Will the Senate save the referendum?
Cabinet wants to scrap referendum. Privacy First raises the alarm.
Abolishing referendum may violate international law.
Despite the successful referendum on the new Intelligence and Security Services Act, the Dutch cabinet wants to abolish the consultative referendum. However, a national referendum is a democratic achievement that cannot simply be abolished without legitimate cause. Such abolition in that case might violate international law. Earlier this year, Privacy First unsuccessfully alerted the House of Representatives to this. Privacy First then addressed a similar warning to the Senate, where there is relatively more legal (including international law) knowledge. The Senate subsequently invited Privacy First to participate in the expert meeting about the Advisory referendum repeal law on 27 March this year. However, Privacy First was unable to attend that day due to a stay abroad, whereupon the Senate (partly on the advice of Privacy First) invited Prof Fred Soons to discuss the international law aspects surrounding the abolition of the advisory referendum, including in particular the aspect of international self-determination in an internal (democratic) sense. Prof Soons' written contribution (position paper) can be found at HERE in pdf. A full video registration and written report available. A similar, critical expert meeting location (video). Following both expert meetings, the Senate on 24 April last. numerous critical questions to the government, including whether repealing the consultative referendum violates the so-called regression prohibition in the International Covenant on Economic, Social and Cultural Rights. Privacy First awaits the answers to these questions with interest.
New referendum on Donor Bill
While the Senate is considering the possible abolition of the consultative referendum in the coming weeks, a new referendum is already in the pipeline: the referendum on the new, controversial Donor Act. Retrieved from https://referendum.nl you can submit your statement of support for this referendum. Resistance among the Dutch population to the new Donor Act is high. Privacy First therefore expects that the required number of signatures for a referendum on this law can be achieved soon.
Below is the full text of our letter to the Senate dated 8 March 2018:
In the coming period, you will debate the possible repeal of the Advisory Referendum Act. In this context, the Privacy First Foundation hereby draws your attention to an aspect of international law that so far does not seem to have been included in the parliamentary debate, but which is nevertheless highly relevant: the referendum as a form of collective self-determination. This right has traditionally been among the most powerful and comprehensive rights in the world and enjoys broad international protection. National curtailment of this right could therefore have the necessary repercussions for the Netherlands. We briefly explain below.
Referendum as a form of democratic self-determination: relevant UN conventions
In international law, a national referendum is a form (or expression) of democratic self-determination, i.e. the collective right of a people or national population to determine its own future. This right is established and developed, among others, under Art. 1 of the International Covenant on Civil and Political Rights (ICCPR) and the identical Art. 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Under the ICCPR, violations of this right can be complained about to the supervisory treaty body: the UN Human Rights Committee in Geneva. Also, the Netherlands has to periodically account to this UN committee for its overall Dutch compliance with the ICCPR in a broad sense, including (if applicable) Dutch compliance with the collective right to self-determination of the Dutch population. Thus, should your Chamber decide to abolish the consultative referendum, it is to be expected that the Dutch government will have to answer to the United Nations on this matter. The relevant Dutch periodic session at the UN Human Rights Committee is already on the agenda and is likely to take place later this year or in early 2019. This will, incidentally, also include a critical discussion of the new Intelligence and Security Services Act ('Sleep Act'), the UN Human Rights Committee already stated in May 2017 published.
Possible violation of Article 1 ICCPR and Article 1 ICCPR by abolition of referendum
The above also applies to the IVESCR and the supervisory IVESCR Committee, also based in Geneva. Under this convention, the collective right to self-determination should be continuously promoted and 'progressively realised'. So-called 'retrogressive measures' (such as abolition of an existing right to a referendum) "would require the most careful consideration and would need to be fully justified", said the IVESCR Committee in its General Comment No. 3 (The nature of States parties obligations under the ICESCR). This means that the Netherlands can only abolish the consultative referendum in a manner permissible under international law if this is done after extremely careful consideration and is (objectively demonstrably) fully justified. In this case, however, this does not seem to be the case. Thus, abolishing the advisory referendum constitutes a possible violation of art. 1 IVESCR. Under the Optional Protocol to the ICESCR, an individual or collective complaint about this can be submitted to the ICESCR Committee. Also, this issue will be able to be raised in the periodic assessment of overall Dutch compliance with the ICESCR by the ICESCR Committee. A subsequent critical opinion by the IVESCR Committee will then - in all likelihood - be followed and adopted by the Dutch judiciary. The same applies to a similar critical opinion by the UN Human Rights Committee on possible violation of Article 1 ICCPR, as the collective right to self-determination under both treaties is interpreted and applied in a similar manner.
Chance of international criticism
Apart from the former GDR, the Netherlands is the only country in the world that seems to want to abolish the referendum again after its introduction. The Netherlands thus has historical appearances against it and, partly because of this, runs an increased risk of international criticism. Privacy First therefore wishes you much wisdom and vision in your deliberations.
Privacy First Foundation
Update 11 May 2018: the cabinet has since answered the written questions from the Senate answered (pdf). As already expected by Privacy First, the cabinet denies that abolishing the consultative referendum violates the ICESCR: "[T]he cabinet [considers] the bill compatible with the ICESCR," Minister Ollongren said on p. 24. By doing so, the cabinet recognises that the IVESCR (i.e. the collective right to self-determination under Art. 1) applies to this issue. This facilitates the filing of a future complaint on this matter with the IVESCR Committee in Geneva. Privacy First reserves all rights and options in this regard.
Update 15 June 2018: the cabinet reiterated today that it does not wish to have the potential conflict of abolishing the referendum tested against the regression prohibition under the IVESCR (see Further memorandum of reply (pdf), p. 12). Such scrutiny is apparently - rightly - feared by the government.