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THE STATUS OF INDIGENOUS AND MINORITY PEOPLE IN THE NETHERLANDS

THE STATUS OF INDIGENOUS AND MINORITY PEOPLE IN THE NETHERLANDS

 

Theo Brinkel*                                                                                                                   I A

 

 

 

There are no indigenous peoples - in the sense of “first nations” which have been overrun in a colonialist context - on the territory of the Netherlands. The information given below regards the linguistic and cultural minority of the Frisians, who inhabit the province of Friesland, situated in the North of the Netherlands. The majority of the inhabitants of this province are speakers of the Frisian language, which is considered to be a separate language. Frisian is closely related to Dutch, but shows a certain number of remarkable likings to English.

 

1            Historical background

 

Over the last twenty years the Netherlands has de facto become an immigration country, although active immigration policies have not been pursued. Therefore, the country has increasingly become a “multi-cultural” society. According to a recent study of the Netherlands Interdisciplinary Demographic Institute, as of 31 December 1998, the total number of the population of the Netherlands was 15.760.200, of which 2.699.200 were (first and second generation) immigrants. Of these immigrants, 1.353.200 originated from western countries, 1.346.000 from non-western countries. 299.700 came from Turkey, 299.000 from Surinam and 252.500 from Morocco.[1]

        Between 700 and 600 B.C. Frisian tribes - related to other Germanic peoples such as the Saxons - settled on the coastal clay regions of what today is called the Netherlands. In the fifth century these tribes lived along the whole of the North Sea coast in the area between the estuaries of the rivers Rhine and Elbe. In the eighth and ninth centuries, the Frisians were subjected to the Frankish empire by Charlemagne and Christianized. Friesland became a county in the Frankish empire. After the death of Charlemagne the areas he had conquered fell apart again. During the Middle Ages, the Frisian area was unilingual and autonomous, because of the loose structure of the Holy Roman Empire, of which it was part. During the sixteenth century Friesland lost this position of virtual independence and in 1579 became part of the United Dutch Republic, which struggled for independence from its Spanish overlords. Being part of the Republic meant that the Dutch language was introduced as administrative, educational and religious language.

        In the following centuries Frisian became a language used mainly at home and in rural communities. As happened elsewhere in Europe, in the nineteenth century the concern for language and culture increased. This also happened in Friesland. During the twentieth century, gradual improvements were made to the position of the Frisian language. In 1937 instruction in the Frisian language was allowed in primary schools. But bilangualism in the province of Friesland was not officially recognized until the conclusion of the “Kneppelfreed” in 1951, when Frisian was recognized as the standard language in schools. In 1980 Frisian was established as an obligatory subject in primary schools in Friesland and in 1993 this was extended to secondary schools as well.

        Presently, both the Dutch and Frisian languages are used in Friesland. For most Frisians, Frisian is their mother tongue, used at home and in primary schools. For them, knowledge of the Dutch language is acquired at school. The majority of the inhabitants of the province of Friesland considers itself to be Frisians in the first place and “Netherlander” secondly. Most political parties in the Frisian provincial council defend the Frisian language and culture. There is a Frisian National Party (“Fryske Nasjonale Partij”) which stands for more autonomy for Friesland in a federalized system, which won 8,4% of the votes at the last provincial elections (1999). The FNP is not represented in the Lower House of the national Parlia­ment. In the Upper House, the FNP is represented by one member (of a total of 75), who was elected by several regional parties of the different provinces.

        The province of Friesland is a relatively thinly populated part of the Netherlands. There are 630.539 inhabitants (2001). The total number of inhabitants of the Netherlands is 15.863.950 (January 1st, 2000). According to figures of the provincial administration, over 90% of the province=s inhabitants understand Frisian, almost three quarters are able to speak the language, 65% can read Frisian and only 17% are able to write in Frisian. The relative economic position of the province of Friesland as compared to the national average is as follows: In 1997 the average income per capita in Friesland is 8985 euro, whereas the national average income per capita is 9983 euro. 8% of the working population of Friesland is employed in agriculture and fishery, the national figure is 3%. In Friesland 8,8% of the working population is unemployed, nationally the percentage is 7,2% (Source: Centraal Bureau voor de Statistiek).

 

2            General Constitutional Aspects

 

The Kingdom of the Netherlands is a constitutional monarchy, a decentralized unitary state and a parliamentary democracy. The Constitution of the Kingdom of the Netherlands (general revision in 1983) allocates primary responsibility to the national Parliament and government. According to the Constitution the members of the Lower House are elected directly by Dutch nationals who have attained the age of eighteen on the basis of a system of proportional representation. The members of the Upper House are elected by the members of the provincial councils (parliaments).

        The legislative function in the provinces and municipalities is assigned to provincial and municipal councils, whose members are elected directly on the basis of proportionality. The executive functions are in the hands of the provincial executive and the King’s Commissioner; the executive of the municipalities consists of the municipal executive and the Burgomaster. The King’s Commissio­ners and the Burgomasters are appointed by Royal Decree.

        The unitary character of the Dutch constitutional system is shown by the fact that ordinary Acts of Parliament decide on the dissolution and establishment of provinces and municipalities, on the organization of provinces and municipalities and on the composition and powers of their executive organs, on the taxes which may be levied by the respective administrative organs and on their financial relationship with the central government.

        The Frisian minority does not have its “own” government structures. There are the regular provincial and local government structures that facilitate the Frisian language in the province of Friesland. There are, of course, several civil society organizations lobbying for more autonomy for the province, defending culture, tradition and customs, or promoting protection of heritage sites. The province of Friesland is responsible for the regulation of grammar and spelling of the Frisian language and for the protection of the Frisian language and culture. There is a national consultative body for the Frisian language, which advises the Minister of the Interior on matters concerning the Frisian language and culture. There also is a provincial advisory council, the “Berie foar it Frysk”, which is consulted by the provincial administration on matters concerning general policy development and developments in society in relation to the language policy of the province.

        The Constitution opens with a chapter on Fundamental Rights. Some of the provisions that are relevant here are:

 

1. Equality: “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.” (Article 1) “All Dutch nationals shall be equally eligible for appointment to public service.” (Art. 3) “Every Dutch national shall have the right to elect the members of the general representative bodies and to stand for election as a member of those bodies, subject to the limitations and exceptions prescribed by an Act of Parliament.”(Art. 4)

 

2. Civil rights: “Everyone shall have the rights to profess freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law.” (Art 6.1)  “The right of association shall be recognized.” (Art. 8) “The right of assembly and demonstration shall be recognized, without prejudice to the responsibility of everyone under the law.” (Art. 9.1)

 

3. Cultural rights: “The authorities shall promote social and cultural development and leisure activities.” (Art. 22.3)

 

The Constitution does not specifically address the interests of minority peoples. Rights relating to the use of the Frisian language are regulated by ordinary Acts of Parliament. The source within the Dutch legal system for legal rights for the Frisian minority is positive legislation, instituted by ordinary Acts of Parliament. Up till now, only one minority has been granted specific linguistic rights, applying to a designated area. This recognition is based on a longer standing recognition that Frisian is indeed a separate language, something, which has been confirmed by the Council of Europe. There are no general legal criteria that open the possibility for other linguistic minorities - which have not yet been officially identified - to get similar arrangements as those regarding the Frisian language. The principle of proportional representation, however, is specifically intended to allow for representation of minorities of various kinds in the legislative assem­blies.

 

3            Legislation regarding minority rights

 

Linguistic rights in the public sphere are dealt with in the General Administrative Law Act since 1995. The general principle is that public institutions and the persons working under their authority will use the Dutch language, unless determined otherwise by law. The Frisian language may be used verbally in dealing with national public institutions located in Friesland, and both verbally and in written documents in dealing with public institutions, which do not belong to the national government. These provisions do not apply if the use of the Frisian language would lead to a disproportionate burden on administrative capacity.

        In the same law, provisions are made for the translation in Dutch of documents in the Frisian language, where necessary, for instance when they regard generally binding guidelines or rules, or whenever an inhabitant of Friesland so requests. In meetings of representative organs located in Friesland, everyone may use the Frisian language and all that is said is reported in Frisian. In legal proceedings, a party, an interested party or a witness in a legal court residing in Friesland may use Frisian. In penal and administrative proceedings, the costs of translation will be paid by the state, in civil procedures; the costs will either be paid by the state or by one of the parties.

        The Netherlands is member state of the Council of Europe. Apart from the European Convention for the Protection of Human Rights and Fundamental Freedoms, member states of the Council of Europe have adopted the European Charter for Regional or Minority Languages (1992). This Charter was ratified by the Netherlands in 1996.

        Ratification of the Charter necessitated the extensive revision an extensive administrative agreement (of 1989) between the national government and the province of Friesland in the fields of education, science, culture, media, the judiciary, public administration and care. The revised administrative agreement was signed on 5 June 2001. The conclusion of the agreement is an affirmation of the joint responsibility of the national government and the province for the use and promotion of the Frisian language and culture.

        On 5 June 2001, an administrative agreement was signed between the national government and the province of Friesland. This agreement entailed a broad range of measures to be undertaken by both the national government and the province in question aimed at protection and promotion of the Frisian language and culture. Some examples of these measures are:

1.     increase of subsidies to promote the use of Frisian in childcare facilities;

2.     increased funding for educational purposes;

3.     the guaranteeing by the national government of the continued existence of Frisian as a university and higher education subject;

4.     increased subsidies for cultural purposes, such as theatres and museums;

5.     support for and promotion of municipal ordinances regulating the use of Frisian as administrative language;

6.     adaptation of the Civil Code allowing the drafting of official texts (such as notarial acts) in Frisian;

7.     the promotion of international cultural and linguistic relations with Frisian minorities in Germany.

 

The rights of the Frisian minority have been defined in terms of opportunities and support for the use of the Frisian language on the territory of the province of Friesland. No specific groups or minorities as such are addressed in the relevant legislation. In the preamble to the above mentioned Administrative Agreement the state expressed its role vis-à-vis the Frisian language and culture (note: not the minority as such) as that of supporting the desirability of the continued existence and promotion of the Frisian language and culture as well as of implementing a generous policy.

        Apart from a general adherence to the equality principle and the system of proportional representation, there are no specific provisions to guarantee the political participation of Frisians in national or regional governments. There are no exemptions from general legislation for the Frisian minority. On the other hand, the Administrative Agreement did open the door to positive action towards the Frisian language and culture. The preamble to the Administrative Agreement specifically mentions “the desirability of granting the Frisian language and culture a proportional chance of development in comparison with the Dutch language and culture”.

        As a result of the administrative agreement between the national government and the province of Friesland an interdepartmental working group was installed, which meets twice every year in order to monitor together with the province of Friesland the progress of the implementation of the measures resulting from the administrati­ve agreement. The working group reports to the national Parliament and the provincial council of Friesland on a yearly basis.

        There are no special courts established in the Netherlands to hear disputes between representatives of minority peoples. There is, however, the Equal Treatment Commission, an independent organization established by the govern­ment, which has powers to review complaints it receives to see if the regulations on equal treatment have been violated. The Commission deals with equal treatment involving, amongst others, religion, race, gender, nationality. The cases under its consideration may not only involve representatives of minorities and public bodies, but private parties as well. The Netherlands does not have a constitutional court. The national legislature is considered sovereign in deciding whether legislation complies with the Constitution.

 

4            International Treaties

 

As was mentioned above, in 1996 the Netherlands ratified the European Charter for Regional or Minority Languages of the Council of Europe. The Netherlands has not ratified ILO Convention 107, but it did ratify Convention 169 as of 2 February 1998. ILO Convention 169 was signed and ratified by the Netherlands, because the government wanted to settle a good example and promote that other countries would sign the treaty as well. It was felt that it would contribute to the legal protection of indigenous peoples. In its bilateral relations, the Dutch government supports development projects for indigenous peoples, as long as these are supported by the indigenous peoples themselves and comply with their cultures.[2]

        In its international policies, the Dutch government declares to work towards the coming about of the Draft Declaration concerning the Rights of Indigenous Peoples and the establishment of a permanent forum within the framework of the UN.[3]

        The Netherlands is party to the Optional Protocol of the International Covenant on Civil and Political Rights, which came into force as of 23 March 1976. The jurisdiction of the Human Rights Committee has not been invoked by an individual or group as mentioned above in the Netherlands.


Notes

*              Tilburg University

[1]             Bevolkingsvraagstukken in Nederland anno 2000, ed. Nederlands Interdiscipli­nair Demografisch Instituut (The Hague 2000) 90.

[2]             Inheemse volken in het buitenlands beleid en in de ontwikkelingssamenwer­king, Brief van de Minister voor Ontwikkelingssamenwerking aan de Tweede Kamer der Staten Generaal (The Hague 1998) 4.

[3]             Inheemse volken in het buitenlands beleid en in de ontwikkelingssamenwer­king, Brief van de Minister voor Ontwikkelingssamenwerking aan de Tweede Kamer der Staten Generaal (The Hague 1998) 4.


Cite as: Theo Brinkel, The Status of Indigenous and Minority People in the Netherlands, vol 6.4 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2002), <http://www.ejcl.org/64/art64-1.html>

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