J.W.A. Fleuren

The Application of Public International Law by Dutch Courts

The relationship between public international law and the domestic law of the Kingdom of the Netherlands is deeply rooted in the monistic tradition. According to the Dutch Constitution self-executing provisions of treaties and of resolutions of international organizations are binding upon natural and legal persons and have supremacy over national law, including the Constitution itself, Acts of Parliament and subordinate legislation. In this article the ways in which the Dutch courts deal with self-executing provisions, non-self-executing provisions and rules of customary international law are explored. For a long time the developments in the relationship between international and Dutch law have been dominated by the question of how to balance the separation of powers and the duty of the courts to apply public international law. But since the 1990s yet another problem has been gaining attention. There is growing concern about the question whether legal and natural persons are adequately protected by the Constitution against instruments of public international law (such as, for instance, decisions by UN sanctions committees) which may interfere with their basic rights, such as the right to a fair trial.

Recent developments regarding the direct and indirect application of treaties by Dutch courts. Fresh approaches to self-executing, non-self-executing and non-binding international law

In 2014, the Supreme Court of the Netherlands switched from a binary to a contextual approach to the question whether a treaty provision has direct effect . In this contribution, the new approach is discussed in a historical perspective and linked with some other developments in Dutch case law that further enhance the possibilities for the national courts to enforce treaties: the interpretation of treaty provisions by means of non-binding but authoritative decisions of international supervisory bodies and the treaty-consistent interpretation and application of domestic law .