Strengthening Constitutional Identity Where There Is None: The Case of the Netherlands

Abstract

Recently, many European countries have moved towards codification of international human rights law. Aiming for a deeper socio-legal understanding of the rationale behind these processes, this article discusses one country – the Netherlands. It looks at the rationale behind, and the outcomes of the 2009-2010 Constitutional Review Commission, mandated to advise on the relationship between the national and the international legal orders and the inclusion of certain human rights into the Constitution. Both rationale and outcome, it is argued, can be understood by focusing on Rosenfeld’s three aspects of constitutional identity: the actual text of the constitution, constitutional culture and the interplay between the constitution and national identity. The Dutch constitution is layered, sober, incomplete and relatively unimportant, with internationalism as its main distinguishing feature. The political rationale for Dutch constitutional revision was, contrary to common understanding, to use the constitution as a bulwark rather than a bridge vis-à-vis the international legal order thus foreseeing a new, more symbolic role for the Constitution. The fact that such strengthening of constitutional identity did not materialise is explained by the culture of pragmatic relativising of the Constitution and, paradoxically, the fact that commitment to internationalism is the only pronounced element of Dutch constitutional identity.