Without going into a full history of this subject, the reader simply needs to know that the Dutch family reunification policy has been an atrocity against human rights (it has been condemned by Human Rights Watch as both racist and sexist), has traumatized thousands of Dutch citizens who fall in love with a non-Dutch person.
Even worse, the European Court of Human Rights, in a series of cases often decided by just one vote, has basically given the Dutch government a free hand in their abuses, with the hope that the xenophobia would wear off in The Netherlands. Well, that approach failed, and even though Rita Verdonk is no longer Minister for Immigration and Integration, the racism and illogical policies have only grown, and this government has gone even further in engaging in knowing violations of both international human rights law, European Union law, and multi-lateral treaties overseen by the Council of Europe, including the European Convention on Nationality, and the European Convention on Human Rights (ECHR).
I am writing to just make three points on this subject because Laura and I have been thinking and reading about them lately.
1. The government parties, led by the VVD, are engaged in an active campaign to undermine the European Court of Human Rights.
There have been a serious of articles in the NRC by VVD folks criticizing how Dutch judges have used the ECHR. While this type of babble may be more commonly heard in more populist newspapers like De Telegraf, it was put in the more sophisticated NRC specifically to reach Dutch judges, who are highly educated and are most likely to read NRC. Thus, one part in this movement to undermine the ECHR has been a serious of political propaganda point by the perpetrators of human rights abuses masquerading as academic editorials. I have previously rebutted the lies and inaccuracies in some of these propaganda editorials (link). Yet, they continue.
The second attack on the ECHR and human rights, has been the attempt to initiate some sort of judicial review based on the Dutch Constitution. Activist lawyers from all sides have repeatedly tried this. This would make The Netherlands move from a more democratic parliamentary supremacy model like the UK, toward a more activist legal system like the US where old, cranky judges prevent any progress and suppress the democratic will based on their outdated morals and visions for society (judges tend to be older, well-connected, reflect the ethnicity of the dominant group, and more personally conservative and reserved). What we have now is a campaign by the VVD to replace the ECHR with some sort of more conservative Dutch charter of rights, just as the conservatives in the UK are trying to do.
Another example of this attack is this guy Theirry Baudet, who has been giving speeches and writing books attacking the European Court of Human rights. Thus far, what I have seen from him is full of factual inaccuracies, logical errors and overt political dogma over any academic analysis. This is typical of attackers of the European Court of Human rights, who it seem, systematically make basic factual mistakes like confusing the Council of Europe and the European Union.
A further example is an organized campaign with support fromt he Vatican, the Catholic Church of Poland and the Orthodox church leaders who are now trying to expand their influence and undermine the European Court of Human Rights (some of their responses to Lautsi are linked here).
As for me, I think a human rights document that reflects universal human aspirations is most appropriate because human rights enforcement typically occurs when the majority attempts to violate some higher principle that is even more important than majority rule itself. Human rights needs an external less-culturally bound value system to have any meaning and power. If it is merely a national document reflecting the will of a national majority at a certain time rather than the universal aspirations of all individual humans based on the necessities of the human personality, then the Constitution/Human Rights Charter becomes no better than a parliamentary statute that seeks to bind future parliaments, which is not a proper exercise of parliamentary power in any legal system I have ever studied (it is a ancient and basic principle of law, known as 'Leges posteriores priores contrarias abrogant', that statutes passed later in time override earlier statutes).
This campaign is also evidenced by attacks in the recent Lautsi judgment by the European Court of Human Rights. In Lautsi, the Court struck down an Italian law passed during Fascist rule, that every public school must have a crucifix in it. The law was an attempt to cloak legitimacy for the fascist regime in the history and tradition of the Catholic Church. Now, while Dutch people are perfectly fine with religious images in religious schools that also happen to receive public funds, that is entirely different than mandating one religious sect's images in all schools to the exclusion of all others. No Dutch person would like a government to pass a law mandating the teaching of sharia and sharia only in all Dutch schools. The same applies to every other religion. There is not absolute ban on religious expression in public institutions, but if you want to have religious symbols in schools, it should serve a secular purpose, such as educating people about different ideas. It should not serve predominantly a religious purpose, such as educating students about one religion's doctrines (that is simply government indoctrination).
Another defense of the Lautsi outcome comes from simply looking at the text the mother relied upon in seeking to prevent religious indoctrination of her two children by the government. The relevant text is from Article 1 of Protocol 1: "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions." The mother, armed with that text and strong facts, forced the Court's hand on the issue. Conservatives, especially those that rant against judicial activism, have proposed textualism as the proper means to prevent judges inserting their own values into legal text. Textualism holds that judges should focus as much as possible on the actual text of a document and put the text above legislative intent, a teleological purposive reading of a text, and any out-comes based reasoning whereby the judge attempts to find a personally/politically practical and suitable outcome to a dispute.
Applying this approach here, it is hard to argue that the plain reading of the text provides anything but strong textual support for the mother's case. Here is is again: "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions."
A further critique of these political attacks on the European Court of Human Rights is that these groups have not proven a bias in the Court. Even if the Court was wrong in the Lautsi case, that does not prove a bias in the Court. On a Court that hears thousands of complicated cases, any scholar could pick one out where the court was to one side or the other of the European population. One could also compare the European Court to other international, regional, or national courts to show that the European Court is out of step with the proper course of human rights protection. However, that would require a rather systematic analysis. Attacking a court based on one decision only shows the opinion/position/bias of the person attacking the court, not a bias in the court itself. There are numerous bad decisions both coming out to the left and the right. However, all the systematic analyses that I have seen of the European Court of Human Rights conclude that it is far more deferential to national governments than all comparable courts, including the Inter-American Court of Human Rights, the European Court of Justice, verious national courts such as the US Supreme Court, and the international criminal courts.
For a broader documentation of these attacks on the European Court of Human Rights, and judicial independence, see Laura's post here.
The critiques of the European Court of Right and European Court of Justice's case-law on Family Reunification Rights completely misunderstands the issues. The biggest misunderstanding is that these cases are not about immigrant rights at all, they are about the rights of citizens to lead normal lives. Reactionary, nationalist parties across Europea have decried the loss of sovereignty and the intrusion into immigration policy of national governments by the EU and Council of Europe. However, these organizations have never taken any action based undermining national competence in regard to immigration policy.
Rather, the ECHR has merely insisted that the Member States must minimally take into account their national governments' own citizens interests in living normal and minimally happy lives. The cases deal with Dutch citizens falling in love with the neighbor who happens to be an asylum seeker. Falling in love with a neighbor is a perfectly normal activity and a citizen living in a free and non-coercive society has the right for the government to then respect that Dutch citizens right to marry and form a family with the person of their choice as protected by international and national human rights documents. This position is actually completely consistent with not giving a shit about the asylum seeker or economic migrants. An intent by the judges to liberalize or change domestic immigration policies and immigrant flow numbers is not a pre-condition to holding that a Dutch person, upon falling in love with a foreigner has the right to continue to conduct an ordinary and dignified life with the person they choose to form a family with.
These family reunification cases are not about a foreigner demanding entry and residence in a country. They only appear that way for one who does not understand the issue. Family reunification cases focus on the rights of the sponsor, not the immigrant. This is why the EU Directive 2004/38 on family reunification gives equal treatment to non-EU and EU people being sponsored, because their status is based on the sponsor's rights as a citizen, not at all the immigrant's substantive rights. Indeed, the EU has consistently not only allowed, but even advanced discrimination against people from outside of the EU in its policies and laws. EU law consistently limits rights that have been declared based on one's status as a human in international law documents, to only EU citizens and explicitly allowed discrimination on the basis of nationality so long as it is discrimination against non-EU people, instead of discrimination against one sub-class of EU citizen.
These cases can only be described as activist by people who do not understand the rights asserted, by whom they are asserted, and the legal issues involved. The ECtHR and the EU has repeatedly (and in my view improperly and cowardly) deferred to national government in terms of asylum policy and economic migration. Member States have been free to directly discrimination on the basis of nationality when it involves discrimination against non-EU nationals. However, when a Dutch national or an European National asserts their clearly protected rights and, after catching the government discriminating and blocking their right to live a normal live with the person they chose to start a family with, after fighting it in the courts for five years, becomes one of those 3% of plaintiffs who can drags the European Court of Human Rights or the European Court of Justice, kicking and screaming the whole way, to recognize these clearly protected rights (or, more commonly, to merely proclaim that the applicant was correct in her arguments, but dismiss her case anyway, and then threaten to recognize a similarly situated plaintiff in a future case (but then always finding new excuses for not doing so in the future when that scenario comes along)), that is not judicial activism in favor of immigrants-- that is the delayed and partial recognition of what is left of that person's self-esteem and dignity after which, she is lucky if she doesn't simply give up and if lucky if the government ever actually implements the judgment against them.
3. Terrible Legal Analysis
The European Court of Human Rights has repeatedly dodged its duty to protect families with very poor legal analysis. Its case law has allowed the Dutch government to use the illogical argument that is a family can exist anywhere else in the world, then an infringement on the right to family life hasn't happened. This is essentially applying a least restrictive means test to the person trying to exercise their human right! A least restrictive means test of a legal analytical tool that is used to prevent governments from infringing on a person's fundamental rights unless the government proves that their actions were the only means of solving the genuine problem that they were trying to solve.
So, here is a fun little activity. I will apply the ECtHR's analysis in family rights cases to other fundamental rights cases:
'You built your church higher than you had to and/or with a bigger cross than you otherwise could have. Because you could have built your church smaller so that it would have infringed less on the society's legitimate interest in not seeing you, the government was justified in bulldozing your church.'
'You are claiming the right to exercise religion by preventing the government from demolishing your Synagogue based on an irrational hatred of Jews. However, because you could exercise your right to free expression of religion in Israel, we find that there has been no violation of the right to practice one's religion.'
'You are petitioning the Court to grant an order for the government to stop invading your home every day, beating and torturing you, and then raping your wife and daughter. However, the Court finds that because you could flee the country to avoid the human rights violation, there been no violation of your rights and the government may continue to illegally enter houses, and then torture and rape people.'
'In previous judgments upholding the government actions, this Court has said that there are limit to government actions. As such, although national governments have a a lot of discretion in this area and a margin of appreciation, they must, at the very least respect certain procedural guarantees and this court will intervene if the government does not conduct a fair balance of the rights. The government must conduct a fair balance of the government interest and the rights asserted by the individual, must act according to policies set down in advance that allow citizens to exercise their rights in a predictable way and prevent arbitrary government action, must address the arguments made by the applicant and give reasons for their rejections, allow a meaningful appeal of any decisions, must clearly state the government interest that they are asserting, and must conduct an individualized analysis of the case. In the present case, the government has done none of these things. However, we dismiss the applicant's case without further comment.'
Oh, wait, sorry, that last one was more of an actual summary of an ECHR opinion on family rights.
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