THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH Veelke derckx and Ewoud Hondius IV C3 Introduction In June 2001 the Dutch abortion ship belonging to the pressure group Women On Waves set sail for Ireland. The intention was to carry out abortions off the Irish coast. During the same(Northern Hem isphere)summer there were heated discussions taking place in many countries concerning the status of the em bryo and f gametes(reproductive cells). As a result President Bush decided to finance research into stem cells, but only under strict restrictions. 2 In the US a human em bryo was cloned for the first tme in November 2001. The subject of the em bryo is occupy ing the minds of, among others, many politicians, lawyers, ethicists and medical scientists on a worldwide basis. The great strides being made in the development of medical science and technology brings with it increased possibilities, but also many dilemmas. How has the Dutch legislator dealt with these dilemmas, also considering the intemational regulations on this point? In this paper we will provide a brief overview of the status and the protection of the embryo in the Netherlands where by consideration will be given to, among other things, abortion cloning, control and scientific research. The Embryos Bill playsa large role in all of this. We will, furthermore look at the connection with prenatal errors General remarks on the status of the embryo It should first of all be stated that where in this article we speak of the embryo, what we mean is the human embryonic offspring, regardless of in which development stage it may be in or whether or not it is with in the body of a pregnant woman. An em bryo can exist within the human body, in vivo, as well as outside the human body in vitro. 3 The explosive growth in the various possibilities in the field of reproductive dicine has given rise to qu st of Lecturer in Health Law, University of Utrecht Professorof Civil Law, University of Utrecht. Ireland has the most stringent abortion legislation n Europe. In the Netherlands abortion is available subject to legally determined conditions(seesection 9). De volkskrant, II August 2001 3. By means of in-vitro fertilization(n-vitro meaning wthin glass In the case of n-vitro fertil isation spermatozoa are brought mto contact with the oocytes in a glass dish so that the oocytes can thereby be fertilized. In this way embryos can come into beingwhich may then be impanted into the woman uterus. In the Nether lands thereare some 12, 000 IVF treatments eachyear and with the aid of IVF some 1800 children are born on a yearly bass(source: Mistry of Health, Welfare and Sports). In thi paper the legal status of the embryo is discussed, not its moral status. Although it I indeed true that moral and kgal status are interconnected, here they should be differentiated. If a status i attributed to an embryo, ths still does not mean that it has a legal status, Leenen Gevers, 2000, P. 130
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW Veelke Derckx* and Ewoud Hondius** IV C 3 1 Introduction In June 2001 the Dutch abortion ship belonging to the pressure group Women On Waves set sail for Ireland. The intention wa s to carry out abortions off the Irish coast. 1 During the same (Northern Hemisphere) summer there were heated discussions taking place in many countries concerning the status of the embryo and of gametes (reproductive cells). As a result President Bush decided to finance research into stem cells, but only under strict restrictions.2 In the US a human embryo was cloned for the first time in November 2001. The subject of the embryo is occupying the minds of, among others, many politicians, lawyers, ethicists and medical scientists on a worldwide basis. The great strides being made in the development of medical science and technology brings with it increased possibilities, but also many dilemmas. How has the Dutch legislator dealt with these dilemmas, also considering the international regulations on this point? In this paper we will provide a brief overview of the status and the protection of the embryo in the Netherlands whereby consideration will be given to, among other things, abortion, cloning, control and scientific research. The Embryos Bill plays a large role in all of this. We will, furthermore, look at the possibilities for obtaining damages in connection with prenatal errors. 2 General remarks on the status of the embryo It should first of all be stated that where in this article we speak of the embryo, what we mean is the human embryonic offspring, regardless of in which development stage it may be in or whether or not it is within the body of a pregnant woman. An embryo can exist within the human body, in vivo, as well as outside the human body in vitro. 3 The explosive growth in the various possibilities in the field of reproductive medicine has given rise to questions concerning the use of embryos. The status4 of * Lecturer in Health Law, University of Utrecht. ** Professor of Civil Law, University of Utrecht. 1. Ireland has the most stringent abortion legislation in Europe. In the Netherlands abortion is available subject to legally determined conditions (see section 9). 2. De Volkskrant, 11 August 2001. 3. By means of in-vitro fertilization (in-vitro meaning within glass). In the case of in-vitro fertilisation spermatozoa are brought into contact with the oocytes in a glass dish so that the oocytes can thereby be fertilized. In this way embryos can come into being which may then be implanted into the woman s uterus. In the Netherlands there are some 12,000 IVF treatments each year and with the aid of IVF some 1800 children are born on a yearly basis (source: Ministry of Health, Welfare and Sports). 4. In this paper the legal status of the embryo is discussed, not its moral status. Although it is indeed true that moral and legal status are interconnected, here they should be differentiated. If a certain moral status is attributed to an embryo, this still does not mean that it has a legal status, Leenen/Gevers, 2000, p. 130
DERCKX/HONDIUS stances adopted concerning the position the embryo range from comprehensive and all-embracing protection( from the moment of conception) to very weak protection. Many (Western) European ountries already have legislation in place dea ling with activities connected with embryos or have tabled bills to this effect. The mo legislation in this field may be found in Austria, France, Germany, Norway and Spain. The broadest legislation is that of the UK. Denmark, Finland and Sweden lie somewhere in between whilst Italy and Luxembourg have tabled bills on this In The Netherlands, the Lower House of Parliament after two previous attempts ratified a bill with regard to the creation and use of em bryos as well as control as far as gametes and em bryos are concerned( the Embryos Bill).Contrary to what the title Embryos Bill implies, the bill is not only concerned with embryos but also with various aspects of the ordinary use of fertilization techniques and the consequences thereof. The need for legal regulation was linked to the signing of the Council of Europe s Convention for the protection of human rights and the dignity of the human being with regard to the application of biology and medicine (Bio-ethics Treaty).8 Although the Netherlands has signed this convention, it has still not yet been ratified. If the Netherands were to ratify this Convention without reservation, then it would be directly bound by its provisions. 9 The status and protection of the human embryo in vivo and in vitro is discussed belo Is an embryo a legal subject? The question whether an embryo is a legal subject is of importance for its le gal rotection. If this question could be answered in the positive, this would certainly For an overview see Explanatory Memorandum, 2000M0 1, 27423, no 3, P. 60et seq Bill containng rules relating to theuseof gametes and embryos(Embryos Bil), Parliamentary Document IL. 200001.27423 nos 1- A specific choice has been made for one integral bill cons ider ng the inextricable connection between these subjects, Explanatory Memorandum, 2000/01, 27 423, no. 3. Embryos and gametes are in fact bodily material. In the Netherlands there s abo an Act n themaking conceming control over bodily materials. However, because of the ability t change into an embryo and subseq uently into a human being gametes and embryos have, according t the legislator, adifferent character and are more emotionally charged than other bodily material They are therefore excluded from the ambt of the Bodily Materials Act( Explanatory Memorandum, 2000/01, 27423, no 3, p. 13) Convention on Human Rights and Biomedicine ( Bio-ethics Treaty), Council of Europe, Ov ideo 4 April 1997, Trb. 1997, 113. This convention, a so-called framework convention, contains a number of basic prnciples and forms a foundation for the elaboration of specific subjects within various protocols, H. Nys 1998, p 24 provisions of the Constitution, n the Netherlands it s specifically laid down n the Constitution(Art 94)that treaties occupy a position over and above the law. The provis ions n this Convention would thereby have to be directly applied by the Duthcourts A legal subject is a bearer ofrights and obligations
DERCKX/HONDIUS 2 the embryo is controversial; the various stances adopted concerning the position of the embryo range from comprehensive and all-embracing protection (from the moment of conception) to very weak protection. Many (Western) European countries already have legislation in place dealing with activities connected with gametes and embryos or have tabled bills to this effect. The most restrained legislation in this field may be found in Austria, France, Germany, Norway and Spain. The broadest legislation is that of the UK. Denmark, Finland and Sweden lie somewhere in between whilst Italy and Luxembourg have tabled bills on this subject.5 In The Netherlands, the Lower House of Parliament after two previous attempts ratified a bill with regard to the creation and use of embryos as well as control as far as gametes and embryos are concerned (the Embryos Bill). 6 Contrary to what the title Embryos Bill implies, the bill is not only concerned with embryos but also with various aspects of the ordinary use of fertilization techniques and the consequences thereof.7 The need for legal regulation was linked to the signing of the Council of Europe s Convention for the protection of human rights and the dignity of the human being with regard to the application of biology and medicine (Bio-ethics Treaty).8 Although the Netherlands has signed this convention, it has still not yet been ratified. If the Netherlands were to ratify this Convention without reservation, then it would be directly bound by its provisions. 9 The status and protection of the human embryo in vivo and in vitro is discussed below. 3 Is an embryo a legal subject? The question whether an embryo is a legal subject10 is of importance for its legal protection. If this question could be answered in the positive, this would certainly 5. For an overview see Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 60 et seq. 6. Bill containing rules relating to the use of gametes and embryos (Embryos Bill), Parliamentary Documents II, 2000/01, 27 423, nos. 1-2. 7. A specific choice has been made for one integral bill considering the inextricable connection between these subjects, Explanatory Memorandum, 2000/01, 27 423, no. 3. Embryos and gametes are in fact bodily material. In the Netherlands there is also an Act in the making concerning control over bodily materials. However, because of the ability to change into an embryo and subsequently into a human being, gametes and embryos have, according to the legislator, a different character and are more emotionally charged than other bodily material. They are therefore excluded from the ambit of the Bodily Materials Act (Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 13). 8. Convention on Human Rights and Biomedicine (Bio-ethics Treaty), Council of Europe, Ovideo 4 April 1997, Trb. 1997, 113. This convention, a so-called framework convention, contains a number of basic principles and forms a foundation for the elaboration of specific subjects within various protocols, H. Nys 1998, p. 24. 9. Although, in Germany for example, the courts can test the applicability of a treaty against the provisions of the Constitution, in the Netherlands it is specifically laid down in the Constitution (Art. 94) that treaties occupy a position over and above the law. The provisions in this Convention would thereby have to be directly applied by the Dutch courts. 10. A legal subject is a bearer of rights and obligations
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCHLAW mean that an embryo would deserve protection. In the Netherlands, however, the leamed opinion is that an embryo is not a legal subject. I This is derived from, amongst other things, Art. 1: 2 of the Dutch Civil Code where the rule nasciturus pro iam nato habetur is laid down. which means that the child with which the woman is pregnant 2 is considered as ha vinga lready been bom if its interests thereby so require the child is not born alive, then this respect will never have ex isted in the first pace As soon as one is borm one therefore enters the legal community as the bearer of subjective rights. 13 A recent Dutch interpretative declaration which was made upon signing the Bio-ethics Treaty and which concemed the prohibition on cloning replication of human individuals ) confirms the view that an embryo is not considered to be a legal subject in the Netherlands. In this interpretative declaration the Netherlands has stated that the notion of human being is understood to mean a human being who has already been bom. 14 4 The status of the embryo: the theory of progressive legal protection In health law the doctrinal status of the human embryo has developed, which is the theory of progressive legal protection. 5 The human embryo has is own legal protection, it is neither a legal subject, nora legal object o This status is linked to the embryo s different stages of development. These transitional stages are the blastogenesis, the first stage from the moment of conception to the implantation or nidation after around 14 days. Secondly, the stage following on from nidation until the moment when the foetus has a vable independent existence, and fina lly the stage from viable independent existence until the actual birth. These stages have certain onsequences under the law after nidation there is a foetus with which the woman is pregnant, an abortion can no longer be carried out if the foetus can be considered to have atta ined a vable independent existence. These legal components together provide an impression of the protection, or ack of, accorded to the dignity of unbom life during the various sta ges of development After the completion of the implantation one speaks of status potentials: if a num ber of conditions are fulfilled, then the embryo has the potential to grow into a person. The protection of the embryo dignity is somewhat limited during this stage After the implantation up until the time of birth one can speak of status nascendi: the 11. Leenen/Gevers, 2000, P. 136 a woman s pregnant as soon as the embryo becomes mplanted in the uterus, Leenen / Geve 0,p.132 Abso when the child has only lived for a fewmnutes, it is stillrecognsed that ithas been alegal subject. This also applies to a child with serous abnormalities and to monstra, anencephaliesetc. Letter of 22 April 1999 from the Minster of Health, Welfare and Sports, CSZME-994626 The Protocol leaves the interpretation of thenotion of human being to the Member States. For the derlying reasons for this dedaration see section 6.2 Among others, see Leenen/Gevers, 2000. For d agreement with this theory see Van der Burg, 1994 Te Braake, 2001, P. 7. A legal objectis an object of persons rights
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 3 mean that an embryo would deserve protection. In the Netherlands, however, the learned opinion is that an embryo is not a legal subject.11 This is derived from, amongst other things, Art. 1:2 of the Dutch Civil Code where the rule nasciturus pro iam nato habetur is laid down, which means that the child with which the woman is pregnant12 is considered as having already been born if its interests thereby so require. If the child is not born alive, then this respect will never have existed in the first place. As soon as one is born one therefore enters the legal community as the bearer of subjective rights.13 A recent Dutch interpretative declaration which was made upon signing the Bio-ethics Treaty and which concerned the prohibition on cloning ( replication of human individuals ), confirms the view that an embryo is not considered to be a legal subject in the Netherlands. In this interpretative declaration the Netherlands has stated that the notion of human being is understood to mean a human being who has already been born . 14 4 The status of the embryo: the theory of progressive legal protection In health law the doctrinal status of the human embryo has developed, which is the theory of progressive legal protection. 15 The human embryo has is own legal protection, it is neither a legal subject, nor a legal object.16 This status is linked to the embryo s different stages of development. These transitional stages are the blastogenesis, the first stage from the moment of conception to the implantation or nidation after around 14 days. Secondly, the stage following on from nidation until the moment when the foetus has a viable independent existence, and finally the stage from viable independent existence until the actual birth. These stages have certain consequences under the law: after nidation there is a foetus with which the woman is pregnant; an abortion can no longer be carried out if the foetus can be considered to have attained a viable independent existence.17 These legal components together provide an impression of the protection, or lack of, accorded to the dignity of unborn life during the various stages of development. After the completion of the implantation one speaks of status potentialis: if a number of conditions are fulfilled, then the embryo has the potential to grow into a person. The protection of the embryo s dignity is somewhat limited during this stage. After the implantation up until the time of birth one can speak of status nascendi: the 11. Leenen/Gevers, 2000, p. 136. 12. A woman is pregnant as soon as the embryo becomes implanted in the uterus, Leenen/Gevers, 2000, p. 132. 13. Also when the child has only lived for a few minutes, it is still recognised that it has been a legal subject. This also applies to a child with serious abnormalities and to monstra, anencephalies etc. 14. Letter of 22 April 1999 from the Minister of Health, Welfare and Sports, CSZ/ME-994626. The Protocol leaves the interpretation of the notion of human being to the Member States. For the underlying reasons for this declaration see section 6.2. 15. Among others, see Leenen/Gevers, 2000. For disagreement with this theory see Van der Burg, 1994. 16. Te Braake, 2001, p. 7. A legal object is an object of persons rights. 17. See supra
DERCKX/HONDIUS foetus on the road to being born. By the process of implantation there exists a foetus with which the woman is pregnant. 8 The embryo will be able to rea lise its potential unless further development will be interrupted (for example by the pregnancy being terminated). The progressive protection of dignity entails that, according to the development stage in which the human foetus is in, an ascending level of legal protection is already granted. In the status nascendi, for example, there is a greater degree of protection than during the preceding stage but it is more limited than that of a child which has already been born. The protection of the human embryo rests on the intrinsic value of the em bryo, regardless of whether it is an in-vivo or in-vitro 5 The embryo in international human rights treaties In connection with abortus provoca tus in particuar, the question has arisen in The Netherlands as to whether an em bryo falls within the ambit of the human rights treaties, namely the Universal Declaration of Human Rights(1948), the Intemational Covenant on Civil and Political Rights(1966), and the European Convention on Human Rights and Fundamental Freedoms(ECHR).20 Art. 3 of the Declaration detem ines: everyone has the right to life, liberty and security of person. Art. 6 of the International Covenant states: every human being has the inherent right to life Leenen has deduced. among other things from the intentions of the drafters. the system of the treaties and the fact that a number of the included rights hardly relate to people who have just been bom, that the embryo cannot fall within the ambit of these treaties 21 Art. 2 ECHR determines that everyone s right to life shall be protected by law and this provision is not only advanced in theabortion(and euthanasia )debates, but also gives rise to questions in the case of modem medical reproduction techniques with regard to the interpretation of this particulararticle Important in this respect is also Art. 3 which states that no one may be subjected to torture or to inhuman or degrading treatment or punishment. The European Commission of luman Rights has in antime on numerous occasions considered the adm issibility of abortus provocatus and thereby also the question of whether the embryo falls within the ambit of the ECHR. From the cases of X v. UK22 and Hercz v. Nonway23 it can be deduced that the embryo does not in principle fall within the protection of the ECHR and that abortion provocatus is allowed. 4 It is possible that Sutorius, 1993, P. 236 thinks otherwse. According to him the status nascendi must be limited up until the stage of viable independent existence. Te Braake, 2001, P.8. Rome. 4 November 1950. Leenen/Gevers, 2000, P. 141 13 May 1980, Application no 8416/78, NJ 1981, 110 19 May 1992, Tijdschrift voor Gezondheidsrecht 1993/35 Leenen, 1994, Leenen/Gevers, 2000, p. 143. See also De Bruiin-Luckers who indeed recognses that the decis ions of the European Commiss on do not provide a clear answer t the question of whether and when the foetus can derive rights from the eChr, but who nevertheless
DERCKX/HONDIUS 4 foetus on the road to being born. By the process of implantation there exists a foetus with which the woman is pregnant.18 The embryo will be able to realise its potential, unless further development will be interrupted (for example by the pregnancy being terminated). The progressive protection of dignity entails that, according to the development stage in which the human foetus is in, an ascending level of legal protection is already granted. In the status nascendi, for example, there is a greater degree of protection than during the preceding stage, but it is more limited than that of a child which has already been born. The protection of the human embryo rests on the intrinsic value of the embryo, regardless of whether it is an in-vivo or in-vitro embryo.19 5 The embryo in international human rights treaties In connection with abortus provocatus in particular, the question has arisen in The Netherlands as to whether an embryo falls within the ambit of the human rights treaties, namely the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the European Convention on Human Rights and Fundamental Freedoms (ECHR).20 Art. 3 of the Declaration determines: everyone has the right to life, liberty and security of person . Art. 6 of the International Covenant states: every human being has the inherent right to life . Leenen has deduced, among other things from the intentions of the drafters, the system of the treaties and the fact that a number of the included rights hardly relate to people who have just been born, that the embryo cannot fall within the ambit of these treaties.21 Art. 2 ECHR determines that everyone s right to life shall be protected by law and this provision is not only advanced in the abortion (and euthanasia) debates, but also gives rise to questions in the case of modern medical reproduction techniques with regard to the interpretation of this particular article. Important in this respect is also Art. 3 which states that no one may be subjected to torture or to inhuman or degrading treatment or punishment. The European Commission of Human Rights has in the meantime on numerous occasions considered the admissibility of abortus provocatus and thereby also the question of whether the embryo falls within the ambit of the ECHR. From the cases of X v. UK22 and Hercz v. Norway23 it can be deduced that the embryo does not in principle fall within the protection of the ECHR and that abortion provocatus is allowed.24 It is possible that 18. Sutorius, 1993, p. 236 thinks otherwise. According to him the status nascendi must be limited up until the stage of viable independent existence. 19. Te Braake, 2001, p. 8. 20. Rome, 4 November 1950. 21. Leenen/Gevers, 2000, p. 141. 22. 13 May 1980, Application no. 8416/78, NJ 1981, 110. 23. 19 May 1992, Tijdschrift voor Gezondheidsrecht 1993/35. 24. Leenen, 1994, Leenen/Gevers, 2000, p. 143. See also De Bruijn-Lückers who indeed recognises that the decisions of the European Commission do not provide a clear answer to the question of whether and when the foetus can derive rights from the ECHR, but who nevertheless
THE RIGHTS OF THEEMBRYO AND THE FOETUS UNDER DUTCHLAW In an exceptional case an exception can be made for a foetus which has passed the initial stage and which can satisfy the exception under Art. 2. However, no definitive conclusion can be derived from the Strasbourg case law as to whether the unbom foetus can fall within the ambit of Art. 2 ECHR 2 of the Bio-ethics Treaty couples the terms dignity and identity to human and the notion of integrity to the tem everyone. It is largely fruitless to define the term everyone considering the various interpretations of this concept in the Member States. 26 The Protocol on cloning also lea ves the interpretation of the notion of human being to the member States. According to Kits Nieuwenkamp plies to human life from the moment of everyone relates to life which has been born. Thereby, according to her, there Mem ber States s, flict between the convention and the abortion legislation in some appears to be a cor According to Leenen, in the minds of the drafters of the convention the embryo s dignity is the subject of a certain degree of protection during all the development stages. From the fact that, according to Art. 18, scientif ic research into the embryo in-vitro is in principle allowed, it would seem that there is no absolute protection during this stage The embryos bill 6.O The Embryos Bill sets limits on the use of gametes and embryos. A number of activities are considered to be ethica lly impem issible and are prohib ited; examples thereof are clonings29, the choosing of a ba by s gender for non-medical reasons ad combining cells from human and animal embryos(Arts. 24 and 25 Embryos Bill) Before adressing a number of specific details of the Embryos Bill, the aim and starting point of the bill will be discussed as well as the definition of the term embryo as mentioned in the bill. The legislator s general point of departure is human dignity and the principle of respect for human life in general. 30 Any violation of this orinciple of respect for human life is justified if other values, such as the welfare of the future child, the treatment of patients or the promotion of their health and the welfare of infertile couples, are considered to be of greater importance. There is no specific mention of the progressive protection of dignity. From the fact that it is forbidden to allow an embryo to develop outside the human body for fnds points of departure, namely in the Hercz case, for the proposition that the foetus can derive ights from the ECHR(1994, P. 141) Leenen/Gevers, 2000, p. 143 Explanatory Report Directorate ofLegal Affairs, Strasbourg, January 1997, pp. 18 and 19 Kits Nieuwenkamp, 1998, P. 28 See supra. 30 Explanatory Memorandum, 2000/01, 27423, no 3, P 5
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 5 in an exceptional case an exception can be made for a foetus which has passed the initial stage and which can satisfy the exception under Art. 2. However, no definitive conclusion can be derived from the Strasbourg case law as to whether the unborn foetus can fall within the ambit of Art. 2 ECHR.25 Art. 1 of the Bio-ethics Treaty couples the terms dignity and identity to human being and the notion of integrity to the term everyone . It is largely fruitless to define the term everyone considering the various interpretations of this concept in the Member States.26 The Protocol on cloning also leaves the interpretation of the notion of human being to the Member States. According to Kits Nieuwenkamp human being applies to human life from the moment of conception and the term everyone relates to life which has been born. Thereby, according to her, there appears to be a conflict between the convention and the abortion legislation in some Member States.27 According to Leenen, in the minds of the drafters of the convention the embryo s dignity is the subject of a certain degree of protection during all the development stages. From the fact that, according to Art. 18, scientific research into the embryo in-vitro is in principle allowed, it would seem that there is no absolute protection during this stage.28 6 The Embryos Bill 6.1 Objective and points of departure The Embryos Bill sets limits on the use of gametes and embryos. A number of activities are considered to be ethically impermissible and are prohibited; examples thereof are clonings29, the choosing of a baby s gender for non-medical reasons and combining cells from human and animal embryos (Arts. 24 and 25 Embryos Bill). Before adressing a number of specific details of the Embryos Bill, the aim and starting point of the bill will be discussed as well as the definition of the term embryo as mentioned in the bill. The legislator s general point of departure is human dignity and the principle of respect for human life in general. 30 Any violation of this principle of respect for human life is justified if other values, such as the welfare of the future child, the treatment of patients or the promotion of their health and the welfare of infertile couples, are considered to be of greater importance. There is no specific mention of the progressive protection of dignity. From the fact that it is forbidden to allow an embryo to develop outside the human body for finds points of departure, namely in the Hercz case, for the proposition that the foetus can derive rights from the ECHR (1994, p. 141). 25. Leenen/Gevers, 2000, p. 143. 26. Explanatory Report, Directorate of Legal Affairs, Strasbourg, January 1997, pp. 18 and 19. 27. Kits Nieuwenkamp, 1998, p. 28. 28. Leenen/Gevers, 2000, p. 144. 29. See supra. 30. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 5