HUMAN RIGHTS AND PRIVATE CORPORATIONS A DUTCH LEGAL PERSPECTIVE Sophie van Bijsterveld" IV C2 Introduction The applicability of human rights to private parties, including private corporations, is a theme of doctrinal constitutional interest The basic question is whether standards which are meant to function in the relationship between the private individual and the state,and which guarantee the private individual rights vis-a-vis the state are also plicable in relationships between private individuals, and, if so, which legal techniques can be used to construe such an application Of particuar interests is how courts, confronted with these questions, contribute to the development of the aw in this field. In the Netherlands, the doctrinal debate on these issues reached its height in the 1970s and 1980s. It coincided with the adoption of a new Constitution in 1983 This Constitution came into force after a process of general revision, the first proposals of which were introduced in Parliament in the second half of the 1970s The revision was of particular im portance in the field of humanrights While these questions remain relevant, the socal and legal contexts in which these questions appear have undergone a significant change in recent decades. One factor of importance is the changing role of the state in the development of lw Traditionally, in the Netherlands, the Legislature is the preem inent lawmaker. Not surprisingly, the Constitution of 1983 likewise attributes a strong role to the nationa (parliamentary )Legislature. Awareness of the lim itations of the regulatory power of the state has, however, manifested itself and opened the door to altemative approaches. This also influences the debate on human rights and private Another important factor is the increased role of international law within the national legal order. In terms of this study, it is of interest that in the fomulation of international human rights standards, the relevance of private parties, notably corporate entities, is more evident than in national human rights guarantees. It is urther reflected in the responsibility of the national state under international law to ensure hu Iman rights in private(corporate)contexts Third, the human rights discussion itself has progressed. This is particulrly apparent in the manner in which the various actors, whether private groups or persons or public bodies, are involved in the human rights debate and the role they are perceived to play by others Fourth, not only has their been a na tural shift in the interest in particular human rights in private corporations, the discussion is currently framed in a much broader context of that of corporate social responsibility and ethicalentrepreneurship This essay analyses and discusses the developments in the legal debate on the applicability of human rights standards to priva te corporations in the Netherlands Although the focus is on the Netherlands, it is not easy to isolate the topic from the broader discussion of human rights and multinational enterprises. General features of the latter discussion will, therefore, resonate throughoutthis essay as well Associate Professor of European and Public Intemational Law, Faculty of Law, Tilburg University
HUMAN RIGHTS AND PRIVATE CORPORATIONS A DUTCH LEGAL PERSPECTIVE Sophie van Bijsterveld* IV C 2 1 Introduction The applicability of human rights to private parties, including private corporations, is a theme of doctrinal constitutional interest. The basic question is whether standards which are meant to function in the relationship between the private individual and the state, and which guarantee the private individual rights vis-à-vis the state are also applicable in relationships between private individuals, and, if so, which legal techniques can be used to construe such an application. Of particular interests is how courts, confronted with these questions, contribute to the development of the law in this field. In the Netherlands, the doctrinal debate on these issues reached its height in the 1970s and 1980s. It coincided with the adoption of a new Constitution in 1983. This Constitution came into force after a process of general revision, the first proposals of which were introduced in Parliament in the second half of the 1970s. The revision was of particular importance in the field of human rights. While these questions remain relevant, the social and legal contexts in which these questions appear have undergone a significant change in recent decades. One factor of importance is the changing role of the state in the development of law. Traditionally, in the Netherlands, the Legislature is the preeminent lawmaker. Not surprisingly, the Constitution of 1983 likewise attributes a strong role to the national (parliamentary) Legislature. Awareness of the limitations of the regulatory power of the state has, however, manifested itself and opened the door to alternative approaches. This also influences the debate on human rights and private corporations. Another important factor is the increased role of international law within the national legal order. In terms of this study, it is of interest that in the formulation of international human rights standards, the relevance of private parties, notably corporate entities, is more evident than in national human rights guarantees. It is further reflected in the responsibility of the national state under international law to ensure human rights in private (corporate) contexts. Third, the human rights discussion itself has progressed. This is particularly apparent in the manner in which the various actors, whether private groups or persons or public bodies, are involved in the human rights debate and the role they are perceived to play by others. Fourth, not only has their been a natural shift in the interest in particular human rights in private corporations, the discussion is currently framed in a much broader context of that of corporate social responsibility and ethical entrepreneurship. This essay analyses and discusses the developments in the legal debate on the applicability of human rights standards to private corporations in the Netherlands. Although the focus is on the Netherlands, it is not easy to isolate the topic from the broader discussion of human rights and multinational enterprises. General features of the latter discussion will, therefore, resonate throughout this essay as well. * Associate Professor of European and Public International Law, Faculty of Law, Tilburg University
VAN BIISTERVELD Human Rights and Private Entities The Emergence of the Theme The general revision of the Constitution in 1983 provided an important impetus for the debate on human rights and their application to private parties. The revision, the run-up to which started in the 1950s with the establishment of an advisory committee in this field, was actually set in motion in the mid-1970s As became clear in an early stage, the Constitution would be of specia Im portance for the protection of fundamental rights. The changes introduced to the Constitution consisted of an update and reformulation of fundamental rights to meet modern demands, the introduction of new rights, and the systematic incorporation of social rights in the Constitution. Furthermore, the fundamental rights were regrouped and combined in one chapter, the first chapter of the Constitution Of paramount importance was also the elaboration of the theory and principles of the protection of constitutionally guaranteed fundamental rights. These principles nd theories were agreed upon in the process of adoption between Parliament and govemment and were implicitly incorporated in the text. They were not actually plicated in the Constitution itself For the present purpose of identify ing the significance of the Constitution for the applicability of fundamental rights standards to private entities, two specific dimensions of this doctrinal discussion are important First, the Constitution introduced a strict system for restricting fundamental rights, by specifying the competent body for the restriction of fundamental rights, by defining purposes to be met by the restriction and/or the introduction of specific procedures to be followed. 3 The Legislature plays a crucial role in this respect.In ome instances, the Constitution actually assigns the Legislature the task of regulation. Article 10, for instance, states 1. Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament. 2. Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data 3. Rules concerning the rights of persons to be informed of data recorded More in general on the Dutch Constiution, see Sophie C. van Bistervel, The Constitution n the Legal Order of the Netherlands, n EH Hondius(Ed ) Netherlands Report to the Fifteenth Intemational Congress of Comparative La, Bristl 1998, Antwerpen: Intersentia RechtsweteT- schappen1998p.347364. In this essay, the words human rights and fundamental rights are interchangeable. In line with (Dutch) usage, human rights will be used to refer to the nternational context. Fundamental rights will be used to refer to therights guaranteed by the( Dutch) Constitution. Generally speaking, the Legislature s the competent body for restricting fundamental rights, Law refers to an Act of Parlament; the phrase by or pursuant to law, the verb regulate the noun rules refers to the competence of the Legislature to delegate its power to make restrictions to
2 VAN BIJSTERVELD 2 Human Rights and Private Entities The Emergence of the Theme The general revision of the Constitution in 1983 provided an important impetus for the debate on human rights and their application to private parties.1 The revision, the run-up to which started in the 1950s with the establishment of an advisory committee in this field, was actually set in motion in the mid-1970s. As became clear in an early stage, the Constitution would be of special importance for the protection of fundamental rights. 2 The changes introduced to the Constitution consisted of an update and reformulation of fundamental rights to meet modern demands, the introduction of new rights, and the systematic incorporation of social rights in the Constitution. Furthermore, the fundamental rights were regrouped and combined in one chapter, the first chapter of the Constitution. Of paramount importance was also the elaboration of the theory and principles of the protection of constitutionally guaranteed fundamental rights. These principles and theories were agreed upon in the process of adoption between Parliament and government and were implicitly incorporated in the text. They were not actually explicated in the Constitution itself. For the present purpose of identifying the significance of the Constitution for the applicability of fundamental rights standards to private entities, two specific dimensions of this doctrinal discussion are important. First, the Constitution introduced a strict system for restricting fundamental rights, by specifying the competent body for the restriction of fundamental rights, by defining purposes to be met by the restriction and/or the introduction of specific procedures to be followed.3 The Legislature plays a crucial role in this respect. In some instances, the Constitution actually assigns the Legislature the task of regulation. Article 10, for instance,states: 1. Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament. 2. Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data. 3. Rules concerning the rights of persons to be informed of data recorded 1 . More in general on the Dutch Constitution, see Sophie C. van Bijsterveld, The Constitution in the Legal Order of the Netherlands , in E.H. Hondius (Ed.), Netherlands Report to the Fifteenth International Congress of Comparative Law, Bristol 1998, Antwerpen: Intersentia Rechtswetenschappen 1998, p. 347 364. 2 . In this essay, the words human rights and fundamental rights are interchangeable. In line with (Dutch) usage, human rights will be used to refer to the international context. Fundamental rights will be used to refer to the rights guaranteed by the (Dutch) Constitution. 3 . Generally speaking, the Legislature is the competent body for restricting fundamental rights. Law refers to an Act of Parliament; the phrase by or pursuant to law , the verb regulate the noun rules refers to the competence of the Legislature to delegate its power to make restrictions to fundamental rights
HUMAN RIGHTS ANDPRIVATE CORPORATIONS concerming them and of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament The Act of Parliament implementing this prov ision, the Data Protection Act, applies to public authorities and priva te parties alike. 4 Even if the Constitution does not conta in an actua l assignment to the legislature many areas of fundamental rights protection are inconceivable without the stabilis ing hand of the Legislature. The right to assocation, for instance, is not feasible without legislation on legal entities. Thus, the role of the Legislature is twofold to set out and shape the fundamental rights concemed and to restrict them, in creating a lega structure and defining rights and duties for the constituting parties. In doing so, the third-party application comes to the fore. Moreover, even if the Constitution does not necessarily imply further regulation, the Legislature has tumed to implementing the Constitution. Thus, as a sequel to Article I of the Constitution, which guarantees equal treatment and non-discrim ination, a General Equal Treatment Act has been stablished This Act is applicable to public and private parties as well, in particuar The role of the Legislature in this field is accentuated through such mechanisms as the ban on judical review of parliamentary legislation on its constitutionality Article 120 Const ) This means that the Legislature is the first and foremost authority with respect to the interpretation of constitutionally guaranteed fundamental rights. The stress on the Legislature as the competent authority has led to a flow of new and revised legislation. It must be said that increasingly these areas gaining a European dimension as well in that, in whole or in part, these laws are also meant to implement European Directives. 6 So far, we have mentioned only classic fundamental rights. Obviously, social ights are of m portance as well. Thus, Article 19(1)of the Constitution makes the Ths was formerly the Wet persoonsregistraties, currently, the Wet beschenmng persoonsgegevens his topc has a European dimension as well n that the current Act also implements the European Data Protection Directive, a Directive that Is amed atsettng privacy standards to public and private bodies as well Artcle I Constitution: All persons n the Netherlands shall be treated equally in equal circumstances. Discrimnation on the grounds of religion, belief, politcal opinon, race, or sex or on any other grounds whatsoever shall notbe permitted. For the English textof the General Equal Treatment Act [Algemene wetgelijike behandeling), see the Webs ite of the Equal Treatment Commission, an independent complant body, set up under the Act www.cgbnlMentionmustbemadeofArticle13Ec,whichcontainsanequaltreatmentprovision and has served as the legal bass for two Council Directives, to be implemented by the member States Apart from the examples we have already mentioned, the EC is involved in the creation of a legal framework for the establshmentof European legal entities. A European works councils Directive is established. A Directive conceming the information and consultation of workers s n the process of establishment Furthermore, the EC is strongly nvolved in the fed ofsocial law and environmental law(see further below)
3 HUMAN RIGHTS AND PRIVATE CORPORATIONS concerning them and of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament. The Act of Parliament implementing this provision, the Data Protection Act, applies to public authorities and private parties alike.4 Even if the Constitution does not contain an actual assignment to the Legislature, many areas of fundamental rights protection are inconceivable without the stabilising hand of the Legislature. The right to association, for instance, is not feasible without legislation on legal entities. Thus, the role of the Legislature is twofold: to set out and shape the fundamental rights concerned and to restrict them, in creating a legal structure and defining rights and duties for the constituting parties. In doing so, the third-party application comes to the fore. Moreover, even if the Constitution does not necessarily imply further regulation, the Legislature has turned to implementing the Constitution. Thus, as a sequel to Article 1 of the Constitution, which guarantees equal treatment and non-discrimination, a General Equal Treatment Act has been established.5 This Act is applicable to public and private parties as well, in particular corporate entities. The role of the Legislature in this field is accentuated through such mechanisms as the ban on judicial review of parliamentary legislation on its constitutionality (Article 120 Const.). This means that the Legislature is the first and foremost authority with respect to the interpretation of constitutionally guaranteed fundamental rights. The stress on the Legislature as the competent authority has led to a flow of new and revised legislation. It must be said that increasingly these areas are gaining a European dimension as well in that, in whole or in part, these laws are also meant to implement European Directives.6 So far, we have mentioned only classic fundamental rights. Obviously, social rights are of importance as well. Thus, Article 19(1) of the Constitution makes the 4 . This was formerly the Wet persoonsregistraties; currently, the Wet bescherming persoonsgegevens. This topic has a European dimension as well in that the current Act also implements the European Data Protection Directive, a Directive that is aimed at setting privacy standards to public and private bodies as well. 5 . Article 1 Constitution: All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, or sex or on any other grounds whatsoever shall not be permitted. For the English text of the General Equal Treatment Act [Algemene wet gelijke behandeling], see the Website of the Equal Treatment Commission, an independent complaints body, set up under the Act, www.cgb.nl. Mention must be made of Article 13 EC, which contains an equal treatment provision, and has served as the legal basis for two Council Directives, to be implemented by the Member States. 6 . Apart from the examples we have already mentioned, the EC is involved in the creation of a legal framework for the establishment of European legal entities. A European works councils Directive is established. A Directive concerning the information and consultation of workers is in the process of establishment. Furthermore, the EC is strongly involved in the field of social law and environmental law (see further below)
VAN BIISTERVELD promotion of sufficient employment a concern of the authorities. The second section states that rules conceming the legal status and protection of working persons and conceming co-determ ination shall be aid down by Act of Parlia ment. The third section continues with the recognition of the right of every Dutch national to a free hoice of work without prejudice to the restrictions laid down by or pursuant to Act of Parliament. The Constitution makes it the concen of the authorities to keep the country habitable and to protect and improve the environment (Article 21) and requires the authorities to take steps to promote the health of the population (Article 22). These provisions clearly imply public authority activity also with Second, the doctrinal debate on fundamental rights in the context of the revision of the Constitution also more directly concerned Drittwirkung, the private -party application of fundamental rights. In short, private-party application was accepted and, in singl ing out how such an application could be legally construed, five options were distinguished. These ranged from the explication of rights and duties in a ivate(corporate)context through the explicit interference of the Legislature to application by the courts. This judicial application was seen to take place through the Interpretation of general and vague concepts(for instance, that of a good employer ) The courts could also conclude that the recognition that a fundamenta right constituted an independent legal interest that needs to be taken into account in balancing private parties interests. Such a right could also present itself as an interest that can only be departed from on the grounds of other weighty circumstances. Finally, a fundamental right could be perceived asa right that should irectly be applied and for which the grounds for constitutional restriction need to be observed Of course, this enumeration and the vary ing degrees of private-party application Ire rather theoretical. Nevertheless, it does give an idea of how the courts can, and actually do, take into account fundamental rights in private-party relationships Attention was also pa id to the reasons underly ing the desirability of private party application of fundamental rights. Thus, we can mention socil-economic developments in general, the emergence of powerful private conglomerates, technical developments, the fading of borders between classic legal spheres, and the general increase in attention to human rights after the Second World War. Long before the debate on third-party application of fundamental rights came to the fore, this application was a reality avant-la-lettre and by and large took place along the line of the five degrees mentioned above. In many fields of law, such as social law, especially working hours law and aw on working conditions, concems that we would now label fundamental rights were given legal recognition by the egislature. Open notions in civil law such as good employer played a role. Thus, See S.C. van Bipterveld, Inleiding Hoofdstuk 1, n A K. Kockkock (red ) De Grondwet Een systemntisch en artikelsgewjis commentar, 3de druk, Deventer: WEJ Tjeenk Willnk 2000,p
4 VAN BIJSTERVELD promotion of sufficient employment a concern of the authorities. The second section states that rules concerning the legal status and protection of working persons and concerning co-determination shall be laid down by Act of Parliament. The third section continues with the recognition of the right of every Dutch national to a free choice of work without prejudice to the restrictions laid down by or pursuant to Act of Parliament. The Constitution makes it the concern of the authorities to keep the country habitable and to protect and improve the environment (Article 21) and requires the authorities to take steps to promote the health of the population (Article 22). These provisions clearly imply public authority activity also with respect to private corporations. Second, the doctrinal debate on fundamental rights in the context of the revision of the Constitution also more directly concerned Drittwirkung , the private-party application of fundamental rights. In short, private-party application was accepted and, in singling out how such an application could be legally construed, five options were distinguished. These ranged from the explication of rights and duties in a private (corporate) context through the explicit interference of the Legislature to application by the courts. This judicial application was seen to take place through the interpretation of general and vague concepts (for instance, that of a good employer ). The courts could also conclude that the recognition that a fundamental right constituted an independent legal interest that needs to be taken into account in balancing private parties interests. Such a right could also present itself a s an interest that can only be departed from on the grounds of other weighty circumstances. Finally, a fundamental right could be perceived as a right that should directly be applied and for which the grounds for constitutional restriction need to be observed.7 Of course, this enumeration and the varying degrees of private-party application are rather theoretical. Nevertheless, it does give an idea of how the courts can, and, actually do, take into account fundamental rights in private-party relationships. Attention was also paid to the reasons underlying the desirability of private-party application of fundamental rights. Thus, we can mention social-economic developments in general, the emergence of powerful private conglomerates, technical developments, the fading of borders between classic legal spheres, and the general increase in attention to human rights after the Second World War.8 Long before the debate on third-party application of fundamental rights came to the fore, this application was a reality avant-la-lettre and by and large took place along the line of the five degrees mentioned above. In many fields of law, such as social law, especially working hours law and law on working conditions, concerns that we would now label fundamental rights were given legal recognition by the Legislature. Open notions in civil law such as good employer played a role. Thus, 7 . Naar een nieuwe Grondwet? (Documentatiereeks, s-Gravenhage 1968 ff. ), Ia, p. 16. 8 . See S.C. van Bijsterveld, Inleiding Hoofdstuk 1 , in A.K. Koekkoek (red.), De Grondwet. Een systematisch en artikelsgewijs commentaar, 3de druk, Deventer: W.E.J. Tjeenk Willink 2000, p. 60-61 (p. 45-62)
HUMAN RIGHTS ANDPRIVATE CORPORATIONS religious practices of employers, for instance, with respect to the observance of holy days are and were taken into account. To illustrate this, the Supreme Court concluded in a 1984-ruling that the absence of a worker who was denied a day off to celebrate an Islamic holiday although she had asked for this well in advance did not constitute an urgent reason for dism issal on the spot. In reaching this conclusion, the court entered into a careful balancing of interests of both the worker and the employer. In so far as they are not regulated by aw directly, these and other human rights related interests also find expression in collective labour agreements. Privacy concems, concems of conscientious objection, and freedom of opinion likewise feature in law. In part, they will be regulated, in other cases courts will step in. o Thus, a company who hada television circuit installed to monitor the workplace was ordered by the court to remove this. The court, concluded that the employer did not act as a good employer by using the telev ision-circuit for reasons that were not more important than those which he had brought forth. I The fact that corporations cannot act at will is also made clear in the Genera Equal Treatment Act. The Act prohibits direct and indirect discrimination between persons on the grounds of religion, belief, political opinion, race, sex, heterosexualor hom osexual orientation or civil status in a wide field of societal relevant act ie It allows for making distinctions by way of exception(for instance, if an indirect discrim ination is objectively justifiable, or if the corporation concerned is itself based on a religion or belief). If it is likely that indeed such a distinction has been made, the corporation must succeed in making plausible that the discrim ination is objectively justifa ble or that the exception is indeed applicable. Thus, allocating the burden of proof plays a role as well. This approach is also in line with that of the Court of Justice of the ec in these matters Centrifugal Forces: The Changing role of the State The time in which the run-up to the revision of the Constitution took place was one of predom inant belief in the steering capacity of the state and in the idea that society could be shaped through law. This found expression in the strong role for the egislature in the Constitution, both with respect to shaping fundamental rights law and restricting fundamental rights. In so far as the law referred to in the Constitution was parliamentary law, the Constitution had a strong centralising effect as well As early as thel980s, a widespread awareness had taken hold that classic regulation was not likely to change society. As a steering mechanism, legislation had only little 9.HR30 maart1984,AB1984,366 For the role of the courts, see Fried van Hoof, Intemational Human Rights obligations for Companies and Domestic Courts; an Unlikely Combination?, n Monique Castermans-Holleman Fried van Hoof, Jacqueline Smith(ed h, The Role of the Nation-State n the 2 century: Human Rights, Intemational Organisations and Foreign Policy: Essays m Honourof Peter Baehr, Kluwer Law International, Den Haag/Boston/London 1998, p. 47-59 Pr Rb Roermond, 12 September 1985, KG 1985, 299
5 HUMAN RIGHTS AND PRIVATE CORPORATIONS religious practices of employers, for instance, with respect to the observance of holy days are and were taken into account. To illustrate this, the Supreme Court concluded in a 1984-ruling that the absence of a worker who was denied a day off to celebrate an Islamic holiday, although she had asked for this well in advance, did not constitute an urgent reason for dismissal on the spot.9 In reaching this conclusion, the court entered into a careful balancing of interests of both the worker and the employer. In so far as they are not regulated by law directly, these and other human rights related interests also find expression in collective labour agreements. Privacy concerns, concerns of conscientious objection, and freedom of opinion likewise feature in law. In part, they will be regulated, in other cases courts will step in.10 Thus, a company who had a television circuit installed to monitor the workplace was ordered by the court to remove this. The court, concluded that the employer did not act as a good employer by using the television-circuit for reasons that were not more important than those which he had brought forth.11 The fact that corporations cannot act at will is also made clear in the General Equal Treatment Act. The Act prohibits direct and indirect discrimination between persons on the grounds of religion, belief, political opinion, race, sex, heterosexual or homosexual orientation or civil status in a wide field of societal relevant activities. It allows for making distinctions by way of exception (for instance, if an indirect discrimination is objectively justifiable, or if the corporation concerned is itself based on a religion or belief). If it is likely that indeed such a distinction has been made, the corporation must succeed in making plausible that the discrimination is objectively justifiable or that the exception is indeed applicable. Thus, allocating the burden of proof plays a role as well. This approach is also in line with that of the Court of Justice of the EC in these matters. 3 Centrifugal Forces: The Changing role of the State The time in which the run-up to the revision of the Constitution took place was one of predominant belief in the steering capacity of the state and in the idea that society could be shaped through law. This found expression in the strong role for the Legislature in the Constitution, both with respect to shaping fundamental rights law and restricting fundamental rights. In so far as the law referred to in the Constitution was parliamentary law, the Constitution had a strong centralising effect as well. As early as the1980s, a widespread awareness had taken hold that classic regulation was not likely to change society. As a steering mechanism, legislation had only little 9 . HR 30 maart 1984, AB 1984, 366. 10 . For the role of the courts, see Fried van Hoof, International Human Rights Obligations for Companies and Domestic Courts; an Unlikely Combination? , in Monique Castermans-Holleman, Fried van Hoof, Jacqueline Smith (ed.), The Role of the Nation-State in the 21st century: Human Rights, International Organisations and Foreign Policy; Essays in Honour of Peter Baehr, Kluwer Law International, Den Haag/Boston/London 1998, p. 47-59. 11 . Pr. Rb. Roermond, 12 September 1985, KG 1985, 299