The Dutch Confession: Compliance, Leadership and National Identity in the Human Rights Order

Abstract

As international human rights governance has evolved, it has regulated state action toward individuals in areas that were once at the discretion of states. This change has raised liminal questions concerning authority and leadership. To address these questions, we examine the interaction of the Netherlands and the European Court of Human Rights in cases concerning immigration and asylum. As the Netherlands has a history of self-proclaimed leadership in rights protection, an analysis of the Court’s series of rebukes of the Netherlands yields particularly insightful findings.

We find that the shift in rights decision-making has enhanced lawyers’ standing in the Netherlands’ domestic context in ways that enable these actors and the Court to increase international regulation of the Dutch state and that creates greater autonomy of the law from the Dutch state. At the same time, these dynamics challenge the domestic political culture by undermining national myths of the Dutch as uniquely enlightened human rights leaders. These changes demonstrate a shift in the qualities of human rights leadership, from a moralistic posture to a confessional one. Leadership, as made tangible in the reputation and positions taken before an international judicial body, now requires a capacity to express humility and to join in in a shared human rights project.