The law explained: on the conviction of the Netherlands for excluding adult migrants without a residence permit from basic amenities such as food, clothing and shelter. 

by Theo van Boven, Fons Coomans, Kees Flinterman and Menno Kamminga via Maastricht Center for Human Rights

The Committee of Independent Experts of the European Social Charter (ESC) has interpreted the obligations that the Netherlands has incurred under the ESC in a correct and legally justified way. It would be to its credits if the Netherlands were to execute the decision of the Committee without creating any further legal impediments. The Netherlands is known as a country that is highly committed to the protection of human rights in its foreign policy. This credibility is under pressure if the Netherlands does not also within its own borders take the human dignity of all people seriously, also of asylum seekers who have exhausted all legal remedies.
We would like to make three comments in the field of international law and human rights on the question whether the government should provide ‘bed, bath and bread’ to asylum seekers who have exhausted all legal remedies, and on the agreement that was signed between PvdA (Dutch Labour Party) and VVD (Dutch People’s Party for Freedom and Democracy) on this issue:

1. What is the role of the Committee of Independent Experts of the European Social Charter and of the Committee of Ministers of the Council of Europe?
On 15th April 2015, the Committee of Ministers of the Council of Europe accepted a resolution on complaint 90/2013 of the Conference of European Churches versus the Netherlands. The decision of the Committee of Independent Experts of the ESC had already been known for a long time. It was unanimous and unambiguous. The recently renewed discussion in the Netherlands, with an almost unbridgeable gap between coalition partners PvdA and VVD, concerned the resolution that was adopted by the Committee of Ministers on 15th April, which takes account of the report by the Committee of Independent Experts and awaits further information on the part of the Dutch government. The resolution of the Committee of Ministers, however, moreover includes some considerations that content- and purpose-wise provide food for raising the raison d’état above the core values of human rights.

The system of collective complaints of the ESC works as follows. If the Committee of Independent Experts holds that the ESC ‘has not been adequately implemented’, the Committee of Ministers shall address a recommendation to the State concerned (Article 9, Additional Protocol to the ESC concerning a system of collective complaints). The Committee of Ministers cannot change the legal judgment of the Committee of Independent Experts. This is also confirmed in the explanatory memorandum to the Protocol, which adds that the Committee of Ministers may base its decision (resolution or recommendation) on considerations of social and economic policy. It seems that the Committee of Ministers has exceeded its powers by taking it upon themselves to pass a legal judgment on complaint 90/2013.
How could this happen? The report attached to the resolution of 15th April 2015 shows that the Netherlands was anxious strongly to influence the decision-making of the Committee of Ministers. According to the Netherlands, the decision of the Committee of Independent Experts was unfounded and contra legem. It might even undermine the confidence in this Committee. This action by the Dutch government has led to the introduction of some unusual considerations in the resolution of the Committee of Ministers (a political body) that seem to oblige the Dutch government. With this approach, the Committee of Ministers deviates in the case at stake from its position in 2010 concerning an earlier complaint against the Netherlands related to unlawfully residing children in the Netherlands. In that case, the Committee of Ministers also referred to the limited personal scope of the ESC, but added significantly and explicitly that it does not relieve states from their responsibility to prevent homelessness of persons who are present in their jurisdictions, more particularly when minors are involved.

2. What exactly is the Netherlands convicted of?
On the basis of an extensive analysis, the Committee of Independent Experts has concluded that the Netherlands has violated Article 13(4) and Article 31(2) ESC by excluding adult migrants without a residence permit (‘adult migrants in an irregular situation’) from basic amenities such as food, clothing and shelter. Such amenities are directly related to the human dignity of all people, irrespective of his or her residence permit. The Dutch defence was that this category of persons is not entitled to the protection of the ESC. They would fall outside the scope of the Charter.
It is regrettable that the Netherlands, almost fifty years after the establishment of the UN Human Rights Treaties (1966), is still inclined to exclusively have the European human rights treaties as its frame of reference, even if UN treaties include further obligations. Article H of the ESC, which the Committee also refers to, stresses that the provisions of the Charter do not affect provisions of treaties that are more favourable for the persons protected.
The right of access to sufficient food, clothing and shelter arises from the right to an adequate standard of living, as laid down in Article 11(1) International Covenant on Economic, Social and Cultural Rights (ICESCR) and in Article 25 Universal Declaration of Human Rights. Everybody has this right, hence also persons who refuse to cooperate in their expulsion.

In a General Comment, the UN Committee responsible for monitoring the implementation of the ICESCR expressly provided that every State Party has a ‘minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’. Already in 2010, the UN Committee appealed to the Netherlands to guarantee the minimum required level of the right to housing, health and education with regard to aliens without residence permit.
The interpretation of the UN Committee can already be found in the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights that were adopted in Maastricht in 1986.
Principle 28 stipulates that states are obliged to ensure that everyone can survive and has access to basic services. In later years, the Limburg Principles, as soft law, have had a significant influence on the substantive provisions of the social human rights that are included in the ICESCR. The Netherlands has been a party to the ICESCR since 1976.

3. Can municipalities be penalised financially for offering ‘bed, bath and bread’ to aliens without a valid residence permit?
The agreement between PvdA and VVD provides for the possibility to financially penalise municipalities that offer ‘bed, bath and bread’ to aliens who have exhausted all legal remedies. This is remarkable for also decentralized state bodies are subject to international law. This was stipulated by, among others, the International Court of Justice in the LaGrand case. In the present case, the municipalities hence have the obligation to act in accordance with the interpretation that the Committee of Independent Experts of the ESC has given to the obligations that the Netherlands has incurred under this Treaty. If the central government would put pressure on municipalities to act contrary to these international obligations, it would be acting unlawfully at the international level.
In conclusion, we argue that the right to ‘bed, bath and bread’ is a human right that arises from international human rights treaties. The Committee of Independent Experts has interpreted the obligations that the Netherlands has incurred under the ESC in a correct and legally justified way. It would be to its credits if the Netherlands were to execute the decision of the Committee without creating any further legal impediments. The Netherlands is known as a country that is highly committed to the protection of human rights in its foreign policy. This credibility is under pressure if the Netherlands does not also within its own borders take the human dignity of all people seriously, also of asylum seekers who have exhausted all legal remedies.

The original Dutch version of this article was published in the NEDERLANDS JURISTENBLAD, 12 June 2015, p. 1535-1536.
The text has been translated into English by Vertaalslag.