PhD defence Anneloes Kuiper-Slendebroek
On Tuesday 19 December 2017 at 16:15 hrs Anneloes Kuiper-Slendebroek will defend her doctoral thesis 'Rechter over Grenzen' which deals with the application and interpretation of international law in Dutch private law. Supervisor is Martijn Polak, co-supervisor is Jeroen van der Weide.
International agreements are drawn up on all kinds of matters that are also relevant for the Netherlands, for example on climate change, human rights, but also agreements on consumer protection and rights and regulations in child abduction cases.
Using a number of case studies, research was carried out on the effect, interpretation and application of such international regulations in domestic law. The study of various areas of law produced certain conclusions. For example, Dutch courts are not consistent in their application of international interpretation rules, do not proceed to interpret international provisions merely because they ‘are aimed at the state’ and are wrongly influenced by EU law in the interpretation of international conventions. Improvements on these points together with other findings are presented in a flow chart.
When the government, on behalf of the Netherlands, concludes international agreements, for instance that everyone is entitled to education or equal pay at work, this does not mean that Dutch citizens can automatically claim such a right. In cases where no domestic legislation exists covering these rights, or cases where domestic legislation contravenes these rights, citizens can apply to a Dutch court to set aside the domestic legislation and to have international law take priority. This can be done for conventions and decrees of international organisations via a claim under articles 93 and 94 of the Constitution. The court then reviews whether the international convention or decree has ‘direct effect’, i.e.: if without existing in domestic legislation it can still be directly applied in the case of this citizen. The research looked at the criteria on which the court bases this ‘direct effect’, and also the cases where no direct effect is found. In the case of international provisions without direct effect, the court considers whether the convention provision can be applied in a different manner, for example in the existing national legislation or by a broader interpretation of the international provisions that can be applied directly that are similar to this provision.
Besides this direct effect, it was examined how the Dutch courts interpret and apply international law. An international treaty drawn up by many different states must be interpreted by each national court. This is done, you would think logically, from the perspective of the legal system in which the treaty is applied, but it must be considered in particular what the parties to the treaty intended with a certain treaty or what is customary in practice. In certain cases it is very important that a treaty is interpreted in a uniform way i.e. in the same way in all countries: a case in the Netherlands concerning a child that was abducted in Morocco and brought to the Netherlands must be assessed in the same way as a case in the United States about an abducted Dutch child brought to the US. It this is not done, countries - the parties to the treaty - lose faith in the treaty and its implementation and there is then not much point in concluding treaties. This research used case law to examine which international interpretation rules provide support in the interpretation of treaties. This is already done in some areas of law, but to a lesser extent in others. The aim of this part of the research is to offer a general procedure for the improvement of the interpretation of international treaties, in all areas of law.
Harmony with European Union law was also considered. Sometimes there are international treaties which have been incorporated by the European Union (EU) in EU law, or deal with a matter for which an EU regulation already exists. If an action is brought before a court concerning an international treaty or an EU regulation, the court has to consider in particular which states are party in the matter: two EU states, both bound by the laws of the EU, or one EU state and one non-EU state, and should international law be applied? One important international rule is that a state is free to determine which law it is bound by. For example, in Argentina it is not required on Argentinian territory to follow the rules of the EU concerning the regulation on reimbursements for flight delays, or the ECHR (European Convention on Human Rights). In the Netherlands a great deal of EU law is interwoven with national law as a result of the case law of the European Court of Justice and, as demonstrated by this research, also with international law to which the Netherlands is party. So sometimes an EU regulation is applied in a case where a non-EU state is one of the parties, though only international law should have been applied. Courts must be alert to this.
All these observations have been incorporated in a flow chart that is intended to help Dutch courts in these types of cases to apply the correct law in the correct manner.