Committee on the Elimination of Racial Discrimination considers the report of the Netherlands

19 August 2015

The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined nineteenth to twenty-first report of the Netherlands on its implementation of the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.

Following the 2010 constitutional reforms, the Kingdom of the Netherlands constitutes of four countries: the Netherlands (with its European part and a Caribbean part, consisting of the so-called BES Islands), Aruba, Curacao and Sint Maarten.

Introducing the report of Aruba, Olivia Croes, Senior Legal Advisor, Department of Foreign Affairs of Aruba, said that the 2012 Penal Code had broadened the prohibition of racial discrimination, and the Government was implementing strategies to tangibly improve the lives of all its citizens, promote cultural diversity and reinforce peaceful coexistence.

Danae Daal, Treaty Lawyer, Department of Foreign Affairs of Sint Maarten, introducing the report, said that as a small island developing State and the newest country in the Kingdom, the Government was busy creating the framework and institutions necessary for a socially and economically strong country.

Introducing the report of the Netherlands, Afke Van Rijn, Director of the Directorate for Society and Integration, Ministry of Social Affairs and Employment, said that large immigration flows since the 1960s had led to the rise of feelings of fear and alienation in some quarters of the society, and a fierce debate on integration and immigration. The Government rejected and condemned all forms of discrimination and racism and acknowledged that both direct and indirect forms of discrimination were a major concern that needed to be addressed with great priority. Anti-Discrimination Services were available in all 393 municipalities in the Netherlands, which supported anyone with a complaint about discrimination. Preventing ethnic profiling was high on the agenda of the police, while addressing labour market discrimination and unemployment of youth was a key priority for the Government.

Ineke Boerefijn, Netherlands Institute for Human Rights, said that racial discrimination was clearly more widespread and entrenched in the Dutch society than many people realized, and the Government’s awareness raising campaigns to address attitudes and prejudices which led to discrimination were not sufficient to address structural discrimination. What was needed was an ambitious two-tier approach focused on combatting discrimination and empowering individuals, which would address disadvantaged starting positions, promote the awareness of rights and complaint mechanisms, and tackle the underlying causes of racial discrimination.

Committee Experts stressed the importance of a coherent approach to human rights issues throughout the territory of the Kingdom, including the establishment of a central anti-discrimination policy to which local authorities could add the emphasis concerning local specificities. Experts expressed concern that the measures to address racism and racial discrimination were reactive and stressed the need for preventative measures, particularly to address employment discrimination and to tackle root causes of discrimination; a generic approach to addressing discrimination did not preclude any State from adopting special targeted measures, they said. It seemed that there were no limits to the freedom of expression and the delegation was asked about measures to combat hate speech and the manifestation of intolerance on grounds of ethnic origin and religion. In terms of integration, Experts acknowledged that the Dutch society was very diverse, with 10 per cent of the population being of foreign origin; they asked how many actually held Dutch citizenship and at which point those of foreign origin, particularly non-Western origins, were considered fully integrated.

Ion Diaconu, Committee Expert acting as Country Rapporteur, in his concluding remarks, expressed hope that the Committee’s recommendations would be distributed and made known, including in the municipalities which had the competence for the implementation of the Convention.

Ms. Van Rijn said that the new Action Plan on Discrimination would contain important measures to address racism and racial discrimination, and would build on inputs by the United Nations, particularly the International Decade on People of African Descent.

The Kingdom of the Netherlands was represented by a delegation from the Netherlands composed of representatives of the Ministry of Social Affairs and Employment, Ministry of Security and Justice, Ministry of the Interior and Kingdom Relations; a delegation from Sint Maarten represented by the Directorate of Foreign Affairs; a delegation of Aruba represented by the Ministry of Justice and Department of Foreign Affairs; and representatives of the Permanent Mission of the Kingdom of the Netherlands to the United Nations Office at Geneva.

Today’s country review was the last of the session.

The Committee will publish its concluding recommendations on the eight State party reports it considered (Colombia, Costa Rica, Niger, Suriname, the former Yugoslav Republic of Macedonia, Czech Republic, Norway and the Netherlands) at the end of the session.

The Committee will be meeting in private until the close of the eighty-seventh session on Friday, 28 August 2015.

Report

The combined nineteenth to twenty-first periodic report of the Netherlands can be read via the following link: CERD/C/NLD/19-21.

Presentation of the Report

Introducing the report of Aruba, OLIVIA CROES, Senior Legal Advisor, Department of Foreign Affairs, Aruba, said that the current population consisted of 96 different nationalities and 133 countries of birth. In addition to intercultural marriages and the use of Papiamento as the most commonly spoken language at home, the education system was also one of the main mechanisms for successful integration. The 2012 Penal Code had broadened the prohibition of racial discrimination, while the Government was implementing strategies to tangibly improve the lives of all its citizens, promote cultural diversity and reinforce peaceful coexistence.

DANAE DAAL, Treaty Lawyer, Department of Foreign Affairs, introducing the report of Sint Maarten, said that as a small island developing State and the newest country in the Kingdom, the Government was busy creating the framework and institutions necessary for a socially and economically strong country. The newly formed Justice Academy included a sociology course which highlighted the procedures to be followed in dealing with racial or social problems, while profiling courses were being implemented for immigration officers in order to curb racial and other forms of discrimination. Sensitization to discrimination was a component of the law enforcement training policy.

AFKE VAN RIJN, Director of the Directorate for Society and Integration, Ministry of Social Affairs and Employment, introducing the report of the Netherlands, said that the Netherlands was a highly diverse society, home to over 190 different nationalities from all continents; more than half of the population of the four big cities - Amsterdam, Rotterdam, the Hague and Utrecht - had an immigration background. Large immigration flows since the 1960s had led to profound changes in the society, the rise of feelings of fear and alienation in some quarters, and a fierce debate on integration and immigration. Racist statements however, were not accepted, and political leaders and the wider society increasingly spoke out against intolerance and discrimination, while perpetrators of discrimination were brought to justice where possible. Tolerance towards racial minorities was increasing, particularly for the youth for whom diversity was a fact of life, but serious concerns remained. Developments in the Middle East, such as the rise of Islamic State and the Israeli-Palestinian conflict had had an impact on the Dutch society. Feelings of tension and intolerance between and within different groups in society seemed to be increasing. The Government rejected and condemned all forms of discrimination and racism and acknowledged that both direct and indirect forms of discrimination were a major concern that needed to be addressed with great priority.

High-impact crimes, such as hate crimes and hate speech, were solely dealt with by the criminal law and given national priority within the “Security agenda 2015-2018”. Research was an essential basis for policy making; continuous investments were being made in research on the position of different groups in Dutch society and on the existence and forms of discrimination. Research provided a basis for deciding whether targeted measures were needed to complement an overall generic approach, as was the case in countering Islamophobia, anti-Semitism and anti-black racism. The Government attached great value to dialogue and cooperation with various non-governmental organizations, citizens initiatives and migrant associations, whose expertise and knowledge and input in the public debate were vital for achieving success. The role of the Government was to set standards, and establish and enforce the rules. All 393 municipalities in the Netherlands had an Anti-Discrimination Service in place that would support anyone with a complaint about discrimination. Preventing ethnic profiling was crucial for the effectiveness and legitimacy of the police, and for maintaining the public’s confidence; this issue was high on the agenda of the police and the Ministry of Security and Justice. Addressing labour market discrimination and unemployment of youth was a key priority, which had launched in 2014 an action plan which included 42 measures to be implemented by a joint effort of the government, employers and employees.

Questions by Committee Experts

ION DIACONU, Committee Expert acting as Country Rapporteur, welcomed the National Human Rights Action Plan, the establishment of the National Institute of Human Rights and of the Inter-ministerial Human Rights Consultative Committee, and a diversity index showing a breakdown of employees in certain public bodies. The report had offered incomplete information on the different parts of the country, said Mr. Diaconu, stressing the need for a coherent approach to human rights issues throughout the territory. It was local municipalities which had the competence of respect for human rights and freedoms, but not all municipalities had an anti-discrimination policy or the necessary capacities and resources; the anti-discrimination policy should be established by the central authorities, to which local authorities could add the emphasis concerning local specificities. Some 10 per cent of the Netherlands was of foreign origin: Turks, Moroccans, Surinamese, East-Europeans, there was also the national minority of Frysians and Roma and Sinti – how many of those considered of foreign origin were Dutch citizens and how could their children obtain citizenship? The majority of actual inhabitants of Aruba, Curacao, Sint Maarten and the three islands were Afro-descendants and it was important to ensure that they were not discriminated against.

The integration policy shifted the responsibility for integration mainly to immigrants; did the Government consider that they could fully integrate by their own efforts and which measures were foreseen to assist them in this end? The Country Rapporteur noted that the mainstream approach to combat discrimination consisted of generic policies and measures aimed at the population as a whole and not favouring specific measures aimed at vulnerable groups, and wondered whether such an approach limited the efforts to combat discrimination on grounds of race and ethnicity, and whether it led to indirect discrimination of those different from the majority population. As for the legislation, there was a general interdiction of discrimination on grounds of race in the Constitution and in the Equal Treatment Act, but no reference to ethnic origin or colour as grounds of discrimination; the only definition of racial discrimination was to be found in the Criminal Code, but again, only on grounds of race and not of ethnic origin, descent and colour. While taking into account the Government’s position on freedom of expression, how did it intend to combat discrimination and the manifestation of intolerance on grounds of ethnic origin and religion?

Other Experts remarked that the Surinamese population living in the Netherlands was larger than the population living in Suriname, and that a great proportion of them felt they were discriminated against. What was their situation and what plans were in place to help them?

The delegation was asked about the ethnic composition of the population of the Netherlands; the plans in place to commemorate the International Decade of People of African Descent; and to comment on the abolition of the governmental funding for integration, leaving the costs of integration to immigrants.

Another Expert remarked that it seemed that there were no limits to freedom of expression and asked the delegation to explain what it meant to exercise restraint in the investigation of utterance, whether hate speech was tolerated, and when utterance was considered an insult and was covered by the criminal law. The Expert also asked about measures to improve access to justice for vulnerable populations and an explanation of anti-discrimination services available in municipalities.

Committee Experts commended the efforts to improve data gathering on the incidents of discrimination and asked about the application developed for the purpose, and remarked that the list of countries exempted from taking an exam for the purpose of family reunification, contained in the Civic Integration Abroad Act, was a clear example of discrimination. The Government was probably aware about ethnic profiling by the police and was developing measures to eliminate discrimination from the functioning of the police; one good example in this regard was set by the Oslo Police. Ethnic minorities were subject to discrimination in employment, and there were reports of employers instructing temporary employment agencies not to present job applications by members of minorities. Undocumented migrants and asylum seekers were not guaranteed the three basic needs, “Bed, bath and bread”, and Experts urged the Netherlands to ensure those basic needs for the population already in its territory, all the while guarding its borders which was its sovereign right.

Another Committee Expert took up issues of immigration and integration and, while acknowledging the great level of diversity in Dutch society, asked when it was that the integration actually ended, and at which stage a non-Western immigrant knew that he or she was fully integrated. The Netherlands intended to replace the 2010 action plan against discrimination: what was the ultimate vision of the Government that would inform this new plan on integration and immigration which would ensure that people were not only tolerated but accepted? Migration was a fact of life, it would continue happening, and demographics were constantly changing, and the question was how the Netherlands would ensure that the local authorities, which had the competence to deal with issues of racial discrimination and integration, would change with it and be sufficiently agile to respond to changes.

The previous Anti-Discrimination Plan had a very minimal focus on racism. The delegation was asked how the overall structure of racial discrimination would be addressed in the new Plan and how all groups affected by discrimination would be included in its development. It was also asked about the employment of minority women and whether the Netherlands had considered the ratification of the International Labour Organization Convention on Domestic Work, which represented very concrete first steps in addressing discrimination against women from minorities. What particular targets were in place to ensure that the particular way of life of Roma, Sinti and Travellers was maintained, and to ensure that their rights to housing and employment were respected? In terms of hosting refugees, what measures were in place to ensure that they maintained their culture and identity?

A Committee Expert expressed concern that the measures taken by the Netherlands to address racism and racial discrimination were reactive, and stressed the need for preventative measures to address employment discrimination and to tackle root causes of discrimination. A generic approach to addressing discrimination did not preclude any State from adopting special targeted measures, which in case of the Netherlands were not sufficient, and those for Roma, Travellers and Sinti were completely eliminated.

JOSE FRANCISCO CALI TZAY, Committee Chairperson, concerning the custom of Black Pete, said that it was important for this Committee to ask States parties to change customs that could be understood as discriminatory.

Statement by the National Human Rights Institution

INEKE BOEREFIJN, Netherlands Institute for Human Rights, said that unemployment among people of foreign origin was three times higher than among Dutch natives, and figures were particularly alarming for youth. Research had shown that racial discrimination played an important role in the high unemployment rates. Racial discrimination was clearly more widespread and entrenched than many people realized. The Netherlands recognized its responsibility to address attitudes and prejudices which led to discrimination, but awareness raising campaigns were not sufficient to address structural discrimination, which needed to be addressed with adequate policies. Human rights education in school could constitute a solid basis to address racial discrimination and its root causes, while training of police, judiciary and teachers should take place. What was needed was an ambitious two-tier approach focused on combatting discrimination and empowering individuals, which would address disadvantaged starting positions, promote the awareness of rights and complaint mechanisms, and address the underlying causes of racial discrimination.

Replies by the Delegation

The Kingdom consisted of four countries and the Kingdom could be held accountable for the implementation of treaty obligations; however, each country had the right to decide how to implement international treaties.

There was no overarching plan for human rights in Curacao, but the process of establishing a national human rights institution was ongoing. Languages of instruction in public schools were Papiamento and Dutch, and since 2012, all children in Curacao, including children of migrants and undocumented immigrants, had free access to education.

Aruba was taking steps to draft a human rights plan, which would be based on the outcomes of Universal Periodic Review and human rights treaty bodies recommendations. Aruba had made a commitment during the recent Universal Periodic Review to establish a national human rights institution in accordance with the Paris Principles, and was committed to the establishment of the Ombudsman and Children Ombudsman in the near future. Papiamento and Dutch were official languages; in first years of education children were taught in those two languages, and in later years English and Spanish were introduced.

As a newly established country, Sint Maarten intended to establish an independent national human rights institution. The mother tongue was English, and official languages were English and Dutch, which were also languages of instruction. The National Ordinance on Education introduced compulsory education for children aged four to 18 years of age. Children born to migrants were registered with public authorities and received the nationality of their mothers. Everyone had access to justice regardless of their means, through the free legal aid.

The Netherlands was committed to fighting racism within the new national plan against discrimination, which used the momentum of the International Decade of People of African Descent. The Civic Integration Act aimed to support the integration of migrants by facilitating learning about Dutch language and society; recently, the Act had been expanded with a module aiming to support the integration of migrants into the labour market, and also included the possibility of recognition of diplomas. The Netherlands strongly believed that everyone was expected to contribute to society and be self-reliant, and this applied also to those born outside of the Netherlands. Migrants were expected to pay for their civil integration exams by themselves, and could access low-interest rate loans for this purpose. The countries exempt from the civic integration exam abroad for purposes of family reunification were those countries with which the Kingdom had special relations, such as the European Union countries for example.

Asylum seekers who had been granted residency permits moved into houses of their own, either by themselves or with assistance from municipalities. Following the recommendation of the Advisory Committee on Migration Affairs, which had found that the majority of stateless persons in the Netherlands resided there for a long time, the Netherlands had decided to establish a determination procedure on statelessness which would enable those without nationality to ask the civil court to determine their nationality status; this legislation was expected to come into force in January 2017.

The Agreement, known as the Security Agenda, contained the commitment of the Government to fight hate crime and hate speech through a number of measures. The police were obliged to register the cases of discrimination and were improving the general reporting process and feedback to victims. An easy system of access to justice was laid down in the Constitution, and the Anti-Discrimination Services and the services of the police were free of charge, while people with low income were compensated for the costs incurred in accessing the justice. The courts had discretionary power to decide penalties, and the public prosecutor could influence deliberations of the court by asking for a certain penalty, in accordance with the provisions of the Instruction on Hate Crime and the guidelines on prosecuting discrimination, which had introduced more harsh penalties for hate crimes. Preventing ethnic profiling was crucial for the effectiveness of the police and maintaining public confidence in the police.

The public debate on issues such as migration could sometimes be harsh, but this did not make the Netherlands a country where hate speech was raining down in the public and the media. The freedom of expression did not protect hate speech and citizens infringing on this rule could expect firm reaction from the authorities. Acts of racism and discrimination on any grounds were punishable and liable to criminal prosecution. Freedom of expression was a prerequisite for a fully functioning democratic society, and racist speech was always punishable; judgement on whether a speech was racist was made by an independent court. The right to freedom of religion or belief was applicable to everyone but was not absolute and could not be applied in cases where it infringed on the rights of others. Freedom of religion or freedom of expression could not be used with the purpose to discriminate or incite hatred, which was punishable by the criminal code.

The Government was committed to ensuring the full rights of Roma, Sinti and Travellers, and recognized challenges in education and employment, as well as the exploitation of children. In 2011, a programme to tackle the exploitation of children, particularly Roma children, had been launched, and a Roma Integration Strategy had been adopted in 2012. Structural monitoring of those communities was in place to identify which further targeted measures were needed. The Netherlands had no assimilation policy in place, nor did it actively support the maintenance of specific cultures and languages, which was the responsibility of the people themselves. Since the Caravan Act had been abolished in 1999, the allocation of caravan sites had been the responsibility of municipalities, following the rules and standards for the allocation of other forms of housing, and in line with national legislation and international human rights treaties.

The starting point for the new Action Plan on Discrimination was the rejection by the
Dutch Government of direct and indirect discrimination; the Action Plan would take into account all forms of discrimination and would have balance in attention to specific groups confronted with discrimination, and would continue to support municipalities in the implementation of Municipal Anti-Discrimination Act. It would also deal with the prevention of discrimination, even if preventive measures were already being taken by the Government to address prejudices.

The Anti-Discrimination Services in municipalities provided people with information and received complaints of discrimination. The Municipal Anti-Discrimination Act had
been evaluated in 2012 and in 2014, a Working Group composed of representatives of Anti-Discrimination Services had discussed the functioning of the Services and had concluded that measures were needed to strengthen their effectiveness. The functional review of the Anti-Discrimination Services would take place later this year.

Questions by the Committee Experts

Committee Experts called upon the Kingdom of the Netherlands to address the concerns raised by the national human rights institution, including the discrimination against women and girls wearing headscarves in their search for internship, necessary to complete education. The Expert raised concern about lesbian, gay, bisexual, transgender and intersex persons asylum-seekers who were confronted with prejudices by officers of Immigration and Naturalization Services and that had an adverse impact on the determination of their need for international protection. Another concern was that domestic violence was not recognized as a ground for asylum. Detainees in asylum detention centres were treated as common criminals, and the regime governing those centres was the penal regime.

Responding, the delegation said that the issue of women and girls wearing headscarves was very much a priority of the Government at the moment. The delegation acknowledged the challenges lesbian, gay, bisexual and transgender persons faced in the asylum process and said that the Central Office for Asylum was very much aware of it. People must be encouraged to speak out about problems they faced.

In a further series of questions and comments, Committee Experts remarked that the law criminalized racist speech and that even insults were criminalized, but insults and slander were tolerated and accepted in the context of religion, politics and art; insults between citizens were in fact the ones that were criminalized. Discourse in the political, religious and art contexts should in fact set the benchmark and standards for the society. In terms of family reunification for ethnic groups fleeing their country for fear of eradication of their own group, such as the Yazidis, did they have a possibility to maintain their culture?

The delegation said that the Netherlands applied the so-called Three Step Model to hate speech, in which the first step was to check that the statement was really offensive, secondly to examine the context in which the statement had been made, and thirdly, to verify that the statement was unnecessary hurtful; in this case, the statement would be found to have violated the freedom of expression. This model was not applicable to statements inciting hate or violence against others, in which the requirement to verify the context of the statement did not apply.

Another Expert asked whether the Netherlands would consider including colonial history and slavery in the school curriculum, and, noting that the traffickers were using the legal prostitution environment to expand their trade, asked about steps that could be taken to stop traffickers from abusing the legalization.

The delegation said that the main purpose of the legislation on prostitution was to get an insight to what was happening inside and would also provide better understanding of human trafficking.

Another Committee Expert expressed her concern about the failure of the new Action Plan on Discrimination to directly address racism and racial discrimination and stressed the importance for the public authorities to actively engage with marginalized minorities, including Roma, Travellers and Sinti, and with women of minority backgrounds.

Concluding Remarks

ION DIACONU, Committee Expert acting as Country Rapporteur, expressed hope that the State party would give due attention to the issues Experts raised in the discussion and that the Committee’s recommendations would be distributed and made known, including in the municipalities which had the competence for the implementation of the Convention.

AFKE VAN RIJN, Director of the Directorate for Society and Integration, Ministry of Social Affairs and Employment, said that the comments made by Experts would help the Kingdom to improve its policies and practices. The new Action Plan on Discrimination would contain important measures to address racism and racial discrimination, and would build on the inputs by the United Nations, particularly the International Decade on People of African Descent. The voices of those confronted with discrimination needed to be clearly heard, said Ms. Van Rijn and reiterated the commitment of the Government to continue cooperation with a wide variety of migrant organizations.

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