believers (and the autonomy of faith groups) may be
eroded by the state affording equal rights to lesbian/gay/bisexual/transgender
(LGBT) communities at the workplace.
Few challenges currently facing law and policy makers are more onerous
than that of having to reassure faith groups that human rights laws will not
erode religious freedom, while also guaranteeing that LGBT rights will be
neither undermined nor jeopardized. In seeking to consider the nature of
this challenge in a workplace context, detailed reference will be made to a
3 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10).
4 See Bruce 2002.
5 See Tomka 2011.
6 Gerhards 2010.
7 Štulhofer and Rimac 2009, at p. 24. See also Uitz 2012.
8 For example, according to a survey that was conducted across Britain, France, West Germany, Italy
and the Netherlands in 2006, only 22% of people said that homosexuality could never be justified.
See Inglehart 2008, at p. 144.
Peter Cumper 285
discussed here are of particular relevance for many other Western European
nations, and that the subject-matter therein will, in all likelihood, be of
increasing importance for the rest of the continent.
The structure of the chapter is as follows. First, it will consider whether
human rights laws are generally regarded in positive or negative terms (ie.,
as ‘friend or ‘foe’) by religious organisations. Secondly, it will explore how
a desire on the part of some conservative religious groups to differentiate
between people on the grounds of their sexual orientation has often made
such groups wary of human rights laws. Thirdly, it will examine – with
reference to the case of Ladele – whether employers should make provision
for the reasonable accommodation of religious belief at the workplace if such
accommodation might undermine the dignity of LBGT employees. It will
pay particular attention to the scenario (as in Ladele) where an employee,
already in post, is required to comply with a new workplace policy that they
object to on religious grounds. Finally, in the conclusion, it will be suggested
that notwithstanding recent controversies in which some people of faith
have objected to the interpretation of human rights documents vis-a-vie the
recognition of LGBT rights, it is important not to lose sight of the areas of
common ground that are shared by religious and LGBT groups.
9 See for example, the Preamble to the 2008 Faith in Human Rights Statement, where the leaders of
various world religions pledged their ‘support [for] the human rights and fundamental freedoms
of every human person, alone or in community with others’, available at: www.oikoumene.org/en/
folder/documents-pdf/faith_human_rights.pdf.
286 Freedom of religion and human rights laws – awkward bedfellows
10 On the claim that human tights norms have been heavily influenced by religious beliefs see Kiper
2012.
11 See Evans 2001, at p. 39.
12 See for example, ECtHR, Kokkinakis v Greece, 25 May 1993 (Appl.no. 14307/88).
13 ‘Everyone has the right to freedom of thought, conscience and religion; the right includes the
freedom to change his religion or belief, and freedom, either alone or in community with others
and in public and private, to manifest his religion or belief, in worship, teaching, practice and
observance.’ ECHR, Article 9(1).
‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of
others.’ ECHR, Article 9(2).
14 ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.’ ECHR, Article 14.
15 See for example, ECtHR, Masaev v Moldova, 12 May 2009 (Appl.no. 6303/05).
16 See for example, ECtHR, Barankevich v Russia, 26 July 2007 (Appl.no. 10519/03).
17 See for example, ECtHR, Jehovah’s Witnesses of Moscow and others v. Russia, 10 June 2010 (Appl.no.
302/02).
18 See for example, ECtHR, Thlimmenos v Greece, 6 April 2000 (Appl.no. 34369/97).
19 See for example, ECtHR, Ivanova v Bulgaria, 12 April 2007 (Appl.no. 52435/99).
20 See for example, ECtHR, 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others
v Georgia, 3 May 2007 (Appl.no. 71156/01).
21 ECtHR, Hasan and Chaush v Bulgaria, 26 October 2000 (Appl.no. 30985/96).
Peter Cumper 287
22 See for example, ECtHR, Darby v Sweden, 23 October 1990 (Appl.no. 11581/85).
23 See Twigg 2012.
24 See Bonthrone 2000.
25 Such an issue has been the display of crucifixes in the classrooms of Italian state schools. It was
ultimately resolved to the satisfaction of the Catholic Church by the Grand Chamber of the
ECtHR in, ECtHR, Lautsi and Others v Italy, 18 March 2011 (Appl.no. 30814/06). On the
controversy generally see Annicchino 2011.
26 For example, blasphemy laws in some nations (eg., the UK) have been repealed primarily on the
basis that they contravene the principle of freedom of expression. See, generally, Sanberg and Doe
2008.
288 Freedom of religion and human rights laws – awkward bedfellows
refused to agree. Having exhausted domestic remedies, Ladele took her case
to the ECtHR.
Ladele’s main submission was that the failure of her employer to accommodate
her religious beliefs constituted a violation of Articles 14 and Article 9 of the
ECHR. In this regard she claimed that not to exempt someone with her
religious beliefs from a policy such as the one operated by her employer
– which prohibited discrimination against others on the grounds of sexual
orientation (‘Dignity for All’) – meant that she risked being treated differently
from those who did not share her faith or had beliefs that were notably
different from her own. In other words, Ladele’s contention was that, in the
absence of a duty to accommodate her religious beliefs, the Council’s policy
of outlawing discrimination against people from LGBT communities was,
ironically, itself discriminatory. Accordingly, Ladele argued that, as a result
of the non-accommodation of her Christian beliefs, she had been a victim of
religious discrimination.
The ECtHR was, however, not persuaded by Ladele’s argument. In
rejecting this application the Court ruled that the state had a wide margin
of appreciation in seeking to take account of Ladele’s right to manifest her
beliefs at work, particularly given the duty on employers to protect the rights
of others.34 Accordingly, on the facts of the case, the Court held that the right
balance had been struck because of the Council’s clear policy to promote
equal opportunities, and the related ban on employees from acting in ways
that might discriminate against others (eg., their LGBT co-workers).35 But
how should one respond to the ECtHR’s ruling? In this regard there are at
least three different responses. These are that the ECtHR:
(i) should be criticised for not having taken Ladele’s beliefs sufficiently
seriously, in that it failed to view the case through the prism of freedom
of conscience;
34 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10), at para. 105.
35 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10), at paras. 106 and 109.
Peter Cumper 291
36 Judges Vučinić and De Gaetano, Joint Partly Dissenting Opinion, ECtHR, Eweida and others v
UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10 and 36516/10), at para.2.
37 As is pointed out by Sapir and Statman 2005, at p. 474: ‘coercing people to act against their
deepest normative beliefs presents a severe threat to their integrity and makes them experience
strong feelings of self-alienation and loss of identity [and that this] should be avoided as far as
possible’.
38 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10), at para. 72.
292 Freedom of religion and human rights laws – awkward bedfellows
grounds.45 And a third difference relates to the negative message that would
be sent to the members of LGBT communities if special accommodation
were to be made for registrars who refuse to conduct same-sex ceremonies –
whereas, in the case of medical conscience clauses, it is difficult to deduce any
implied criticism or negativity towards those who wish to avail themselves of
abortion (or related) services.46
The difficulties of making a persuasive argument that Lillian Ladele should
be regarded as being the moral equivalent of a medical practitioner who
wishes to avail him/herself of a conscience clause, should not perhaps
disguise the fact that her case – at least to some degree – raises potentially
important issues of conscience. Yet, in this regard, it is noticeable that neither
the majority nor the dissenting judges in the Strasbourg Court adequately
examined the question of religious conscience. Whereas the majority largely
ignored such issues, a number of controversial remarks by Judges Vučinić
and De Gaetano – including references to ‘the Spanish Inquisition’ and
the ‘Nazi firing squad’,47 alongside other injudicious comments48 – have
detracted from what they had to say about freedom of conscience. Thus, it is
perhaps regrettable that the opportunity was missed by the Strasbourg Court
to offer some (arguably much needed) guidance on freedom of conscience
at the workplace.
45 See for example, ECtHR, Pichon and Sajous v. France, 2 October 2001(App.no. 49853/99) where
the European Court of Human Rights rejected an application from pharmacists who refused to sell
contraceptives because of their religious beliefs.
46 This point was emphasized recently by a Scottish judge who, in explaining the rationale for the
conscience clause in British law, observed that abortion ‘is a matter in which many people have
strong moral and religious convictions, and the right of conscientious objection is given out of
respect for those convictions and not for any other reason’: Lady Dorrian in Doogan and Anor v
NHS Greater Glasgow & Clyde Health Board [2013] Scot CS CSIH 36, at para. 38.
47 Judges Vučinič and De Gaetano, ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos.
48420/10, 59842/10, 51671/10 and 36516/10), at para. 3.
48 For example, Judges Vučinić and De Gaetano suggested that Ladele’s dismissal had been attributable
to ‘a combination of back-stabbing by her colleagues and the blinkered political correctness of
the Borough of Islington (which clearly favoured ‘gay rights’ over fundamental human rights)
eventually led to her dismissal’. ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos.
48420/10, 59842/10, 51671/10 and 36516/10), at para. 5.
294 Freedom of religion and human rights laws – awkward bedfellows
55 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10), at para. 106.
56 For example, on the argument that religion is special because of the unique role it plays in the life
and identity of the believer see Witte 2006, at p. 102.
57 See Leiter 2012, at pp. 92-133.
58 See Gutmann 2004. Similarly, Sapir and Statman comment: ‘[W]hether we understand freedom
of religion as a branch of freedom of conscience or as a branch of the right to culture, there is
no justification for granting it special status within the framework of these rights’ in Sapir and
Statman 2005, at p. 487.
59 See Garvey 1996, at p. 54.
60 Paulsen 1997, at p. 1622.
61 Rawls 1996, at p. 226.
296 Freedom of religion and human rights laws – awkward bedfellows
alone’.62 Thus, given the nebulous, and highly emotive nature of these extra-
temporal factors, it is understandable that the ECtHR touched on them in
only the briefest of terms. Similarly, the European Court’s unwillingness to
afford religious belief any special treatment is entirely consistent with the
view of those who maintain ‘that there is no principled reason [why] matters
of conscience should be treated differently from matters of religious belief
and practice’.63 Accordingly, it could be argued that the Court’s approach
in Ladele is based on sound practical and theoretical reasons. Yet, be that
as it may, such considerations are unlikely to offer solace to the religious
employee who believes that the law is oblivious to the very transcendental
factors that underpin (as in Ladele) his/her refusal to perform certain work-
related duties.
then, given the rather ‘exceptional’ nature of the facts of Ladele (ie., she
was already in post) this is probably it. Ladele is an atypical case, not just
because the overwhelming majority of registrars in the UK evidently have
no problem with registering couples at same-sex ceremonies but because,
in relation to the facts of her particular case, Ladele was already working as
a registrar when her employer changed its policy and required all registrars
to conduct civil partnership ceremonies. This fact has already been noted
by legal commentators, prompting one to describe Ladele as the ‘real loser’
in the case.64 Yet moral sympathy aside, the unusual nature of the case is
surely a relevant criterion that should be taken into account in relation to
the reasonable accommodation debate. For example, it is a factor that may
help to assuage the concerns of those who fear that affording any reasonable
accommodation of an employee’s religion/ beliefs might have broad-
ranging implications for the employment sector (‘floodgate fears’).65 What
is more, even if the ECtHR had made such an ‘exception’ for registrars in
Ladele’s position – ie., those in post before the enactment of the legislation
introducing civil-partnerships – its impact would have been minimal. After
all, those to whom such ‘exceptions’ might have been granted would, in
the fullness of time (following retirement/death), have come be replaced by
registrars who, by virtue of their knowledge of the job, could not reasonably
object to officiating at ceremonies involving same-sex couples.
This argument is unlikely to cut much ice with those who are opposed to
reasonable accommodation in principle, or are concerned that ‘individual
accommodations [may] leave unchallenged and unaffected underlying
discriminatory policies and practices’.66 Yet, that said, the case for taking
account of Ladele’s religious beliefs is strengthened by the fact that various
arguments have been adduced in support of reasonable accommodation
in recent years. These include the claims that reasonable accommodation
is potentially a ‘promising concept’,67 which might facilitate the ‘inclusion
of religious minorities’,68 be of assistance when examining issues of
5. Conclusion
This chapter has focused on an issue of real concern for a significant number
of people in conservative faith communities – the fear that LGBT rights
are afforded protection at the expense of religious freedom. The attendant
debate has often been acrimonious, with the language of ‘human rights’
used by the various parties in what is often seen as an intractable conflict.
Furthermore, in a veiled criticism of the most reactionary elements in both
sides of this debate the UN Special Rapporteur on Freedom of Religion or
Belief, Heiner Bielefeldt, has recently spoken of a ‘worrisome trend’ whereby
freedom of religion or belief is regarded [by some] as ‘a mere obstacle en route
to a society free from discrimination’, whilst also warning that ‘freedom of
religion or belief cannot legitimately be turned into an ideological weapon
against LGBTI rights.71
Bielefeldt’s warning is salutary, but there is another consideration to bear in
mind which is frequently overlooked, and it concerns the common ground
between people of faith and LGBT communities. All too often cases such
as Ladele lead to erroneous assumptions that freedom of religion and LGBT
rights are mutually incompatible. Admittedly, the history of faith-LGBT
relations has often been difficult, but it is unwise to over-state the differences
between people in religious and LGBT communities. After all, the days when
religious belief was (publicly at least) associated uniquely with a heterosexual
69 See Gibson 2013, who has argued that consideration be given to the Canadian model of reasonable
accommodation, on the basis that it offers a more nuanced and instructive approach in relation to
proportionality.
70 For example, on recent calls for the recognition ‘of legally enshrined reasonable accommodation on
the basis of religion and belief in the workplace’ see Foblets and Alidadi 2013, at p. 11.
71 Bielefeldt 2013, at p. 65.
Peter Cumper 299
lifestyle have passed, and today the case for LGBT equality on ‘religious’
grounds is powerfully made.72 In addition, in parts of Europe, people from
religious traditions seen traditionally as being hostile to LGBT rights, now
(increasingly often) display more positive and inclusive attitudes.73 And
finally, the vast majority of faith and LGBT groups share a commitment to
certain values, such as ‘dignity’,74 ‘compassion’,75 and ‘empathy’.76 Of course,
many challenges lie ahead, and cases such as Ladele raise difficult issues that
law and policy makers in Europe have yet to fully resolve. However, by the
same token, it should not be forgotten that ‘freedom of religion’ and ‘human
rights laws’ are ‘bed-fellows’ – albeit sometimes awkward ones.
BIBLIOGRAPHY
Alidadi, K., ‘Reasonable accommodations for religion and belief: Adding value
to Art. 9 ECHR and the European Union’s anti-discrimination approach to
employment?’, European Law Review, Vol. 37, No. 6, 2012, pp. 693-715.
Annicchino, P.,‘Winning the battle by losing the war: the Lautsi case and the Holy
Alliance between American Conservative Evangelicals, the Russian Orthodox
Church and the Vatican to reshape European identity’, Religion and Human
Rights, Vol. 6, No. 3, 2011, pp. 213-219.
Bielefeldt, H., ‘Misperceptions of Freedom of Religion or Belief ’, Human Rights
Quarterly, Vol. 35, 2013, pp. 34-68.
Bonthrone, P.J., ‘Bishop fears Church will be exiled’, The Daily Telegraph,
30 September 2000, available at: www.telegraph.co.uk/news/uknews/1357378/
Bishop-fears-Church-will-be-exiled.html.
Bribosia, E., Ringelheim, J. and Rorive, I., ‘Reasonable Accommodation for
Religious Minorities: A Promising Concept for European Antidiscrimination
Law’, Maastricht Journal of European and Comparative Law, Vol. 17, No. 2,
2010, pp. 137-161.
Bruce, S., God is dead: Secularization in the West, Blackwell Publishing, Oxford,
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Butt, R., ‘Your equality laws are unjust, pope tells UK before visit’, The Guardian,
2 February 2010, available at: www.theguardian.com/world/2010/feb/02/
equality-laws-unjust-pope-uk.
Clements, B., ‘Religious Attitudes Towards Gay Rights in 2013’, British Religion
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attitudes-towards-gay-rights-in-2013/.
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Vol. 21, No. 2, 2008, pp. 279-319.
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New Jersey, 2006.
Ellis, A., ‘What is Special about Religion?’, Law and Philosophy, Vol. 25, 2006,
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Evans, C., Freedom of Religion under the European Convention on Human Rights,
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Peter Cumper 301
Foblets, M.C. and Alidadi, K. (eds.), ‘Summary report on the RELIGARE Project’,
2013, available at: www.religareproject.eu/?q=system/files/RELIGARE%20
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302 Freedom of religion and human rights laws – awkward bedfellows
1. Introduction
On August 30, 2013, the Dutch State Secretary for Security and Justice,
Fred Teeven (representing the conservative-liberal VVD (the People’s Party
for Freedom and Democracy)), submitted a Bill to amend the Dutch
Nationality Act (DNA).2 The aim of this Bill is to allow the withdrawal and
automatic loss of Dutch nationality for people who participate in a terrorist
organisation or who undertake activities to prepare a terrorist crime. The
loss of Dutch nationality is only possible if it does not result in statelessness:
thus, the Bill only affects those who possess dual or multiple nationality.3
In this contribution, we first take a closer look at the content of the Bill.
Secondly, we will put it in a historical perspective. The government has
argued that the loss of nationality in cases of foreign military service has
always been central in Dutch nationality law. However, our historical
overview reflects a more complicated and nuanced picture. Thirdly, we will
address some issues related to equal treatment. In the past, the loss of Dutch
1 The title of this contribution refers to the ‘born-here selfies with a Dutch passport’ posted by the
actor Nasrdin Dchar and the comedian/performer Najib Amhali, as a reaction to the provocative
speech that the politician Geert Wilders delivered on the evening of the election in 2014 in which
he led a crowd of PVV (Party for Freedom) voters in chanting ‘fewer, fewer, fewer’ (Moroccans).
The selfies were quickly followed by many other born-here selfies by Moroccan Dutch people
holding their Dutch passports. On 18 December 2014 the Public Prosecution Service announced
that it intends to instigate proceedings against Wilders for inciting racial hatred.
2 The text of the Bill and the Explanatory Memorandum is available at: www.rijksoverheid.nl/
documenten-en-publicaties/kamerstukken/2013/08/30/wijziging-rijkswet-op-het-nederlander
schap.html. It cannot be found at the Official Documents site for legislation and parliamentary
documents: overheid.nl.
3 In this contribution we will use the term dual nationality also for situations of multiple nationality.
306 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
nationality due to, for example, foreign military service often resulted in
statelessness, as those in question had no other nationality. At the time,
there was not, as yet, any international convention obliging states to prevent
statelessness.4 Consequently, the loss or withdrawal of nationality now only
applies to those who have dual nationality. As we will argue, the Bill would
create some new problems and it raises new questions such as: does the Bill
violate the prohibition of discrimination? Those with dual nationality – one
of which is Dutch nationality – and those with only Dutch nationality are
treated differently. Finally, we will discuss three other legal issues: the loss of
Dutch nationality by minors, proof of a second nationality and the residence
status of those who have lost their Dutch nationality.
2. The 2013 bill on the automatic loss of Dutch nationality for jihadists
The Bill was an extremely quick response to a parliamentary motion by
the conservative-liberal (VVD) MP Klaas Dijkhoff which was a reaction to
Dutch jihadists fighting ‘against freedom and democracy’ contrary to Dutch
values, as the motion puts it.5
Contrary to the 2010 Act (see below, section 3), in the 2013 Bill the loss of
Dutch nationality is automatic. According to the explanatory memorandum
accompanying the Bill, there has to be an irrevocable conviction for
participation in a terrorist organization or aiding in (the preparation of ) a
terrorist crime (Articles 140a and 134a Criminal Code). The rather short,
three-page clarification for the bill very briefly sets out the reasons for the
amendment, explaining that there are reasons to reconsider the views on the
loss of Dutch nationality in cases of involvement in paramilitary or terrorist
organizations, because of ‘changing social opinions’. It is not explained what
these social opinions are and how they have changed. In fact, the reference to
changing ‘social opinions’ about terrorism is the only justification provided
for the proposed amendment. The explanatory memorandum also stresses
the need for strict requirements of proof of participation in a terrorist
organization, because of the far-reaching consequences of a loss of Dutch
4 The United Nations Convention on the Prevention of Statelessness was drafted in 1961 (Tractatenblad
1957,124) and ratified by the Netherlands in 1984 (Staatsblad 19 December 1984, 627).
5 Second Chamber, 2012-2013, 29 754, no. 224.
Betty de Hart and Ashley Terlouw 307
3. Historical overview
As stated above, in the explanatory memorandum accompanying the Bill,
the government argued that the loss of Dutch nationality in the case of
foreign military service has always been part of Dutch nationality law. We
submit that this is only partly correct.
to serve in a foreign army, did not ask permission beforehand.9 Men with
dual nationality had the possibility, due to international conventions, to
choose in which of their countries of nationality they wanted to carry out
their military service.10 In this contribution, we will only look at the mass
loss of Dutch nationality.
An interesting case in the context of this contribution is that of the
approximately 3,000 Dutchmen who fought for the Pope (the Zouaaf
soldiers) in 1860, after being recruited by Catholic priests. Upon their return
to the Netherlands, they were declared to be stateless persons, as were their
children born after 1892.11 It took until 1947 before the Minister of Justice
determined that those who had served before they had reached the age of
majority had not lost their Dutch nationality. This applied to most of the
men involved, but by 1947 all of the Zouaaf soldiers had already died.12
A loss of nationality did not occur when a Dutch national was obliged to
serve in a foreign army, as this was not on a voluntary basis. This concerned,
for example, Dutchmen in the United States during the First World War.
Article 7 section 4 DNA 1892 resulted in the automatic loss of nationality for
several hundred men who had fought in the Spanish Civil War (1936‑1939)
against Franco’s nationalist army. The Dutch government tried to prevent
recruitment for this war, for example by stamping Dutch passports with
‘not valid for Spain’. Around 600 Dutchmen fighting against Franco became
stateless. As a result of the gender inequality that was central to Dutch
9 Occasionally, the Dutch government gave permission in individual cases. During the nineteenth
and early twentieth century especially the sons of the nobility served with permission in foreign
armies, e.g. the Hon. J.M. Teixiera de Mattos, who served in a Prussian regiment from 1913 to
1918. Regularly, the Dutch government gave permission in individual cases. Kramers 1996.
10 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations
in Cases of Multiple Nationality, Strasbourg, 6.V.1963, arts 5 and 6. European Convention on
Nationality, Article 21.
11 Until 1892, the Netherlands recognised ius soli, meaning that children born of foreign parents
automatically became Dutch nationals upon their birth on Dutch territory. Hence, before 1892,
a loss of nationality by the father did not affect the child. After 1892, ius sanguinis a patre was
introduced, making the nationality of a child dependent on the father.
12 Kramers 1996.
Betty de Hart and Ashley Terlouw 309
nationality law, the loss of nationality for men also affected their wives and
children, who automatically also lost their Dutch nationality.13
During the Second World War several thousand men who served in the
German army, but also those who fought with the Allied Forces (British,
Canadian, American) against the Nazis, should have lost their Dutch
nationality according to the DNA 1892. However, in 1944 the Dutch
government in exile in London decided that all Dutchmen who had served
with the Allies after 9 May 1940 retained their Dutch nationality.14
After the Second World War, the question was what to do with those who
had not served with the Allies after 9 May 1940, but with the Axis Forces. In
1951, a government Bill aimed to automatically reinstate Dutch nationality,
and without individual scrutiny, on those who had served in the German
army as well as those who had fought against Franco in the Spanish Civil
War. This Bill met with opposition from both the Second Chamber and
society at large, as the wounds of the War were still too fresh. An amendment
aimed at making individual naturalisation requests compulsory was adopted.
This Act of April 1, 1953, reinstated Dutch nationality on 11,000 persons
upon individual naturalisation requests, until this was withdrawn in 1977.
Only a small number of requests were rejected.15
As for the former Spanish combatants (oud-Spanjestrijders), mainly
communists, some of them had also fought against the Nazis in the Second
World War and they consequently regained their Dutch nationality. But
most of them were still stateless at the end of the Second World War.
Because of the communists’ contribution to resistance against the German
occupation, the Social Democrats in the government wanted to reinstate
their Dutch nationality unconditionally and automatically, but the Catholic
Party (KVP) preferred individual naturalisation. As the discussion dragged
on and the international political situation changed (the communist
takeover in Czechoslovakia in 1948 and the Dutch Communist Party that
13 This was the case until 1936, when women whose husband became stateless during the marriage
no longer lost their Dutch nationality with him. However, if a woman married a man who was
already stateless, she also became stateless. de Hart 2006.
14 Decree of 4 October 1944, Staatsblad 1944, no. E 127.
15 See further Heijs 1995, at p. 114.
310 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
16 de Groot 2008.
17 Rijkswet op het Nederlanderschap, explanatory memorandum, Second Chamber 1981, 16947
(R 1181), nos. 3-4, p. 4.
Betty de Hart and Ashley Terlouw 311
not (depending on their gender or age), as well as unequal treatment for dual
nationals.18
The discussion emerged again during the war in the former Yugoslavia, when
it turned out that several Dutchmen had fought in this war as mercenaries in
the Croatian army. This time, however, it led to an amendment to the law,
after a motion by certain Members of Parliament (from D66 (the Democrats
66 party) and the VVD) was accepted.19 It was argued that these combatants
did not ‘feel’ Dutch, rather than that they did not fulfil their obligations
as a Dutch citizen or constituted a danger to Dutch society.20 An explicit
choice was made, however, not to include participation in paramilitary or
guerrilla groups.21 According to Article 15 section 1 sub. e DNA 2000, still
in force today, an automatic loss of Dutch nationality may only occur if the
person voluntarily serving in a foreign army is involved in combat operations
against the Netherlands or allies of the Netherlands, and only if it does not
result in statelessness.
for the withdrawal of Dutch nationality when a person had damaged ‘vital
interests of the Dutch state’ including cases of terrorism. Such a withdrawal
would only be possible if the person involved had a second nationality in
order to prevent statelessness. According to the government this stipulation
was allowed by Article 7 section 1 sub. d of the European Convention on
Nationality (ECN) of 1997, and the UN Convention on the Prevention of
Statelessness of 1961 (Article 8 par. 3 a ii). The withdrawal of nationality
would be allowed both in the case of the enactment and the preparation of
these acts.22
The Second Chamber resisted the inclusion of criminal acts that could be a
reason to withdraw nationality by means of an Order in Council (algemene
maatregel van bestuur, AMvB) and not by means of a formal act, fearing that
the number of criminal acts that could potentially result in a withdrawal
could be too easily extended and this would therefore violate the principle
of legal certainty.
After a change of government in 2007, this part of the Bill was amended and
a limited number of criminal acts was included in the Dutch Nationality
Act. The list of criminal acts included not only terrorist acts, but also
other criminal acts that violate state interests. In all cases, there had to be
an irrevocable conviction and a threat to public order. The criminal acts in
question were those mentioned in Title I to IV Second Book of the Dutch
Criminal Code, (Articles 92-130a), that include acts against the safety of
the state, against the King, against the heads of befriended states, terrorist
acts and recruitment for foreign armies; all the acts mentioned are acts of
violence. In response to objections by the Second Chamber, the government
limited the list of criminal acts to those where a prison could be sentenced to
eight years imprisonment or more.
Both the Second Chamber and the Dutch Senate doubted its effectiveness,
thereby questioning whether the person who had lost his or her Dutch
nationality could actually be expelled, as they considered it unlikely that
the country of the other nationality would welcome the terrorist with open
arms. However, the issue of the residence status in immigration law of those
who saw their nationality revoked was not raised.
One of the major issues in the political debates was that of equal treatment. A
withdrawal of nationality would be made possible both for naturalized Dutch
nationals and for persons born with Dutch nationality. The Social Democrats
questioned the withdrawal of nationality from those Dutch nationals born
with Dutch nationality. In their view, this concerned persons who are on
all accounts effectively Dutch, with hardly any links to the country of their
other nationality. The government however argued that the withdrawal of
Dutch nationality from both groups of Dutch nationals is an expression of
equal treatment. Whether someone possesses another nationality voluntarily
– by choice – or not was not considered relevant because: ‘In cases where
the government decides to withdraw nationality, the irrevocably convicted
person has demonstrated that he has renounced his bond with the Kingdom
and has taken the risk of losing his Dutch nationality into account.’23
In response to questions about the differential treatment of single and dual
nationals, the government argued that the difference was justified by the
interests of the prevention of statelessness, as required by the European
Convention on Nationality (Art. 7 section 3) and the UN Convention
for the Reduction of Statelessness (Article 8 par. 3 a ii). The question is
whether this is a sufficient justification for the difference in treatment, as
this argument makes clear why persons with only Dutch nationality cannot
lose Dutch nationality, but not why persons with dual nationality should.
Especially in cases where people cannot give up their second nationality, it
is not their behaviour, but the arbitrariness of foreign nationality law that
determines whether or not someone loses Dutch nationality. We will return
to this issue below.
To our knowledge, the introduction of the possibility to withdraw Dutch
nationality allowed in the DNA in 2010 has so far not been used. In the one
case where it might have been used – in the case of the murderer of Theo
van Gogh – this did not happen, because a withdrawal is not allowed for
terrorist acts committed before the coming into force of the Act of 2010,
and Mohammed Bouyeri (the person responsible for van Gogh’s murder)
had committed his crime several years before.
There are several lessons to be learned from this historical overview. First, it
turned out that the automatic loss of Dutch nationality for large numbers
of people was subsequently overturned, because the Dutch authorities had
to accept that the people concerned were part of Dutch society, regardless
of what they had done. Second, it has become clear that concerns about
Dutch nationals fighting in foreign countries were always very specific to the
historical context. Opinions about what they had done and how to respond
(exclusion from or inclusion in society) changed over time, even in the case
of Dutch nationals who fought for the Nazis. This was a second reason why
Dutch nationality was restored, although the government decision to restore
Dutch nationality was sometimes made years or even decades later.
Third, even if the loss of nationality does not result in statelessness, this does
not mean that the consequences of the loss of nationality are not questionable,
as the debates on the amendment of 2010 concerning discrimination and
equal treatment make clear. It is to the issue of equal treatment that we now
turn.
4. Equal treatment
If the new Bill would be enacted, the following situation could occur. Two
friends decide to become jihadists and travel to Syria. Both of them were
born in the Netherlands. One of them has a Moroccan grandfather and thus
both Dutch and Moroccan nationality, without the possibility to renounce
the latter.24 The other one has single Dutch nationality as his parents and
grandparents only have Dutch nationality. According to the Bill the first one
would face the loss of his Dutch nationality, while his friend with whom he
24 A child acquires Moroccan nationality at birth if one of the parents is Moroccan (Art. 6 Moroccan
Nationality Law), also if the child is born abroad. There is no limitation to passing on Moroccan
nationality to following generations. The same holds true for Dutch nationality, which can be
passed on to children born abroad without restriction. The difference is that Moroccan nationality
cannot be renounced, while Dutch nationality can.
Betty de Hart and Ashley Terlouw 315
left would not be affected and would retain his Dutch nationality.25 This raises
the question whether the Bill violates the principle of non-discrimination.
To answer this question, we will address four sub-questions:
• Are people with single and with dual or multiple nationalities equal cases?
• What is the ground of discrimination?
• What is the legal basis for the prohibition of this discrimination?
• Is there a justification for the differential treatment of participants in
terrorist organisations with single and dual or multiple nationalities?
25 Raad voor de Rechtspraak (Council for the Judiciary) delivered its advice on the bill on 30 October
2013: ‘This advice points at the possible disproportional and/or unfair consequences of the Bill
due to unequal treatment in punishment: an insignificant participation in a terrorist organization,
for example fund-raising, may lead to much more severe punishment than a terrorist attack if
the first act is committed by someone with dual nationality while the other act is committed by
someone with only Dutch nationality’, available at: www.rechtspraak.nl/Organisatie/Raad-Voor-
De-Rechtspraak/Wetgevingsadvisering/Pages/Wetgevingsadvies-2013.aspx.
26 This could be derived by analogy from Art. 5(2) and Art. 17 ECN as both articles state that no
distinction should be made between nationality by birth or subsequently acquired. Compare van
den Brink and Terlouw 2007. These authors conclude that people who have Dutch nationality
are equal cases under Art. 1 of the Dutch Constitution regardless of whether they also have other
nationalities. Also compare Holtmaat 2007.
316 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
security from returning to or remaining part of Dutch society. This aim does
not require a differentiation between jihadists with single and those with
dual nationality. Possibly a relevant difference could be that a ‘jihadist’ with
single Dutch nationality is more likely to return to the Netherlands than a
‘jihadist’ who has dual nationality and therefore also another country to go
to. However, such a claim must be substantiated, which the drafters of the
Bill did not do, or even argued.
The British scholar Prabhat, writing on the deprivation of nationality in
the case of terrorism in the British context, raised the question whether
dual nationals have proven to be a greater threat to national security
than single nationality holders.27 She suggests that as no difference in the
threat to national security has so far been established, dual nationals are
targeted merely because they can be targeted without violating international
obligations to prevent statelessness.
The burden of proof that – in this specific context and in these specific
cases – the extra nationality is of such relevance that the cases cannot be
regarded as equal rests on the party that contends that there is a relevant
difference, in this case: the State. The only difference mentioned in the
explanatory memorandum accompanying the Bill is that Article 7 of the
European Convention on Nationality and Article 8 of the UN Convention
for the Reduction of Statelessness prohibit the deprivation of nationality if
this results in statelessness. However, the mere fact that the consequences for
single and dual nationals will not be the same does not make them unequal
cases. Compare, for example, the situation of a dismissal from employment
due to an internal reorganisation. Employers are legally prevented from
dismissing only those employees who have a partner who can provide for
them. The conclusion is that as long as the Dutch Minister of Security and
Justice offers no more convincing arguments as to why dual and single
nationals are different and why this difference is relevant with regard to the
aim of the Bill, one must assume that the cases are equal. And equal cases
must be treated equally.
28 Whether direct or indirect discrimination is at stake is important for the justification test required,
at least according to the CJEU and the NIHR (we deal with this justification test under the fourth
question).
318 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
of race.29 The Court of Justice of the European Union (CJEU) has determined
in the case of Vasiliki Nikoloudi that if a provision (for part-time workers)
exclusively affects a protected group (in that case women, because all part-time
workers were women) this constituted direct discrimination.30 This means
that it can be argued that as the Bill exclusively affects Dutch people who also
have another, non-Dutch nationality, this constitutes direct discrimination on
the ground of race.
It could also be argued that it is not race but national origin which is
the discrimination ground at stake. National origin is not the same as
nationality; it resembles ethnic origin. Discrimination on the ground of
national or ethnic origin occurs, for example, when people who are Dutch
but originally had another nationality, or national minorities within a country
(such as the Kurds in Turkey), are treated differently because of that different
background. The essence of the prohibition of discrimination on the ground
of national origin is that somebody’s origin (for example, related to his parents
or grandparents) cannot be a legitimate reason for differential treatment. It
is clear that people with dual nationality are more likely to have a (partly)
non-Dutch national origin than people with single Dutch nationality. After
all, whether or not people have dual or multiple nationalities often depends
on where they are born and who their parents or grandparents are. Besides,
it depends on whether the laws of the country of their other nationality
make it possible to renounce the other nationality. Statistics show that dual
nationality is in most cases acquired automatically at birth.31 It concerns
mainly children of mixed parentage or of parents who have dual nationality.
This means that dual nationality is often not a free choice for the persons
concerned. The Bill therefore indirectly discriminates against people due to
their national or ethnic origin.
29 Most recently, NIHR, 27 February 2014, 2014-21. See also ECT 2007-152 with annotation by
Davidovič 2008, at p. 353. And see ECT 24 February 2011, 2011-27 for an explanation of the
concept of national origin.
30 Case C/196-02, Vasiliki Nikoloudi v. Organismos Tilepikoinonion Ellados AE, [2005] ECR I-01789.
31 In 2011, there were 1,195,090 dual citizens in the Netherlands. In the period 1996-2010, about
one third of these dual nationalities were acquired at birth. Source: CBS statistics, De Hart 2012,
at p. 93.
Betty de Hart and Ashley Terlouw 319
De Groot refers to this situation as holding their genealogy and the nationality
laws of the countries of origin of their parents against them.32 De Groot
suggests in his comment on the 2010 Act, which introduces the withdrawal of
Dutch nationality in the case of terrorism, that the deprivation of nationality
should not be allowed in the case of dual nationals who were born and bred
in the Netherlands. We disagree with De Groot, as this would create another
inequality, in particular between different categories of Dutch citizens. This
is prohibited by Article 5(2) ECN, which reads: ‘Each State Party shall be
guided by the principle of non-discrimination between its nationals, whether
they are nationals by birth or have acquired its nationality subsequently.’
Furthermore, one should not lose sight of the fact that even if people have
acquired Dutch nationality by naturalisation, Dutch nationality may very
well be their effective nationality.33
4.3. The legal basis for the prohibition of (indirect) discrimination based on
nationality and national or ethnic origin
Neither the equal treatment principles contained in Article 14 of the European
Convention on Human Rights (ECHR) and Article 1 of Protocol XII to the
ECHR, nor Article 26 of the International Covenant on Civil and Political
Rights (ICCPR), nor Article 1 of the Dutch Constitution explicitly prohibit
discrimination on the ground of nationality. Nevertheless, discrimination
on the ground of nationality is understood to fall within the scope of
these provisions, as the grounds of discrimination are not limited to those
mentioned in the provisions. The provisions mention that discrimination
based ‘on any other status’ is also prohibited.
32 de Groot 2005.
33 Effective nationality is the nationality of the country with which a person with more than one
nationality has the strongest social ties.
320 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
On the other hand, Article 21 (2) of the Charter of the EU and Article 18
of the Treaty on the Functioning of the EU (TFEU) explicitly prohibit
discrimination on the ground of nationality. The latter article states: ‘Within
the scope of application of the Treaties, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality
shall be prohibited.’
Moreover, Article 17 (1) ECN states: ‘Nationals of a State Party in possession
of another nationality shall have, in the territory of that State Party in which
they reside, the same rights and duties as other nationals of that State Party’.
Apparently the ECN regards nationals of a State Party with dual and single
nationality as equal cases.
34 See, however, the explanatory report to the ECN on Art. 5, which not only explains that the terms
national and ethnic origin are based on Art. 1 CERD but also explicitly states that State Parties in
some situations can give more favorable treatment to nationals of other States. Available at: http://
eudo-citizenship.eu/InternationalDB/docs/ECN%20Explanatory%20Report.pdf.
Betty de Hart and Ashley Terlouw 321
First, the aim of the Bill. As already explained, the official aim of the Bill is
to protect the interests of Dutch society against criminal acts by terrorists
(jihadists), which might very well be directed at Dutch society.39 At the time
35 The ECHR does use the concept of indirect discrimination but until now it is not very clear what
this means for the justifications it requires; it seems that the ECHR mainly uses the concept of
indirect discrimination to clarify that even if discrimination is not intended but is the result of a
neutral measure, discrimination can be at issue. See Terlouw 2013, at p. 159.
36 ECtHR, Gaygusuz v. Austria, 16 September 1996 (Appl.no. 17371/90): ‘The Contracting States enjoy
a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar
situations justify a different treatment. However, very weighty reasons would have to be put forward
before the Court could regard a difference of treatment based exclusively on the ground of nationality
as compatible with the Convention’. See also ECtHR, Genovese v. Malta, 11 October 2011 (Appl.
no. 53124/09), and recently: ECtHR, Dhabbi v. Italy, 8 April 2014 (Appl.no. 17120/09). See also
Mantu 2014, at pp. 90-92.
37 For an elaborate description of the concepts of direct and indirect discrimination in EU law, see
Ellis and Watson 2012, at pp. 148-156 and pp. 171-174.
38 This test of EU law only applies if EU citizens are concerned, not if a distinction is made between
EU citizens and third country nationals.
39 Second Chamber, 2012-2013, 29 754, no. 224.
322 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
of writing, some 130 Dutch jihadists have left for Syria.40 For some of them,
Dutch nationality cannot be revoked as they would then become stateless as a
result, while others can be expected never to return to the Netherlands, either
because they have been killed in action or for other reasons.41 Nevertheless,
some of them do return; according to the AIVD, up to now some 30 Dutch
‘jihadists’ have returned.42
However, the exact dangers of returning jihadists for Dutch society are
not specified in the explanatory memorandum accompanying the Bill.
For example, it is unclear whether and why radical jihadists would be less
dangerous if they are deprived of their Dutch nationality. The assumption
may be that they are less likely to return to the Netherlands. However,
entering the Netherlands with another passport is not very difficult if their
second nationality is the nationality of an EU Member State or if they travel
from a visa-free country. Besides, it can be questioned whether it is legitimate
and in accordance with the mutual trust between states to limit the danger
for the Netherlands by burdening other countries with Dutch extremists
who have been born and bred in the Netherlands under the responsibility
of the Dutch government and who happen to have another nationality but
often no factual ties with the country of this other nationality.
With regard to the requirement that the means must be suitable to attain
the desired aim, the question arises how effective the Bill is if it can only be
applied to part of the target group. Is it known how many of the jihadists
have dual nationality and will the deprivation of their nationality really
diminish the threat for Dutch society? Or is it, as Jensma has argued, a case
of ‘panic and nonsense rulemaking, which gives a false feeling of safety’?43
In relation to effectiveness, depriving only dual nationals of their Dutch
nationality raises several other questions. We have already touched upon
them above: are dual nationals more dangerous than single nationals and
40 Some 130 jihadists have left the Netherlands, of whom some thirty have returned. Nationaal
Coördinator Terrorisme bestrijding en veiligheid 2014.
41 At the time of writing, fourteen Dutch jihadists had died; Nationaal Coördinator Terrorisme
bestrijding en veiligheid 2014.
42 Nationaal Coördinator Terrorisme bestrijding en veiligheid 2014.
43 Jensma 2014.
Betty de Hart and Ashley Terlouw 323
what exactly are the threats that we are talking about? Is the Bill aimed at the
threat of terrorist attacks in the Netherlands or the threat of indoctrinating
other youngsters with a fascination for extremism? In both cases one does
not need to have Dutch or dual nationality to commit terrorist attacks, or to
have a deletarious influence on others. And, as Prabhat convincingly argues:
‘Differential deprivation adds to this perception of unequal treatment,
lack of belonging and potentially leads to more extremism.’44 In judging
effectiveness, such possible side-effects should be taken into account.
Finally, the fair balance of interests. This part of the justification test
consists of the proportionality requirement, that is whether the means are
suitable to attain the aim. Although the Bill lacks a clearly stated aim, we
assume that it is to prevent (further) terrorist acts. When weighing the
proportionality of a measure, it should be taken into account whether there
are alternatives to reach the same aim without discrimination. Such possible
alternative measures may include preventive measures or having the persons
involved serve their sentence in the Netherlands where they can follow
social rehabilitation courses under Dutch responsibility. In this context, it
is interesting to point at the practice in Aarhus, Denmark, where returning
jihadists are offered medical and psychological aid, as well as support in
finding a job or embarking on a study. The aim is to reintegrate them and
prevent further terrorist acts.45
The proportionality requirement is the most difficult part of the objective
justification test as it requires a balancing of unequal interests and because
it is difficult to establish which interests have to be proportional with what
other interests. The proportionality requirement is, on the one hand, about
the interests which are served with the discriminatory measure and, on
the other, about the interest of the victims of the discriminatory measure.
The aim of the measure is, as said before, national safety: protecting Dutch
society, in this case against terrorist attacks and/or the negative influence of
radicalisation. It is therefore important to establish in each individual case
how dangerous someone is for Dutch society. Although it may be assumed
that an individual assessment will already have been carried out during the
criminal procedure, another kind of balancing of the individual interests
will be necessary in case Dutch nationality is withdrawn.46 The consequences
for the person in question may be very harsh. The argument is that these
consequences will be less harsh for persons who have dual or multiple
nationalities because they have their other nationality or nationalities to
rely on. If having dual nationality makes one more prone to losing Dutch
nationality, then multiple nationality becomes less of an advantage and
more of a liability. If the person in question has been born and bred in the
Netherlands, the loss of his/her Dutch nationality will often result in the loss
of the only effective nationality or even de facto statelessness.47
46 Compare the Rottman case in which the CJEU requires a proportionality test in case of the loss of
Union citizenship. Case C-135/08, Janco Rottmann v. Freistaat Bayern, [2010] ECR I-01449, and
about this case Mantu 2014, at p. 126 ff.
47 Compare the Nottebohm Case (Liechtenstein v. Guatemala), second phase, Judgment, 6 April 1955,
p. 4 in which it was determined that a national must prove a meaningful connection with the State
of his nationality to be entitled to protection by this State.
48 Groen 2014.
Betty de Hart and Ashley Terlouw 325
A final question concerns the residence status of a person who has lost his/
her Dutch nationality. The implicit assumption concerning the Bill is that
persons who have had their nationality revoked or automatically lost can
49 Kulk forthcoming.
50 Kulk and De Hart 2011.
51 Kulk forthcoming.
326 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
52 Stronks 2013.
Betty de Hart and Ashley Terlouw 327
6. Conclusion
History shows that over the years the Dutch government has enacted laws
to deprive people who had been fighting in other countries of their Dutch
nationality, but that it was eventually concluded time and time again
– although sometimes after a considerable period of time – that nationality
had to be restored to large numbers of people. Although the case at hand
is different in that statelessness is prevented, we have argued that this does
not in itself solve the problem of the loss of nationality, but rather creates
the problem of depriving dual nationals of the only effective nationality that
they have. It may therefore be expected that deprivation due to this new Bill
will eventually lead to the restoration of citizenship for people who belong in
the Netherlands, even if they have done things that ‘we’ do not like.
According to some academics, ‘the war on terror’ has resulted in a process
of ‘unmaking citizenship’, meaning that the significance of nationality is
eroded for dual nationals, who have come to be seen as enemy nationals.53
Others have argued that dual nationality allows states to use their ‘flexible
sovereignty’ against dual nationals.54 Whatever one wants to call it, it is
clear that dual nationality is sometimes not or is no longer an advantage for
individuals, but rather a liability.
Besides, the Bill arguably violates the prohibition of discrimination on
grounds of nationality (at least indirectly) and on grounds of national or
ethnic background as people with dual nationality will more often than
people with single Dutch nationality have a non-Dutch ethnic background.
The government has not yet given a convincing objective justification for the
differential treatment and it can be doubted whether this is at all possible.
In most cases, it will not be possible to use the Bill against returning jihadists
either because they have single Dutch nationality or because they are minors
or have committed the crimes as minors. We have also argued that even if
their nationality could be withdrawn, it is not certain that residence can also
be refused and expulsion can take place.
53 Nyers 2006.
54 Stasiulis and Ross 2006.
328 Born here. Revocation and the automatic loss of Dutch nationality in case of terrorist activities
Postscript
On September 4, 2014, the Minister of Security and Justice submitted a
revised Bill to Parliament, which no longer contains an automatic loss of
Dutch nationality. It also only allows for the withdrawal of Dutch nationality
for crimes committed after the entry into force of that Act, and not for
crimes committed before that date, as the first draft had done.56 It extends
the grounds for the withdrawal of Dutch nationality due to irrevocable
convictions for terrorist acts as stipulated in Article 14 DNA – as we have
seen, this was already possible since 2010 – due to Article 134a Criminal
Code. The reason for revising the Bill was the critical advice delivered by the
Raad voor de Rechtspraak (Council for the Judiciary) and the Adviescommissie
voor Vreemdelingenzaken (Advisory Committee on Migration Affairs). In
light of the arguments presented in our contribution, we are of course very
pleased that the automatic loss of nationality no longer forms part of the Bill.
However, what remains is a Bill for the withdrawal of nationality which treats
dual nationals and single nationals differently.57 Together with D’Oliviera,
we are of the opinion that nationality law is not a suitable instrument to
combat terrorism, and the government should limit itself to measures in the
sphere of criminal law.58
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of the Nation-State’, Journal of Ethnic and Migration Studies, Vol. 32, No. 1,
2006, pp. 49-68.
de Hart, B., Een tweede Paspoort, Dubbele nationaliteit in de Verenigde Staten,
Duitsland en Nederland, Amsterdam University Press, Amsterdam, 2012.
Heijs, E., Van vreemdeling tot Nederlander. De verlening van Nederlanderschap aan
vreemdelingen 1813-1992 [diss. KUN], Het Spinhuis, Amsterdam, 1995.
Holtmaat, R., ‘De zaak Albayrak & Aboutaleb tegen Wilders & half Nederland.
Een duidelijk geval van discriminatie, maar niet strijdig met artikel 1 Gw’, NJB
2007, No. 19, pp. 1152-1158.
Jensma, F., ‘Paniekwetgeving en onzinregels geven vals gevoel van veiligheid’, NRC
Handelsblad, 26 April 2014.
Kramers, C.J.M., ‘Nederlanders in vreemde krijgs- en staatdienst, Nederlandse
historiën’, populair tijdschrift voor (streek) geschiedenis, Vol. 30, No. 3, 1996,
pp. 83-93.
Kulk, F., ‘Nationaliteitsrecht in Egypte, Marokko en Tunesië en registratie in
Nederland: recente wijzigingen onder de loep’, forthcoming.
Betty de Hart and Ashley Terlouw 331
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Dutch criminal law, conscience and equality
1. Introduction
In Dutch criminal law, defendants occasionally contend that they have
broken the law because their belief or conscience required them to do so. For
instance, in 2013 an orthodox Jewish man, who was convicted of failing to
comply with the duty to show an identity document on a Saturday, argued
that it was contrary to his religious convictions to carry an identity card
with him on Shabbat.1 Offenders breaking the criminal law because they
hold that this law conflicts with their conscience may also be motivated by
political convictions, their breaking of the law being a means of focusing
the public’s attention on perceived wrongs in society – they aim to change
the law and policy by breaking it.2 This contribution deals with the broader
group of ‘conscience offenders’, be they politically motivated or not.
The use of criminal law against those whose conscience tells them to do or
not to do something is particularly problematic: criminal law sends out a
strong signal that the behaviour at issue is wrong, is against the rules and
should be punished – whereas the person concerned is convinced that he
or she is acting justly and is acting upon his or her conscience.3 The state’s
legitimate duty to protect law and order – to uphold the law which has
come about in a democratic manner – can strongly conflict with the state’s
duty to respect the individual liberty, the moral conscience, of its citizens.4
Moreover, the ‘conscience offender’ presents a dilemma between the equal
application of the law to all persons versus taking into account the individual
circumstances of a case – a dilemma that is present throughout criminal law
as a whole (e.g. in sentencing), but that is particularly pressing in these types
of cases because they are about individuals consciously breaking the law that
is equally applicable to all.
This contribution delves into Dutch criminal case law on drug offences
in which defendants have relied upon Article 9 European Convention on
Human Rights (ECHR), in order to shed light on the different ways in which
the courts have attempted to solve the dilemma of the equal application of
the criminal law versus acting upon the demands of one’s conscience. It first
provides a short outline of some legal theoretical conceptions about equality,
democracy and ‘conceptions of the good’ as relevant to conscience offenders;
then it sets out the general options for dealing with conscience offenders
under Dutch criminal law; and, finally, it provides an analysis of the Dutch
criminal case law on drug offences in relation to Article 9 ECHR.
absolute truths, but rather ‘provisional truths’. After all, a minority could
one day succeed in becoming the majority or part of the majority.8
In a society that denies its citizens political rights, such as the right to protest,
offenders breaking the law in order to challenge this may thus have a point.
The same is true when such rights are guaranteed in principle, but when
less powerful (minority) groups do not effectively have sufficient options
to participate in the decision-making process. One could say that the more
conscientious offenders appear in court, the less a democracy functions.9
But even in a society where such democratic freedoms are guaranteed in
principle, it is still possible that some individuals or groups are very much
opposed to certain prohibitions. Not every conception of the good will be
equally protected by the law – think, for instance, of conceptions that require
harming others or harming society.
In an ideal world, every offence that is included in criminal legislation
proscribes behaviour that is considered to be unlawful – not merely formally
(in the sense that it is included in legislation), but substantively. If not,
the offence should simply not be part of the criminal law. The legislature
should also be careful not to criminalise behaviour that, in many particular
instances, would actually be considered lawful. In such cases, it may for
instance be an option to create specific exceptions.10 Criminal policy should,
more generally, be grounded on legitimate reasons for criminalisation (also
in light of the principle that criminal law is a last resort).11 In such an ideal
situation equality, too, is best safeguarded, as judges do not have to deal with
exceptions in individual cases. However, one may ask whether this is at all
possible: often, criminal offences have to be couched in rather general terms
and when defining a criminal offence, exceptions (in the sense of behaviour
that is substantively lawful but still matches the offence’s definition) are
difficult to predict. Therefore, a criminal law system is more just if the
possibility exists that in individual cases exceptional defences can be raised –
including defences that appeal to an individual’s conscience.
12 ‘Veearts-arrest’ [the ‘Veterinarian’ case], HR 29 February 1933, NJ 1933, 918 incl. case note
Taverne.
13 It was accepted in Hof Arnhem 6 April 2009, ECLI:NL:GHARN:2009:BI1487, NJ 2010, 444
incl. case note Reijntjes, although that case did not involve freedom of conscience as such.
14 Machielse 2008.
15 Veearts-arrest’ [the ‘Veterinarian’ case], HR 29 February 1933, NJ 1933, 918 incl. case note
Taverne.
Marloes van Noorloos 337
distress, which makes this defence different from the ‘lack of substantive
unlawfulness’ defence.16
In cases of conscientious objections, these defences are hardly ever accepted:
after all, the Dutch legislature has drafted specific administrative law regimes
for conscientious objections as regards military service (suspended in the
Netherlands since 1997) and compulsory education.17 If such a regime is in
place, defences can only come into play if a defendant has not complied with
the conditions set in that regime – but it will be extremely difficult to have
such a defence accepted as the legislature has already balanced the interests
involved. A similar regime applies when criminal offences are combined
with an administrative licensing or exemption system, such as for medicinal
drugs. Acting in contravention of such a system is, in principle, unlawful –
although a defence may be accepted in very exceptional circumstances.18
Yet appeals to such defences – particularly the ‘lack of substantive
unlawfulness’ – give rise to difficult dilemmas: (in which situations) can
individuals be allowed to put their own conscience above the state’s interest
in enforcing the law?19 Defendants may try to argue, through such a defence,
for a change in the law on the basis of their political convictions (e.g. actions
against nuclear weapons); however, the courts are logically inclined to leave
such issues to the legislature rather than solving them by themselves – they
often argue that it is for the legislature to strike a balance between different
societal interests, rather than for each person individually.20 This could be
different if the legislature has left a lacuna in the law, which – if the legislature
had known about this exception – would have been solved in favour of the
defendant.21 It is moreover required for any defence that the defendant has
acted in line with the principles of subsidiarity and proportionality; often,
16 De Hullu 2012.
17 See Van Noorloos 2014.
18 HR 16 September 2008, ECLI:NL:HR:2008:BC7938, NJ 2010, 5 incl. case note Buruma; see
also HR 18 May 2010, ECLI:NL:HR:2010:BK2885.
19 See Schuyt 1972.
20 HR 26 March 1957, NJ 1957, 473. In the field of euthanasia, the Dutch courts have
actually – through defences – taken the lead in this regard. See also HR 11 January 1977,
ECLI:NL:HR:1977:AC1783; De Hullu 2012, at p. 344.
21 Remmelink 1970, at p. 185.
338 Dutch criminal law, conscience and equality
legal means (such as lawful demonstrations) would still have been possible
to achieve the goal pursued.22
22 Machielse 2008.
23 This description is partly based on Van Noorloos 2014.
24 Rb Amsterdam 21 May 2001, ECLI:NL:RBAMS:2001:AB1739, AB 2001, 342 incl. case note
Vermeulen.
25 Hof Amsterdam 24 February 2012, ECLI:NL:GHAMS:2012:BV6888.
Marloes van Noorloos 339
26 HR 9 January 2007, ECLI:NL:HR:2007:AZ2497 AB 2007, 181 incl. case note Groen and
Vermeulen.
27 HR 9 January 2007, Conclusion AG Bleichrodt, ECLI:NL:PHR:2007:AZ2497, at no. 3.10 and
3.15. See also HR 18 May 2010, ECLI:NL:HR:2010:BK2885.
28 ECtHR, Campbell and Cosans v. United Kingdom, 25 February 1982 (Appl.no. 7743/76), at
para. 36; ECtHR, Valsamis v. Greece, 18 December 1996 (Appl. no. 21787/93), at para. 25.
29 See Van Ooijen 2012, at p. 121.
340 Dutch criminal law, conscience and equality
some real connection with the belief ’30 and ‘Article 9(1) does not cover each
act which is motivated or influenced by a religion or belief ’,31 though it is
not necessary to prove that one has acted ‘in fulfilment of a duty mandated
by the religion in question’.32
As regards conscientious objections, the European Commission on Human
Rights held that the Convention does not guarantee, as such, a right to
conscientious objection.33 However, in Bayatyan v. Armenia the Court did
change its position as regards conscientious objections to military service.34
It held that
Under the Article 9(2) test the Court further held that
In Savda v. Turkey, the Court furthermore ruled that there was a positive
obligation on the authorities to provide for an effective and accessible
procedure to establish an entitlement to conscientious objector status as
regards military service.36 But considering the Court’s emphasis on the fact
that conscientious objections to military service are so broadly accepted in the
Council of Europe’s member states, it is difficult to draw general conclusions
from these rulings as regards ‘conscience defences’ in general– with regard
to the regulation of drugs, for instance, states’ margin of appreciation is
generally large.37 Hence it is not likely that the Supreme Court’s conclusion
in the ayahuasca case would lead the ECtHR to judge that Article 9 has been
violated.
5. Conclusion
The ayahuasca case law illustrates how the Dutch courts have tried to solve
the dilemmas of individual conscience versus the application of criminal
offences that apply equally to every citizen. The courts’ differing conclusions
in these cases are caused by their different balancing of interests – in these
cases, under Article 9(2) ECHR. Can the legislature be expected to anticipate
such dilemmas? Naturally, it cannot allow persons to behave according to the
demands of their own conscience if this involves harming others or harming
society. However, in specific circumstances, the harm done may be minimal
and may thus be outweighed by other considerations. In the legislative process
(national as well as international) it is particularly important that the voices
of minority groups, who may present exceptions to the general rule that are
not widely known, are taken into account. Besides legislative options such as
exemption systems, there may be a role for prosecution policy. Otherwise, it
will come down to the courts to balance the interests involved – either under
a general defence or through resorting to Article 9 ECHR. (A right which,
in turn, confronts the authorities with the ever‑difficult
question of what
BIBLIOGRAPHY
Jenny E. Goldschmidt
1. Introduction
The principle of equality was the subject of Titia Loenen’s PhD,1 and has
remained one of the core themes of her work. Incorporating perspectives
from different streams of feminist studies and human rights theory, she made
a large contribution to this field. Our common interest here was reflected
in many debates we had, mostly agreeing but fortunately also discussing
and challenging different points of view. In 1989 I was invited to write a
report for the Annual meeting of the Dutch Lawyers’ Association (NJV)
on ‘Positive discrimination’, in particular the constitutional aspects.2 This
offered me an opportunity to apply the feminist legal debate on the principle
of equality as it developed in the same period, mostly in the US.
Some 25 years after this exercise the debate is still continuing on the
obligations emanating from the principle of equality and the obligations
of the State to promote de facto equality. Therefore, it seems challenging to
reconsider some aspects of the views at that time against the background of
the legal and actual conditions today.
In this short contribution I do not intend to give a complete academic
overview, but I will highlight some issues relating the development of
the improvement of the position of (in particular) women to the legal
development and proposed new instruments.
1 Loenen 1992.
2 Goldschmidt 1989.
346 Ms Goldschmidt is it true that you are deaf ? That would really help us to meet the quota!
Positive discrimination revisited…
3 See: Bacchi 1996, at pp. 15-17: sometimes positive discrimination can (temporarily) be part of the
measures.
4 See also: Freeman 2003.
Jenny E. Goldschmidt 347
Only in 2012, after some years earlier (in 2006) the so-called Recast
Directive10 had reframed the provision on positive measures ‘… with a view to
ensuring full equality in practice …’(art. 3), did the Dutch National Human
Rights Institution, which succeeded the Equal Treatment Commission, use
this change as a tool to broaden the scope for affirmative action and allow
absolute priority for women in a case where the exclusion of women was very
persistent.11
10 Directive 2006/54/EC of 5 July 2006 on the Implementation of the principle of equal opportunities
and equal treatment of men and women in matters of employment and occupation (OJ L 204 p. 23).
11 Opinion 2012-195 (2012), see also the Comments of Cremers-Hartman and Vegter 2013, at
pp. 70-73.
12 Scales 1986.
Jenny E. Goldschmidt 349
13 The (not mutually exclusive) arguments of both sides are summarized by Titia Loenen in her synopsis
of the theoretical aspects of the Principle of Equality for students, Loenen 1998, at pp. 57-70.
14 The research carried out at Leiden University by Annelies van Vianen as early as 1987 is still very
interesting as it discloses the invisible barriers in a selection procedure: van Vianen 1987.
350 Ms Goldschmidt is it true that you are deaf ? That would really help us to meet the quota!
Positive discrimination revisited…
even to disqualify the women (they do not meet the necessary qualifications):
this may also be combined with amending the necessary qualifications during
the procedure (e.g. the requirement of a certain amount of publications is
changed into ‘international’ publications or publications in a certain field
without a direct relevance to the position at stake). This argument can
only be countered by guaranteeing and monitoring the neutrality of the
procedures and thus trying to prevent any form of bias. Because this is not
an easy task, more absolute forms of preferential treatment or quotas are seen
as reasonable options despite the possible negative side-effects.
18 Proposal for a Directive of the European Parliament and of the Council on improving the gender
balance among non-executive directors of companies listed on stock exchanges and related
measures, COM(2012) 614.
19 Griffiths 1999.
Jenny E. Goldschmidt 353
men) on the board of companies has been criticized as having only limited
added value and many shortcomings. But, on the other hand, it is essential to
take at least some steps to achieve more equality as extensively explained by
Linda Senden and Mirella Visser, who provide recommendations to improve
the Directive that seem to be absolutely necessary to make it effective.25
I can only hope that after another 25 years the debate on quotas and
preferential treatment will have become a non-issue because we will then
have achieved justice and that gender, disability, ethnicity or other grounds
that exclude groups will in no way be decisive for the enjoyment of human
rights and dignity.
Bibliography
Bacchi, C.L., The Politics of Affirmative Action, ‘Women’, Equality and Category
Politics, Sage Publications, London, 1996.
Cremers-Hartman, E. and Vegter, M.S.A., ‘Geslacht’, in: Holtmaat, R. (ed.),
Gelijke Behandeling 2012, Oordelen en Annotaties, Wolf Legal Publishers,
Amersfoort, 2013, pp. 61-88.
European Union Agency For Fundamental Rights, ‘Violence against women:
an EU-wide survery, Main results’, Report, Publications Office of the European
Union, Luxembourg, 2014.
Freeman, M., ‘Temporary Special Measures: How Long is Temporary and What is
Special?’, in: Boerefijn, I. et al. (eds.), Temporary Special Measures, Accelerating de
facto Equality of Women under Article 4(1) UN Convention on the Elimination of All
Forms of Discrimination Against Women, Intersentia, Antwerp, 2003, pp. 97-118.
Goldschmidt, J.E., Staats- en bestuursrechtelijke aspecten van positieve actie
(Constitutional and administrative aspects of affirmative action), (Preadvies
Nederlandse Juriste Vereniging), W.E.J. Tjeenk Willink, Zwolle, 1989, pp. 57-117.
Goldschmidt, J.E. and Loenen, T., ‘Inleiding Voorkeursbeleid voor Vrouwen’, in:
Holtmaat, R. (ed.), Betogen voor Recht en Verandering, Eva Cremers-Hartman,
Kluwer, Deventer, 2014, pp. 101-106.
Griffiths, J., ‘The Social Working of Anti-Discrimination Law’, in: Loenen, T. and
Rodrigues, P. (eds.), Non-Discrimination Law, Comparative Perspectives, Kluwer
Law International, The Hague, 1999, pp. 313-330.
Holtmaat, R., ‘Naar een ander recht’, Nemesis, Vol. 4, No. 1, 1988, pp. 3-13.
Loenen, T., ‘Verschil in Gelijkheid. De conceptualisering van het juridisch
gelijkheidsbeginsel met betrekking tot vrouwen en mannen in Nederland en
de Verenigde Staten’(Difference in Equality, The Conceptualisation of the Legal
principle of Equality with regard to women and men in the Netherlands and the
United States), W.E.J. Tjeenk Willink, Zwolle, 1992.
Loenen, T., The principle of Equality, (Ars Aequi Cahiers), Ars Aequi libri, Nijmegen,
1998.
Peroni, L. and Timmer, A., ‘Vulnerable Groups: the Promise of an Emergent
Concept in European Human Rights Convention Law’, International Journal of
Constitutional Law, Vol. 11, No. 4, 2013, pp. 1056-1085.
Scales, A.C., ‘The Emergence of a Feminist Jurisprudence: An Essay’, Yale Law
Journal, Vol. 95, No. 7, 1986.
Jenny E. Goldschmidt 357
Selanec, G. and Senden, L., ‘Positive Action Measures to Ensure Full Equality
in Practice between Men and Women, including on Company Boards’,
European Network of Legal Experts in the Field of Gender Equality, European
Commission, 2012.
Senden, L. and Visser, M., ‘Balancing a Tightrope: The EU Directive on Improving
the Gender Balance among Non-Executive Directors of Boards of Listed
Companies’, European Gender Equality Law Review, No. 1, 2013, pp. 17-33.
van Vianen, A., Het selektie- interview, Over de rol van sekse-stereotypen [diss.
Universiteit Leiden], 1987.
Equality and human rights:
new grounds for concern
Lucy Vickers
1. Introduction
One might assume when considering equality and human rights together
that these two concepts would work cumulatively to create a whole that is
greater than the sum of the two parts. However, at times, as the work of Titia
Loenen1 has demonstrated, these two concepts can end up in conflict, with
a resulting reduction in each. The reasons for this conflict are numerous,
and this paper does not claim to address them all. Instead its focus is on
two possible reasons. First, I consider the difficulty that the law in Europe
has had in dealing with the increase in the number of grounds on which
equality can be claimed. Second, and related to the first, I assess the extent
to which the new grounds raise questions about the meaning of the terms
‘equality’ and ‘human rights’. Finally, I suggest that a renewed understanding
of the meaning of these terms may help to resolve the supposed conflict
between them and lead to ways forward in which these two notions could
more positively interact.
expect others to respect the dignity inherent in their humanity is one that
has been agreed virtually universally, perhaps most famously in the Universal
Declaration of Human Rights: ‘All human beings are born free and equal in
dignity and rights’.3 Here we immediately see a fundamental link between
human rights and equality. The concept of human dignity, a foundational
concept in human rights theory, does seem to be intimately linked to the
idea of equality: humans may not be equal in their abilities and attributes,
but they are equal in their humanity and moral worth. There is thus an
objective good in upholding their equality, and in attempting to create a
society in which all can flourish.
Thought of in this way, equality and human rights should not be in conflict
at all. Equality is thus understood as a fundamental human right: indeed
many human rights documents include a right to equality, and most equality
advocates would see their quest as governed by human rights principles.
Moreover, it is also assumed in most human rights documents that human
rights should be enjoyed equally by all, again showing the intimate links
between the two concepts.
To an extent the overlapping nature of the interests in human rights and
equality have had a positive influence on the development of the first grounds
of equality. When considering gender and race equality, for example, it seems
to be helpful to consider these in terms of equality as well as human rights.
Human rights protection came first, with the realisation that talk of the
Rights of Man meant the rights of white men coming only later, a few vital
participants having been left out of the debate. Eva Brems4 outlines clearly the
development of human rights to become more inclusive, with its extension
to race, gender and disability. In these contexts, the use of the language of
equality has led to the improvement of human rights protection, and, in
turn, equality claims have been bolstered by the recognition that they are
based on fundamental human rights claims. This improved understanding of
equality as a part of human rights protection has also led more recently to an
3 Art 1. Dignity also features in the preamble to the United Nations Charter, and the preambles of
the ICCPR and ICESCR.
4 See her contribution in this volume.
Lucy Vickers 361
are reasonably easy to justify and remain common across Europe. Applied
to other grounds of discrimination such an approach would not be allowed.
The arguments about the rights of younger workers and their need for work,
which are accepted in relation to debates surrounding retirement,7 would be
very unlikely to be accepted if applied to gender. For example, when in 2011
the UK’s Universities Minister David Willets blamed educated working
women for the lack of jobs available to aspiring working class men – he said
that feminism was the ‘single biggest factor’ in a lack of social mobility8 –
he was roundly criticised. One certainly cannot imagine such an argument
gaining the support of the CJEU as a justification for gender discrimination.
Yet the argument that older people must be treated unfavourably in order to
protect younger people has been accepted in the context of age discrimination.
A second area in which conflicts between rights have arisen in relation to the
new equality grounds relates to religion, and this will be the focus of what
follows. The conflict can be summarised with a few examples from the case
law which illustrate the potential clashes between equality law and human
rights.
The first example involves the wearing of the hijab or headscarf, and can be
illustrated by Şahin v Turkey9 in which a university student objected to the
prohibition of religious attire being worn in her university as a breach of
her freedom to manifest her religion and belief. The ECtHR accepted that
the ban on the headscarf could be justified, and referred in its reasoning to
the view that the headscarf is ‘hard to square with the principle of gender
equality.’10 A second example of the potential clash between human rights
and equality can be seen in the cases involving Christian marriage registrars.
In the case of Ladele, heard with Eweida v. United Kingdom11 the claim that
dismissal for a religiously motivated refusal to conduct civil partnerships was
a breach of the right to freedom of religion was rejected. Instead the equality
7 Case C-341/08, Petersen v Berufungsausschuss fur Zahn fur den Bezirk Westfalen-Lippe, [2010] ECR
I-00047.
8 Mulholland 2011.
9 ECtHR, Leyla Şahin v. Turkey, 10 November 2005 (Appl.no. 44774/98).
10 ECtHR, Leyla Şahin v. Turkey, 10 November 2005 (Appl.no. 44774/98), at para. 111.
11 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10) (on Ladèle).
Lucy Vickers 363
12 Mccolgan 2009.
13 Malik 2008.
364 Equality and human rights: new grounds for concern
14 ECtHR, Leyla Şahin v. Turkey, 10 November 2005 (Appl.no. 44774/98); ECtHR, Dahlab v.
Switzerland (admissibility decision), 15 February 2001 (Appl.no. 42393/98).
15 Case C-170/84, Bilka-Kaufhaus v Weber von Hartz, [1986] ECR 1607.
Lucy Vickers 365
5. ‘Lost in translation’
In some senses, both the ‘human rights’ perspective and the ‘equality’
perspective can be seen to use similar methodologies when dealing with
difficult cases involving religious rights. Both ultimately rely on a balancing
approach, with both the ECHR and the Equality Directive providing limits
on their protection. With regard to human rights claims, this is reflected
366 Equality and human rights: new grounds for concern
in the fact that although religion, belief and conscience are protected
absolutely, manifestation of religion and belief can be limited where
justified. With regard to discrimination claims this is seen in the fact that
while direct discrimination cannot be justified, exceptions are allowed where
religious employers impose genuine occupational requirements which are
justified and proportionate; and indirect discrimination can be justified
where proportionate. Thus, beyond the right to believe at all, both systems
allow some balancing of competing interests. To an extent then, there is a
commonality of approach between the two frameworks.16 This can be seen in
the ready translation of four religious equality cases brought from the UK to
the ECtHR in January 2013.17 At the domestic level, these case were brought
under the Directive derived UK Equality Act 2010, as claims of indirect
discrimination (the application of a neutral rule, not to wear a visible cross or
not to refuse services to gay clients, put the Christian claimants at a particular
disadvantage compared to other staff, and the rules could not be justified).
After their rejection by the domestic courts, an application was made to
the ECtHR for their consideration under Article 9 cases, on the basis that
the claimants’ freedom to manifest religion had been interfered with. The
question for the court was then whether this failure could be justified.18
However, the human rights jurisprudence brings some approaches to
the balancing exercise which do not translate readily between the two
perspectives. Indeed, care is needed to avoid the danger that matters are ‘lost
in translation’, if concepts developed in the human rights context are used
without further reflection in the equality context.
19 EComHR, Ahmad v United Kingdom, 12 March 1981 (Appl.no. 8160/78); EComHR, Stedman v
United Kingdom (admissibility decision), 9 April 1997 (Appl.no. 29107/95).
20 For example, see the UK House of Lords case of R (on the application of Begum) v Headteacher and
Governors of Denbigh High School [2006] UKHL 15.
21 ECtHR, Eweida and others v UK, 15 January 2013 (Appl.nos. 48420/10, 59842/10, 51671/10
and 36516/10), at para. 83.
368 Equality and human rights: new grounds for concern
25 ECtHR, Hasan and Chaush v Bulgaria (Grand Chamber), 26 October 2000 (Appl.no. 30985/96),
at para. 62; see also ECtHR, Serif v Greece, 14 December 1999 (Appl.no. 38178/97).
370 Equality and human rights: new grounds for concern
6. Seeking a solution
These various challenges and conflicts may lead one to suppose that equality
and human rights are destined to be forever in some sort of circle of
contradiction: they are at once two sides of the same coin, and yet potentially
in conflict. Moreover, it seems that it is the new grounds of equality that
have given rise to much of the conflict.
How then, might one go about moving towards a resolution of this conflict?
The suggestion here is that things could improve if ‘equality’ is viewed less
as a unitary concept, and more as a concept with a plurality of meanings.
This involves not only the recognition of a range of meanings of equality,
but also an acceptance that equality grounds are not all the same.28 If it is
accepted that ‘equality’ is a multi-faceted concept, and that not all grounds
of equality are equal, this may enable a better reconciliation of the conflicts
identified above.
There has been extensive academic debate about the meaning and purposes
of equality29 which will not be expanded upon here. Suffice to say that a
number of meanings exist beyond the most obvious meaning of formal
or symmetrical equality; meanings that seek to meet the basic difficulty in
equalities thinking about identifying which categories are sufficiently alike
to warrant like treatment.30 More substantive conceptions of equality focus
on the link between equality and individual dignity and identity; on the use
of equality to address disadvantage and redistribution;31 and on equality as
a means of addressing social exclusion and promoting participation.32 It is
arguable that these different understandings of equality may match better
with some grounds than others. For example, it has been suggested that
28 See McCrudden 2005.
29 See for example, O´Cinneide 2006, Barnard and Hepple 2000, Fredman 2002a, Hepple 2008.
See also Fraser 2000 and Taylor 1992.
30 See Westen 1982.
31 See Barnard and Hepple 2000.
32 Collins 2003, Fredman 2002b, Fraser 2000.
372 Equality and human rights: new grounds for concern
sexual orientation equality ties in more fully with ideas of equality based
on dignity and identity, than with ideas about redistribution and economic
disadvantage. Conversely, it may be that the issue of age discrimination
has more resonance with an understanding of equality based on redressing
economic disadvantage rather than confirming identity.
A more varied understanding of the meaning of equality may help to meet
some of the difficulties identified above: if age equality is founded on a
concept of disadvantage, this may help us to balance the interests of the older
worker against younger workers better than if we see the issue as one relating
to individual dignity. For example, viewed as a matter of redistribution, age
equality protection may allow the justification of retirement; viewed as a
matter of identity, this would be very difficult to justify.33
Not only is it worth considering that equality is not a unitary concept, it
may also be helpful to accept that different grounds of equality may not need
to be treated the same, even though this goes against the current rhetoric
from the CJEU which suggests that there should be no hierarchy as between
the various equality provisions across the EU.34 A number of suggestions
have been made in the literature about ways in which the grounds of
discrimination are inherently different, which may justify the development
of a degree of hierarchy as between them. For example, it has been suggested
that some grounds (gender, race, sexual orientation) are truly irrelevant to a
person’s ability to undertake work, while other grounds are relevant some of
the time, because they may either limit availability to do a job (pregnancy,
religion) or may limit ability to perform a job (disability, age). Thus treating
different strands differently may be an acceptable way forward.35 Other
differences identified include differences between the grounds in terms of
whether the characteristics are biological differences (sex, age), ascriptive
differences (ethnicity), or chosen characteristics (sexual orientation,
religion).36 The question of whether these latter characteristics are chosen is
clearly contentious, but the fact that distinctions can be drawn between the
different grounds does suggest that discrimination is not all equal, and that
hierarchies may not only be inevitable but may also be useful tools to help us
find a way around the contradictions that have been identified above, when
we try to reconcile the two goods of equality and human rights.
7. Conclusion
The pursuit of the twin goals of the protection of human rights and of
equality at times lead to some difficulty. As explored above, they work both
in ways that are complementary and in ways that can conflict. This can
cause particular difficulties when the same factual scenario, such as how to
deal with religious symbols at work, raise both human rights and equality
concerns. Moreover, there is a danger that approaches which add clarity to
the debate in relation to human rights thinking can be ‘lost in translation’
and can cause difficulties in the treatment of equality. It has been suggested
that recognition of a range of meanings for equality may allow for some
creative and flexible responses to these tensions.
However in the shorter term, these tensions are bound to continue. This
is largely due to the social and political environment in which the issues
are played out, one in which support for the protection of human rights
and equality seems to be diminishing. In a world in which protection for
equality and human rights can feel under attack it is attractive to join forces
and use the additional power which the linking of the two concepts offers:
the rhetoric is much stronger if human rights and equality are seen as two
sides of the same coin. There is a real danger that if the different grounds
of equality part company in terms of their application, so that different
justifications are allowed for different grounds of equality, this could lead to
a dilution of protection for all grounds. This is because the language of parity
of grounds can then be reintroduced in order to level down, rather than
level up, the protection. This can be seen in the context of the Netherlands,
in the discussions on the accommodation of religious manifestations in the
public sphere.37 Thus, it may well be that politically it is important for the
two concepts to remain linked for the time being. However, where tensions
37 For an overview of developments in the Netherlands see Van den Brink and Loenen 2012.
374 Equality and human rights: new grounds for concern
BIBLIOGRAPHY
1. Introduction
If human rights are truly universal they must apply to interactions between
humans on the internet – even if one cannot know for certain who the
person is that one is dealing with, even if he, she or it may be a dog.1 On
July 5, 2012, the UN Human Rights Council adopted the Resolution
entitled ‘The Promotion, Protection and Enjoyment of Human Rights on
the Internet’, affirming that ‘the same rights that people have offline must
also be protected online’.2
It seems obvious that the same rights that people have offline must also be
protected online, especially human rights. However, it is not so obvious what
this means exactly, and how this might be done. Even if human rights are
universal, there are major differences in the views on what these rights mean
and how they should be realised, even between explicitly self-proclaimed
human rights supporters such as the US, on the one hand, and European
Union member states, on the other. The aim of this short note is modest:
some of the major issues will be looked at to serve as food for thought on
how to view the complex relationship between human rights, equality and
the internet. It is argued that this rethinking is badly needed.
If equality and human rights is nothing but trouble, there is even more
strife when we consider equality and human rights on the internet. Two
specific characteristics of communication mediated by the internet cause
major challenges for the law. The first is the possibility to be (relatively)
1 Figuratively speaking of course, and referring to the famous cartoon by Peter Steiner, published by
The New Yorker on July 5, 1993. See: en.wikipedia.org/wiki/On_the_Internet,_nobody_knows_
you’re_a_dog.
2 UN Human Rights Council, ‘Resolution: The promotion, protection and enjoyment of human
rights on the Internet’, UN Doc. A/HRC/20/L.13, 29 June 2012.
378 Dogs on the internet: equality and human rights
2. Privacy
Every publication on privacy starts with a reference to Warren and Brandeis,
who coined the term privacy and introduced the often cited ‘right to be let
alone’.3 Now, there is also a discussion about a ‘right to be forgotten’.4
Privacy has a physical dimension: one’s body, bed, house, and to some extent
even one’s workplace. Privacy also has an informational dimension. Westin
first used the term ‘informational privacy’ for the idea that everybody should
have the right to determine who knows which particular details about him
or her.5 It is this notion of privacy that is the focus of most discussions on
privacy in the information age.
Clearly, we do not have an unlimited right to determine who knows which
particular details about us. The government, for one, needs to know many
things about us for different purposes, and normal daily life entails that we
are seen and leave both physical and digital traces.
Do we view privacy as a human right that, as such, cannot be traded by the
person concerned, as is the common position in Europe? Or do we treat
it as a commodity that can be sold for a discount or a ‘free’ service?6 The
internet has lured us into the second, U.S. approach. Most of us use one
or more social media to keep in touch with our network of friends and
acquaintances, and to ‘meet’ new people. We accept (or cannot be bothered
to refuse or delete) cookies that keep track of our online behaviour. We
have allowed ourselves be persuaded to use loyalty cards in order to obtain
discounts. We carry various items that have an RFID chip7 and most of us
have a smartphone. Without too much exaggeration, we can be said to live
in a ‘surveillance society’, where governments and private companies can
keep track of everything we do. This, of course, raises concerns, also for the
exercise of the right to freedom of expression.8
In theory, we have given permission to collect and process all of this ‘data
exhaust’,9 by agreeing to privacy policies and accepting bulky general terms
and conditions. Even if we cannot be bothered to read everything and
thus give blanket permission for things that we cannot oversee, we are still
responsible for having taken the risk of clicking ‘I agree’.
Some of us may feel that we have ‘nothing to hide’10 and may welcome
any ‘enhancement of our user-experience’ by our personal data being shared
by ‘selected business partners’. What is wrong with that? On the internet,
there is no privacy, so get over it.11 Privacy is an old-fashioned notion, for
old people and nerds who do not know how to have fun. Privacy advocates
sometimes have difficulty in avoiding a paternalistic tone: I know you do not
do so, but you really should care about your informational privacy.
However, privacy is not about hiding things that one may find embarassing
or that may be used against us. The questions is not what you want to hide,
but what you want others to know about you. If someone asked me what I
had for breakfast this morning, my reaction would be: why are you asking?
Why do you want to know? Really, it is none of your business!
7 RFID stands for: Radio Frequency Identification. RFID chips are tiny chips that may be part of
various items, and that have a unique identification (thereby possibly identifying the user carrying
them).
8 LaRue, F., ‘Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression’, UN Doc. A/HRC/17/27, at paras. 78-99.
9 Mayer-Schönberger and Cukier 2013, at p. 113.
10 Solove, 2007.
11 Quote attributed to Scott McNealy, see en.wikipedia.org/wiki/Scott_McNealy.
380 Dogs on the internet: equality and human rights
3. Freedom of expression
Freedom of expression is sometimes considered as the cornerstone of
modern democrary. Democracy presupposes the ability to make well-
informed choices, which requires free access to information, the press living
up to its role as a public watchdog, and an open, uncensored, unrestricted
public debate. The UN Special Rapporteur on freedom of expression Frank
LaRue noted: ‘The right to freedom of opinion and expression is as much
a fundamental right on its own accord as it is an ‘enabler’ of other rights,
including economic, social and cultural rights, such as the right to education
and the right to take part in cultural life and to enjoy the benefits of scientific
progress and its applications, as well as civil and political rights, such as the
rights to freedom of association and assembly. Thus, by acting as a catalyst
for individuals to exercise their right to freedom of opinion and expression,
the Internet also facilitates the realization of a range of other human rights.’14
Again, there is a fundamental difference in approach across the Atlantic.
The US embraces the free marketplace as an ideal model, allowing for few
4. Equality
The famous cartoon referred to in the title strikingly illustrates the fact that
users on the internet cannot only be anonymous, but also their location,
sex, age, physical characteristics etc. can be unknown. This means that
internet users have the opportunity to free themselves from some of the
constraints they experience in everyday life, such as their location, sex, age
and physical characteristics: empowerment, liberation and also equality in
an unprecedented sense. An elderly, homosexual, shy, overweight American
male can present himself in social interactions online (virtual worlds, online
communities) as a young, ambitious Lithuanian businesswoman-to-be. In
this sense, internet users are equal, and equally free.
The downside of an unfettered, anonymous freedom of expression is that
some people may become defenceless victims of very serious forms of
harassment, identity fraud and false accusations. These victims may rightly
be called the ‘outlaws’ of modern times, as the law cannot effectively protect
them.19 Some people are worse than dogs, ‘homo homini lupus’, and
apparently this dark side of humans easily surfaces when they feel outside
the reach of law enforcement.
Not every person on the planet has internet access, and not everybody who
does have access is tech-savvy enough to make optimal use of it. This so-
called ‘digital divide’ creates a new inequality, between new ‘haves’ and ‘have
nots’.20 Those with no effective internet access may with good reason feel
excluded, not just from niceties and extras, but also from basic facilities that
are required in modern life. Maybe a right to internet access, just like a
right to education, work, health-care, etc. should be acknowledged as a new
human right?21
19 Very disturbing examples are the cases of Amanda Todd (see www.foxnews.com/world/2012/10/12/
canadian-teen-found-dead-weeks-after-posting-wrenching-youtube-video-detailing/) and in the
Netherlands the case of ‘Freek’ (see mijnkindonline.nl/freek/english).
20 See, among others, Norris 2001.
21 See on this issue, among others: Best 2004 and Cerf 2012.
Tina van der Linden-Smith 383
5. Conclusion
Even if my cat enjoys playing a mouse game on the iPad, dogs can be chipped
and tracked, and cows are fed and milked by automated systems, the use of
the internet is reserved for humans (possibly through the use of software
agents or bots). ‘All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood.’22 The challenge for the law is to
make this true in an environment of anonymous, global communication.
Hopefully, this brief overview of some issues suffices to show that it is far
from clear how human rights protection on the internet could be realised. We
need a fundamental rethinking of what exactly these rights mean and how
they can be enjoyed or enforced in a society where technology is everywhere.
And this rethinking is a task for legal scholarship. Let’s do it!
22 Article 1 UDHR.
384 Dogs on the internet: equality and human rights
BIBLIOGRAPHY
Ambrose, M.L., ‘It’s About Time: Privacy, Information Life Cycles, and the Right
to be Forgotten’, Stanford Technology Law Review, Vol. 16, 2013, pp. 369-833.
Best, M.L., ‘Can the internet be a human right’, Human Rights & Human Welfare,
Vol. 4, No. 1, 2004, pp. 23-31.
Cerf, V.G., ‘Internet access is not a human right’, New York Times, 4 January 2012.
Howard, P. N., Duffy, A., Freelon, D., Hussain, M., Mari, W., and Mazaid,
M., ‘Opening closed regimes: what was the role of social media during the Arab
Spring?’, PITPI, Seattle, 2011.
MacKinnon, R., ‘Flatter world and thicker walls? Blogs, censorship and civic
discourse in China’, Public Choice, Vol. 134, No. 1-2, 2008, pp. 31-46.
Mayer-Schönberger, V. and Cukier, K., Big data: A revolution that will transform
how we live, work, and think. Houghton Mifflin Harcourt, Boston, 2013.
Norris, P., Digital Divide: Civic Engagement, Information Poverty, and the Internet
Worldwide, Cambridge University Press, Cambridge, 2001.
Prins, C., ‘When personal data, behavior and virtual identities become a commodity:
Would a property rights approach matter?’, SCRIPTed, Vol. 3, No. 4, 2006,
pp. 270-303.
Rosen, J., ‘The right to be forgotten’, Stanford Law Review online, Vol. 64, 2012,
pp. 88-92.
Solove, D.J., ‘‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy’,
San Diego Law Review, Vol. 44, No. 4, 2007, pp.745-772.
Warren, S.D. and Brandeis, L.D., ‘The right to privacy’, Harvard Law Review,
Vol. 4, No. 5, 1890, pp. 193-220.
Westin, A.F., Privacy and Freedom, Atheneum, New York, 1968.
Part IV
1 The Dutch and Flemish journal for socio-legal studies Recht der Werkelijkheid (‘Reality’s Law’)
recently devoted a special issue to ‘The Actor as a Factor in the Development of Law’ (De actor als
factor in de rechtsontwikkeling, 2013 no. 3). It has articles devoted to, for example, Raphael Lemkin
and his involvement in the introduction of the concept of genocide, Beate Sirota’s involvement in
gender equality in Japan, Eddie Mabo in indigenous land rights in Australia, and Hugo Sinzheimer
in collective agreements in labour law.
2 See Foqué and ’t Hart 1990.
388 The roots of Dutch strategic human rights litigation: comparing ‘Engel’ to ‘SGP’
3 See the special issue in the Utrecht Law Review, Loenen, van Rossum and Tigchelaar 2010 and
van Rossum 2012.
4 The Supreme Court (HR 9 April 2010, ECLI:NL:PHR:2010:BK4549) stated that the SGP
violated the Dutch Constitution and several treaties. See also Loenen 2010. On 10 July 2012 the
European Court declared the application of the SGP inadmissible.
5 See www.clara-wichmann.nl.
6 I presume that ‘enemies’ of human rights law are needed as well, to prevent possible derailment.
See Larson, van Rossum and Schmidt 2014.
Wibo van Rossum 389
seem obvious, but it is not. In this contribution I want to reflect on this role
of actors, institutions and social ideas in developing human rights law by
describing the process that led to the very first case against the Netherlands
at the European Court of Human Rights (ECtHR or the Court): the Engel
case.7 The underlying question in the Engel case was whether conscript
soldiers could fully invoke human rights, especially the fair trial principle;
in other words: whether conscript soldiers are legally equal to other human
beings. Apart from this central question, the case just as importantly gives
insights into the role of activist lawyers, their supporters, and dominant
views in society.
7 ECtHR, Engel and others v. the Netherlands, 8 June 1976, (Appl.nos. 5100/71, 5101/71, 5102/71,
5354/72, 5370/72). Actually five applicants had lodged their application with the Commission in
1971, namely Cornelis J.M. Engel, Peter van der Wiel, Gerrit Jan de Wit, Johannes C. Dona and
Willem A.C. Schul.
390 The roots of Dutch strategic human rights litigation: comparing ‘Engel’ to ‘SGP’
Table 1
8 Article 14 on the prohibition of discrimination hardly ever figures prominently in human rights
cases. This is because the anti-discrimination principle could only be used to ‘back up’ claims
on substantive rights based on other articles of the Convention (see de Vries 2013, especially
chapter 8). Recently ‘Protocol No. 12 to the Convention for the Protection of Human Rights and
Fundamental Freedoms’ of 4 November 2000 provides for a general prohibition of discrimination.
Wibo van Rossum 391
Alkema, who turned out to be the ‘hidden driving force’ behind the Engel
case.10
Evert Alkema had studied law in Groningen and started working in Leiden
at the European Institute of the university in 1966.11 In that institute he
had to work on the ‘leftovers’ from his colleagues, which basically amounted
to him studying human rights and the rest of the world outside Europe.
He became a specialist in the European Convention and, among others,
had contact with the Dutch judge at the European Court at that time, Van
Asbeck. Van Asbeck wanted to promote the Convention but as a judge had
never had a case. According to Alkema, the Commission was the biggest
hurdle to overcome, in general but also in the Engel case.12
10 While writing, I learned that Evert Alkema was one of the supervisors of Titia Loenen’s PhD
research.
11 I interviewed Evert Alkema about his role in the development of human rights in the Netherlands
on 30 November 2011.
12 Apparently at one moment in the 1970s the judges of the Court complained publicly that the
Commission allowed too few cases to pass through.
13 Another good case was ECtHR, X and Y v. The Netherlands, 26 March 1985 (Appl.no. 8978/80),
which came about in more or less the same vein.
Wibo van Rossum 393
instructed him how to push the minister in order to make him submit
that the Dutch government would not resist if the Commission would
accept the complaint. The minister gave the right answer and I took care
that that answer eventually arrived with the Commission, because then
the Commission had one argument less to consider. And then we went
to Strasbourg!
The Engel case was thus carefully constructed or maybe one should say
‘orchestrated’ by the academia, more specifically by one academic.14 He
sensed how to play the game and get past the difficult posts. The advantage
was that the lawyer Enno van der Schans was involved.15 He knew the
VVDM from the inside out. He had studied law and then fulfilled his duty
as a conscript soldier. He was idealistic and not an anti-authoritarian activist,
as he said himself. He became very active in the VVDM by helping find
legal ways to improve the inferior position of soldiers. Soldiers sometimes
refused to follow orders, their hair was too long, and their public writings
encouraged resistance so they met with interference from the authorities
etcetera. In the legal commission of the VVDM, the idea came up that it
should not be allowed to treat soldiers differently from ordinary human
beings. Van der Schans:
Human rights were not yet ‘alive’ in society. The Netherlands had not yet
discovered them. But in that Commission we had an eye on Strasbourg.
There were contacts between our head Reintjes and Bergamin who worked
in Rotterdam and Alkema in Leiden. Alkema was very young then but he
stood behind us and helped us. They decided to collect some cases for a
pilot case for the European Court. In 1970 my conscript duty was done
and I started a career as an idealist lawyer in a rather large, liberal law
14 Academic life and legal practice with some people are intermingled. For example, the later
European Court judge Egbert Myjer (2004-2012) first worked at Leiden University in the criminal
law department, while he was inspired by his Utrecht law professor Toon Peters who put much
stress on the humane character of law and the need for human rights. Myjer left academia in 1979
to work at the judges’ academy and as a part-time judge in Zutphen. From 1981 he was a full-time
judge and from 1991 worked full time at the public prosecution office. As a judge in Zutphen
he had acquired the nickname ‘The Supreme Court of Zutphen’. In the meantime he was also
appointed endowed human rights professor at the Free University in Amsterdam (in 2000).
15 I interviewed Enno van der Schans about his role in the Engel case on 1 September 2011.
394 The roots of Dutch strategic human rights litigation: comparing ‘Engel’ to ‘SGP’
firm. I still had contact with the VVDM so that is probably why they
contacted me in 1972 and asked me to take this case. Reintjes had started
it in 1971 and 1972 with the Commission, but they said that this needed
to be done by a lawyer. I needed to think for some time because all I
dealt with was criminal law, divorce, and contracts. But my idealism said
to go ahead. After all I had also initiated, together with a small group of
young lawyers, the first ‘piket service’, which entailed giving legal aid to
suspects as early as possible at the police station. I went to Leiden to talk
to Alkema, and I spent days at the European Institute in Amsterdam to
study. Fortunately my employer supported me. They could not help me
but they gave me all the space I needed because I continued to deal with
my ordinary cases well.
COC, the Dutch organization for gays.16 At the beginning of the 1970s
they wanted to change their by-laws in order to legalise the admittance
of married people, who were excluded from membership. Married! In
those days those by-laws had to be approved by the minister of justice
and he just said, ‘I will not agree to that!’ The appeal was with the Crown
and I said to their lawyer that he had to argue that the Administrative
Litigation Division of the Council of State was not a tribunal in the sense
of Article 6 of the Convention. He did not dare to do this. He said ‘Mr.
Alkema, I have to plead there again one day’. In the end the case did not
make it to Strasbourg. The general meeting of the COC decided not to
pursue the case, because they did not want to damage the liberal and gay-
tolerant image of the Netherlands. ‘Suppose the Netherlands would be
condemned for violating the human rights of gay people’, they said, ‘then
the progressive image of our country will be gone.’
Apart from the societal context, the right lawyer at the right time, and
support from academic circles, the Commission and the Court themselves
also helped in facilitating their discovery. Van der Schans, for example,
mentioned that the administration in Strasbourg was very helpful in
providing information, forms for legal aid, it reimbursed travel costs, and
other forms of help. Members of the Commission took their time to provide
information about their roles and the procedure. The Commission also
made clear that they found the case important not only because it was the
first case against the Netherlands, but also because it was a matter of great
interest for all conscript soldiers in Europe. The Court also seemed eager to
‘settle its position in Europe’, said Van der Schans, and they wanted to show
this ‘by handling the case with all thirteen judges and not just five’. Van der
Schans also said that the head clerk of the Court signalled to him that it
would please the Court if he would ask permission to argue the case himself.
The Court wanted to strengthen the position of the claimants by allowing
them have their own lawyer. Van der Schans was officially merely an assistant
with the Commission, but granting him the right to argue the case would set
the procedural rules in motion. Van der Schans was also signalled to ask the
Court to allow for his pleadings to be made in Dutch.
For the hearing in Strasbourg, Van der Schans asked Alkema to join him.
He also managed to persuade the five ex-soldiers to come to Strasbourg
too. ‘They were on the front row. The Court asked me all kinds of detailed
questions about who had said what and how much pressure had been exerted
on the soldiers. I could ask them during a break and so directly had the
answers.’17 Alkema recalled that the soldiers held up a clenched fist to show
that they still had a fighting spirit, and that despite the unruly times with
the Baader-Meinhof Group and other violent movements, there were no
security measures at all at the Court.
17 Note that the case was constructed by legal professionals, and that the soldiers themselves – even if
the case bears their name – were hardly involved. See for that same mechanism of legal professionals
‘juridifying’ social conflicts in order to get them to the Supreme Court, Bruinsma 2010.
18 Alkema for example said that at the court session certain people from Switzerland were extensively
taking notes and back home quickly worked on bringing the law into line with the European
Convention.
Wibo van Rossum 397
has a strong voice, and it might even work as a signal to society at large that
gender equality is not always a very serious principle after all.19
Second, mobilizing human rights law sometimes needs specialists and
academics who see it as their task to further the development of human
rights and who keep track of interesting discussions in the media. When
they know there is a possibility to push a door open and to make a change,
they will organize people and suggest making a case out of it. If necessary,
their network is put to use to get media coverage and questions asked in
Parliament. This is true not only of human rights law, but of every law that
aims to change social structures and values, like, for example, laws on the
equal treatment of men and women, the inclusion of minorities, but also
the protection of the environment.20 The Engel case is one of the first Dutch
examples in human rights law of what is usually called ‘cause lawyering’,
‘strategic litigation’ or ‘public interest litigation’, that has today become a
well-known practice and strategy.21
Third, the use of human rights law needs ‘the right time’. Without the
emancipatory and flower-power youth movement in the 1960s and the ‘anti-
authoritarian winds of change’, changing the status of subordinate groups
like conscript soldiers would not have become such an issue at the time.
The state realized this too and was willing to go along, even though not too
quickly. A comparison with today’s times, however, is tricky. The idea and
relevance of human rights seems to be fully settled and accepted, but at the
same time their scope and preferred impact on national law and policy is
contested. Moreover, people are aware of the fact that rights may conflict,
and that in balancing them political ideas seep through. It is not very clear,
therefore, that the ‘times were right’ for the SGP case. In fact there was a lot
of opposition against bringing the case to court. As Titia Loenen and others
made clear, there was discussion over whether playing it the ‘legal way’ was
the right way, whether the effect of ‘juridifying’ this ‘essentially political and
religious issue’ could be the alienation of a traditional minority from the
Dutch political landscape, and also whether the liberal and emancipatory
principles of the Enlightenment were being used as a fundamentalist stick
with which to beat religious minorities. As a matter of fact, orthodox religious
communities do complain about anti-religious sentiment, which is shown in
discussions on ritual slaughter, the access of openly homosexual teachers to
religious schools, vaccination in religious communities, and civil servants
refusing to conclude same-sex marriages.22 It may well be that the dominant
discourse in society today favours equality over religious freedom, which
may have been supportive for the SGP case in the background. Support,
however, was not as clear-cut as in the 1970s for the conscript soldiers’ case.
Fourth, the Court as a social institution in the 1970s helped in promoting
its own discovery by showing a great willingness to help. The administration
provided documents on legal aid and the reimbursement of travel costs, and
all kinds of information on procedure. The Head Court clerk even took the
time to convene with Van der Schans about his expectations and about what
he should request in order to further the procedural rules of the Court. The
friendlier the Court shows itself, the more willing lawyers are to take the
next steps, and the more it attracts attention. This is one thing that has really
changed in the times of the SGP case. Recently, both the Supreme Court of
the Netherlands and the ECtHR were given new procedural rules in order
to be able to deal with their overwhelming popularity. The roots of the Engel
case have apparently grown into a dense bush in SGP times. Outsiders are
therefore still needed: no longer to get human rights law going, but to help
push through the bushes of procedural rules that in some cases may hinder
access to the court.
22 There is an abundance of Dutch legal literature on these topics, but the perspective of religious
minorities themselves is mostly absent. See for an exception for example Oomen, Guijt and Ploeg
2010. The ‘anti-religious atmosphere’ might be overstated, since in a recent survey Christians
hardly reported any discrimination because of their religious conviction (while Muslims did). See
Andriessen, Fernee and Wittebrood 2014, at p. 76.
Wibo van Rossum 399
BIBLIOGRAPHY
Barbara Oomen
1. Introduction
One interesting new development in human rights law is the explicit local
engagement with international human rights.1 The city of San Francisco,
for instance, passed a CEDAW ordinance in 1998 promoting the equitable
treatment of all persons by the city government.2 As a result, labour conditions
for women improved and streets were made safer.3 Other American cities,
like Portland, Oregon and Berkeley California, have followed suit.4 A part
of the rationale behind these developments is to stimulate nation states
to ratify unratified treaties, as is the case with the CEDAW in the United
States. An important reason, however, is a desire to strengthen the meaning
of international human rights at the local level.5
In line with Professor Loenen’s long-standing interest in the practice of
human rights law, this note will sketch how local authorities increasingly
engage with international human rights to subsequently explore the
relationship between the localization of human rights and equal treatment.
Here, it is necessary to first give a brief overview of the increasing relevance of
international human rights at the local level in general, and to offer specific
Dutch examples pertaining to the UN Convention on the Rights of Persons
1 This note is based on ongoing research into human rights and the city. The research has been
funded by the Interuniversity Attraction Poles Programme initiated by the Belgian Science Policy
Office, more specifically the IAP ‘The Global Challenge of Human Rights Integration: Towards a
Users’ Perspective’ (www.hrintegration.be) and Platform31/Nicis.
2 With this ordinance, the city expressed commitment to realize the CEDAW rights at the municipal
level and put in place a number of measures to achieve this. Lozner 2004; Wexler 2006.
3 Singh 2005, at p. 547.
4 Soohoo, Albisa and Davis 2007.
5 Oomen and Baimgartel Forthcoming.
402 Rights and the city: does the localization of human rights contribute to equality?
with Disabilities (CRPD). This, then, forms the basis for an assessment of
the extent to which such developments strengthen equal treatment.
Before this, however, it is necessary to dedicate a few words to the
interrelationship between human rights and equal treatment, and their
institutional rapprochement. The complex relationship between human
rights in general, and equal treatment in particular, has often been explored.6
Equality, like human dignity, is one of the pillars of the entire human rights
system. As such, it is connected to all other rights. This is in line with the
approach, for instance, initially taken in the European Convention on
Human Rights, in which Article 14 prohibits discrimination with respect
to the rights and freedoms in the Convention.7 Similarly, virtually every
human rights treaty includes a specific non-discrimination clause, as does
the Universal Declaration of Human Rights. Over the years, the principle of
equal treatment and the right to non-discrimination have increasingly grown
into independent rights.8
The crowning glory of this development in the Netherlands was the inclusion
of a non-discrimination clause as Article 1 of the Dutch Constitution of
1983, its specification in the Equal Treatment Act and its institutionalization
with an Equal Treatment Commission, causing some observers to speak of a
‘super-right’.9 Over the years, however, there seems to have been a tendency
to institutionally reconnect equal treatment and other human rights. The
Dutch Constitutional Review Commission, for instance, proposed to
commence the Constitution with a general provision stating, amongst
other things, that the government respects and guarantees human dignity,
fundamental rights and fundamental legal principles.10 The Equal Treatment
Commission became a general National Human Rights Institution in 2012.
It could well be that, in the foreseeable future, local anti-discrimination
bureaus will also be transformed to include attention for all human rights.
Whereas there are no explicit policy proposals to this effect, this would be in
line with the increase in the explicit local engagement with human rights to
be discussed in the following sections.
11 CG 18(6), 2010, The role of local and regional authorities in the implementation of human rights,
at para. 79.
12 The Convention on the Elimination of All forms of Racial Discrimination. On Chicago, and other
US examples, see: The Human Rights at Home Campaign 2012.
404 Rights and the city: does the localization of human rights contribute to equality?
engage with the whole catalogue of international human rights. Utrecht, for
instance, wrote a policy report in which it compared ten policy fields, dealing
with topics ranging from poverty to gay rights, with treaty obligations in
the fields concerned.13 In some cases the development is strongly NGO-
driven, and follows the methodology of the People’s Decade on Human
Rights Education (PDHRE) in setting up a human rights council with all
stakeholders as a first step.14 Cities often also take the step of signing the
European Charter for the Safeguarding of Human Rights in the City.15 In
terms of the practical implementation of the commitments there are cities
with human rights commissions, but also with human rights budgeting or
another form of monitoring.16
Urban actors propose a variety of reasons for turning towards human rights.
For one thing, they consider human rights to be a promising, inclusive
standard on which to base urban policies.17 They also find, in human rights,
a discursive umbrella under which to unite a variety of actors and interests.18
Another motivation for explicit local engagement with international human
rights can be that reference to international obligations strengthens the
local position in deviating from national policies, for instance in the field of
immigration law.19 The Hague, for instance, refused to implement national
budget cuts on domestic support for people with disabilities in referring to
the European Convention on Human Rights, the European Social Charter
and the CRPD.20 Through an emphasis on human rights cities also access
international networks, engage in city marketing, open the way to sources of
funding and give their cities a more cosmopolitan appeal.
A key question in these developments is to what extent the fact that some
cities, these days, explicitly engage with human rights whilst others do not
contributes to equality in general and to what extent these policies exacerbate
differences between urban and rural areas. In order to make this assessment,
the following section will first focus on one case in particular.
23 See www.vnverdragwaarmaken.nl.
24 The CRPD did lead to an amendment to the Electons Act (Kieswet) and the Equal Treatment
of People with a Disability and a Chronic Disease Act (Wet Gelijke Behandeling op grond van
Handicap of Chronische Ziekte), cf. Concept Wet tot uitvoering van het op 13 december 2006 te
New York tot stand gekomen Verdrag inzake de rechten van personen met een handicap (Trb. 2007,
169). See for the consequences of ratification: Studie- en Informatiecentrum Mensenrechten
2012.
25 See the lack of any reference to the CRPD in the advice given by the Council of State on the
Participatiewet, the Wet Maatschappelijke Ondersteuning and the Jeugdwet and the critique by,
for instance, the Coalition for Inclusion on www.vnverdragwaarmaken.nl.
26 Platform VG 2013.
27 Motion 10-104, 2a, 7 June 2010, on implementing the right to vote for persons with a mental
disability.
28 This was decided via motion 11-143, point 22, on 7 November 2011.
Barbara Oomen 407
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Barbara Oomen 409
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About the authors
Barbara Oomen holds a chair in the sociology of human rights at Utrecht University,
and is the dean of University College Roosevelt. Her research concerns the
interaction between law, culture and society with a specific interest in human
rights. Recent projects include research on human rights cities and human rights
education. Her book ‘Rights for others: the slow home-coming of human rights in
the Netherlands’ was published with Cambridge University Press in 2014.
Jos Philips is lecturer in political philosophy and ethics at the Ethics Institute of the
University of Utrecht (The Netherlands). He research interests are in the areas of
global justice, human rights, and sustainability. He has published various articles
on individual responsibilities in relation to poverty, on NGO responsibilities, and
on conceptual questions of human rights. Together with Joel Anderson he edited
Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications
of the Convention on the Rights of Persons with Disabilities (SIM, 2012).
Wibo van Rossum is assistant professor in socio-legal studies at Utrecht University
School of Law. His main interest is in the field of multiculturalism and the law,
especially focusing on if and how the legal profession adapts to changes in the
ethnic and religious make-up of society, and whether their adaptation is in line
with opinions and practices within minority groups. He is member of the board
of the Dutch and Flemish Socio-Legal Studies Association.
Ashley Terlouw is a professor of sociology of law at the Radboud University
of Nijmegen, and has the final responsibility for the Institute of Sociology of
Law, the Centre for Migration Law and the Institute for the Legal Professions
at the law faculty. She is co-founder and member of the board of the Dutch
Association for Migration Research and chair of the Interdisciplinary Research
Group on Inclusion and Exclusion. She has published in the fields of asylum,
equal treatment questions and the functioning of courts and judges. Besides she
functions as replacement judge at the District Court of Gelderland.
Jet Tigchelaar works as lecturer at the Institute of Constitutional Law,
Administrative Law and Legal Theory, Utrecht University School of Law. She
is a member of the Utrecht Centre for European Research into Family Law
(UCERF). Together with Marjolein van den Brink she wrote a report for the
Dutch Ministry of Security and Justice on legal sex registration (publication
expected Spring 2015).
Lucy Vickers is professor of law at Oxford Brookes University. Her main research
area is the protection of human rights and equality within the workplace,
with a focus on religious freedom. She is author of Religious freedom, religious
discrimination and the workplace, (2008) Hart Publishing, Oxford, and a
414 About the authors