Credits: Nederlands Juristenblad

This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR. 

By: Jolanda Andela

Official Dutch government policy acknowledges that human rights are indivisible, interrelated and interdependent (see here and here). This implies that all human rights are of equal importance and are (to be) equally protected. Nonetheless, in practice the legal protection of economic, social and cultural rights lags significantly behind. This relates to issues such as participation, access to information as well as justiciability of and legal accountability for violations of these rights.

In an exploratory analysis of the legal protection of economic, social, and cultural rights, as part of the Netherlands Institute for Human Rights (the Institute) programme on 'livelihood security' (in Dutch: 'bestaanszekerheid'), meetings have been held with civil society organisations, experts and other relevant stakeholders. During these meetings, the issue of justiciability emerged as a serious concern. It was frequently emphasised that, beyond efforts on, for instance, policy work, capacity building and research, legal mechanisms are needed to be able to address situations where violations of these rights occur or when the state fails to fulfil its obligations. Without such mechanisms, individuals and communities will continue to face systemic barriers to fully realising their economic, social, and cultural rights. In this contribution, I will examine the nature of these problems and propose potential remedies.

Enforcement in judicial proceedings: Pitfalls

Whereas economic, social and cultural rights are legally recognized within the Dutch legal context, their potential enforcement in judicial proceedings remains limited (see here). For instance, the Dutch Constitution captures some economic and social rights in Articles 18(2) and 19 to 23, focusing on employment and labour matters, livelihood security and social security, environment, public health, housing, self-development and education. Nonetheless, in case one's economic or social rights have been violated, and a respective underlying Dutch law could and would be invoked before the judiciary, the system does not allow for constitutional review (see here). In this regard, judges in the Netherlands are not permitted to legally assess whether a law violates the economic or social rights enshrined in the Constitution. Indeed, while the ban on constitutional review may potentially be lifted for civil and political rights (see here), it is likely that economic and social rights will be excluded from such a development. Although on various occasions, government representatives have raised the idea of making it possible also for economic and social rights (see here), the perceived concerns continue to outweigh the perceived benefits. Among the primary concerns raised are the financial implications, the perceived overreach of judicial power, and the argument that the economic and social rights as currently articulated in the Constitution are not conducive to judicial scrutiny (see e.g., here). While some of these concerns are not without merit, the issue is far more complex and dynamic than it (initially) appears. Further, most of these economic and social provisions in the Constitution are formulated as 'object of concern of the government' (in Dutch: 'voorwerp van zorg der overheid') rather than individual 'rights' to which people are entitled. As such, it has been argued that the formulation of these provisions points towards policy commitments, leaving individual claims – subject to judicial review – aside (see here).

Finally, while provisions laid down in human rights treaties can be invoked before a court, obstacles exist when it comes to economic, social and cultural rights. In accordance with Article 93 of the Constitution, provisions of international law that are by their nature binding on everyone are directly applicable in the national legal order. While the direct effect of civil and political rights is generally accepted, that is not the case for economic and social rights. Upon ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) for instance, the government stated that the rights enshrined in the Covenant do not, in principle, possess the character of directly applicable provisions under Dutch law (see here, here and here). They must be implemented through domestic legislation before being enforceable. So far, courts have hardly ever accepted the direct effect of ICESCR provisions (see e.g., here and here). As a result, individuals whose economic, social or cultural rights have been infringed upon face significant obstacles in seeking judicial review of these (international) provisions before Dutch courts.

The importance and opportunity of justiciability of economic, social and cultural rights

Notwithstanding the aforementioned observations, it may be argued that the state has a particular vested interest in enhancing the legal protection of economic, social and cultural rights. A study by the Institute has shown that the Dutch population is in particular concerned about problems related to poverty, housing and climate (see here). It has demonstrated that there is a need – that is felt by society – for stronger protection of economic, social and cultural rights (see here). The significance of these rights, and the potential risks when they are inadequately safeguarded, is starkly illustrated by the recent childcare benefits scandal. As the Institute observed in September 2024 (see here): "recent parliamentary investigations into the childcare benefits scandal show that the enforcement of social rights was inadequate and that legal protection was insufficient." It has illustrated how the protection of economic, social and cultural rights can go awry in practice, despite their formal recognition.

Apart from the unlikely prospect of a lift on the ban on constitutional review of economic, social, and cultural rights, there are other potential avenues to enhance the justiciability of these rights. One such avenue could be the ratification of the Optional Protocol to the ICESCR, which provides for a (non-binding) individual complaint mechanism. Accordingly, individuals could submit alleged violations of their economic, social and cultural rights to the Committee on Economic, Social and Cultural Rights. Whereas the Netherlands already signed the Optional Protocol in 2009 (see here), it has not yet ratified the Optional Protocol and may not do so in the foreseeable future. As a result, individuals subject to its jurisdiction are unable to seek a remedy before the Committee. Generally speaking, there are concerns as to the financial implications of those rulings and how they eventually could lead to adjustments in legislation and policy (see here).

However, it is worth questioning whether these general concerns effectively and fully capture the implications of the Optional Protocol. Unlike the removal of the ban on constitutional review of economic and social rights for instance, which may have more far-reaching consequences, ratification of the Optional Protocol would generally involve fewer significant disruptions. For instance, while the individual complaint mechanism is authoritative, the rulings themselves are legally non-binding, meaning the state retains significant discretion in addressing the underlying issues. Furthermore, a complaint can only be considered by the Committee after all domestic remedies have been exhausted (see here). This gives the state ample opportunity to resolve the issues within its own legal framework before any external intervention. Ultimately, the purpose of the Optional Protocol is not to confront the state but to guide it toward fulfilling its obligations under the ICESCR, to which the Netherlands is legally bound (see here). Although but an example of a mechanism that would allow for justiciability and concretisation of these rights, it is an important one – meriting continued attention.

While there remains general resistance to the enhanced justiciability of economic, social, and cultural rights within the Dutch legal system, it would lead to a clearer understanding of the expectations placed on the state, promoting greater legal certainty and fostering a more effective response to challenges relating to economic, social and cultural rights in the Netherlands. Without such mechanisms, the practical effectiveness of these rights remains limited, potentially leaving individuals subject to the Netherlands’ jurisdiction vulnerable to unmet needs and exacerbating social issues, as seen in past crises like the childcare benefits scandal.

Bio:

Dr. Jolanda Andela is a policy advisor human rights at the Netherlands Institute for Human Rights. She is the project leader on ‘legal protection’ within the program on ‘livelihood security’ (in Dutch: ‘bestaanszekerheid’). Before that, she was a researcher and lecturer at Erasmus School of Law, where she completed her PhD research on criminal responsibility for conflict-driven starvation. She was the course coordinator of public international law and has specific expertise and interest in international human rights law, international humanitarian law and international criminal law.