Maastricht University's violation of international law, the right to education and the right to equal treatment

I wrote last time about our rent victory because I needed to start by reporting a success. We are still in legal purgatory in regard to the other two battles, waiting until the competent authorities render their verdict. We try not to think about it too much, but sometimes it hits us that part of the foundation of our life is not very sturdy. It helps to remind ourselves that no one's really is. Certainty is always an illusion. Amazing how much we yearn for such illusions.

Around the beginning of 2010, Robert discovered the Dutch-American Friendship Treaty. This treaty was agreed upon by the two states in order to ensure their own nationals good treatment when in the other's country. The treaty is often used by entrepreneur-nationals of one country who want to operate in the other. Interestingly to us, the treaty also had a provision ensuring equal treatment in regard to fees for educational activities. Did this mean that the Netherlands had an obligation to charge Americans studying in the Netherlands the same rate it charged the Dutch studying here? Could this lead to a seven-times smaller tuition payment? It would mean the difference between 945 euro (what the Dutch and EU and EEA and Surinamese students pay for one semester) and 6708 euro (what the rest pay for one semester).

Here's the relevant treaty text:

Article XI

1. Nationals of either Party residing within the territories of the other Party ... shall not be subject to the payment of taxes, fees or charges imposed upon or applied to income, capital, transactions, activities or any other object, or to requirements with respect to the levy and collection thereof, within the territories of such other Party, more burdensome than those borne by nationals and companies of such other Party.

We thought it was pretty clear. Robert is (1) a national of either Party, namely a national of the United States. Robert was (2) residing within the territory of the other Party, namely the territory of the Netherlands.

According to Article XI, Robert "shall not be subject to the payment of ... fees ... applied to ... activities ... within the territories of such other Party, more burdensome than those borne by nationals and companies of such other Party." Translation: Robert shall not be subject to the payment of tuition fees which are more burdensome (i.e. seven-times higher) than those applied to nationals of the Netherlands.

We brought this to the attention of the University of Maastricht (UM). We asked UM to give us their interpretation of the treaty in relation to the tuition fees Robert had to pay. The first guy we talked to told us he'd get back to us. He didn't. Next, Robert talked to someone at the student service center. After a delay, we got word that the university had denied our request for the Dutch tuition rate because, as they interpreted the treaty, it only applied to Americans who owned their own business in the Netherlands. Not to simple students.

We appealed the decision to the College van Bestuur (the board of directors of the university). The way Dutch administrative law works is that, at this level, the board of directors makes the decision, but is first advised by an advice commission. It is this advice commission which lead the hearing we were invited to. There was no possibility for us to be heard by those actually making the decision, which, as we argued, constituted a violation of our right to a fair trial under Article 6 of the European Convention of Human Rights. Other problems with this hearing were the fact that it was not open to the public (also a violation of Article 6 ECHR) and that it was not held in English, even though that would have been more convenient for all involved.

Our main objection at this point was that we were never provided with the university's reply to our appeal brief. We thus had no idea what arguments the university would be putting forward and had no chance to prepare arguments in rebuttal.

Nevertheless, the hearing went extremely well. Robert presented his arguments clearly and convincingly and I interpreted to Dutch or English when necessary. The treaty-argument we raised was supported by Dutch and international human rights law which entitles individuals to equal treatment in relation to education. This wasn't just about us or just about Americans - it was about the human right to education and the obligation of all states to provide this right equally, without discrimination on the basis of race, sex, sexual orientation, ethnicity, physical disability, or nationality. If differential fees are to be applied, they should be applied based on rational grounds - such as say intent to stay or whether the individual pays taxes in the Netherlands (both of which we do).

We also presented the fact that we did of course own our own business and that even based on the university's own interpretation of the treaty, we were entitled to Dutch tuition rates.

The university replied with a new interpretation of the treaty. According to the university representative, the university had come to the realization that the treaty actually only applied to people who had their own business and who's business was engaged in educational or scientific activity which could only mean providing educational or scientific services. Further, the equal treatment in regard of fees spoken of in the treaty could only be interpreted, according to the university, as relating to situations in which the equal treatment would promote commerce.

Now, to start with, it seemed to us that even under this new interpretation we would be entitled to equal treatment. We had a business, engaged in scientific ("legal research") activity. And, it seemed to us, that equal treatment in relation to tuition fees would promote commerce - after all it would allow more Americans to study here and - after all - why does one study if not to engage in commerce after they graduate? I do not study to become unemployed afterward but to get a job.

Second, and as Robert rebutted, the university's interpretation of the treaty clearly violated one of the most basic rules of treaty interpretation: the rule of grammatical interpretation. If the text is clear, you go with the plain and simple meaning of the words - you don't start reading intentions into the text. (And yes, I brought a whole stack of law books with me so I could immediately reference this: Article 31(1) of the 1969 Vienna Convention on the Law of Treaties).

We concluded the hearing and took the train back to Utrecht. We are still waiting for an answer from the board of directors.

Related posts:

When You Win You Lose: Maastricht Still Violating International and Dutch Law

Up-date on Appeals