By Otto Spijkers
Otto Spijkers is university lecturer in international and European law at Leiden University College (LUC), Faculty of Governance and Global Affairs of Leiden University. Before joining LUC, Otto was professor of international law at the China Institute of Boundary and Ocean Studies of Wuhan University and at the Research Institute of Environmental Law of the same university. Before moving to Wuhan, he worked at the Utrecht Centre for Water, Oceans and Sustainability Law and the Netherlands Institute for the Law of the Sea at Utrecht University. He wrote his dissertation, entitled The United Nations, the Evolution of Global Values and International Law, at the Grotius Centre for International Legal Studies of Leiden University.
Introduction
Article 90 of the Netherlands’ Constitution states that “the government shall promote the development of the international legal order.” In this contribution, I discuss the meaning and relevance of this constitutional mandate, in particular in the context of the Israeli-Palestinian conflict. The quotations in this post are taken from Dutch-language documents and have been translated literally into English by me, with some help from ChatGPT.
Article 90 of the Dutch Constitution
Article 90 is a remarkable provision. The Netherlands is the only country in the world whose Constitution so explicitly obliges its government to constantly promote the further development of the international legal order. But what does that actually mean in practice? What does such promotion involve exactly, and how is the government expected to fulfil it?
We may turn to the travaux préparatoires for a brief moment. During the constitutional revision of the early 1980s, the government initially intended to delete what is now Article 90 completely, but reconsidered after objections from various political parties. A government memorandum of 6 December 1979 explained why the government had changed its mind. The authors, Prime Minister Dries van Agt, Minister of the Internal Affairs Hans Wiegel, and Minister of Foreign Affairs Chris van der Klaauw, first clarified that “the term ‘international legal order’ is to be understood in the broad sense, as an international system based on universally applicable legal norms.” They further elaborated, and this elaboration is so beautifully idealistic and cosmopolitan that I am pleased to quote it in full:
“Since the Second World War, the [Netherlands] Government has repeatedly expressed the conviction that a system of wholly sovereign states no longer fits the challenges the present world faces and that it is therefore desirable to rebuild this system into a new world order in which national interests can, where necessary, be subordinated to more comprehensive interests. The provision included in the [Dutch] Constitution in 1953 on promoting the development of the international legal order, against the background of this conviction (which is widely shared in our country), thus primarily expresses that in the Dutch constitutional order, national sovereignty is not regarded as an absolute norm. At the same time, the pursuit of an international system based on universally applicable legal norms, in our view, also includes promoting the universal realization of human rights, in the broadest sense of the word, which is to say, both civil and political rights as well as economic, social, and cultural rights. Consequently, the promotion of the welfare of the world population can also be included under this. We therefore believe that maintaining the provision in question also expresses that global solidarity […] remains a lasting objective of government policy.”
In our current times and politics, one rarely encounters such a future-oriented, international outlook, expressing a belief in shared human values and the power of global cooperation based on solidarity. It reminds us of what type of country the Netherlands used to be. But Article 90 fortunately still stands in our Constitution, and the current (outgoing) government is thus also required to continue investing in the development of the international legal order, and does so to some extent.
Article 90 Constitution and the Israeli-Palestinian Conflict
Article 90 is frequently cited in the context of the current events in the Gaza Strip and the West Bank. For example, former ministers Jan Pronk, Jozias van Aartsen, Bernard Bot and Laurens-Jan Brinkhorst called on the cabinet in an urgent letter dated 26 March 2025 to do everything possible to stop the war in Gaza – which they, in my opinion rightly, labelled as genocide. According to them, the passive conduct of the current outgoing government is not only morally reprehensible but also in violation of Article 90 of the Dutch Constitution, the Genocide Convention, and goes against rulings of the International Court of Justice.
References to Article 90 are not limited to opinion pieces and open letters in national newspapers. In the remainder of this contribution, I focus on references to this constitutional article in several formal and institutional contexts, being (1) parliamentary motions, (2) public expressions from the group “Civil Servants and the Constitution,” and (3) the still ongoing lawsuit concerning the export and transit of components of the F-35 fighter jet from the Netherlands to Israel.
Parliamentary Motions on Article 90 Constitution
Two parliamentary motions referred to Article 90. The first was proposed on 18 January 2024 by Member of Parliament (MP) Kati Piri and others. The motion read as follows:
“The House of Parliament, […] noting that the Dutch government has enshrined the promotion of the international legal order in the Constitution; requests the cabinet, when the International Court of Justice issues provisional measures in the case between South Africa versus Israel, to respect this binding legal ruling and actively promote compliance by directly involved parties.”
This motion received 47 out of 150 votes and was therefore rejected. Only the left-progressive parties voted in favour. The first sentence of the motion clearly referred to Article 90, while the second anticipated the provisional measures ordered by the International Court of Justice on 26 January 2024. The Dutch government only responded to these measures on 12 February 2024, after pressure from Parliament, with a cautiously worded statement saying, “The Netherlands respects the ruling and calls on the parties to comply with it.” However, how that call was actually shaped and enforced remained unclear.
On 19 July 2024, the International Court of Justice issued its advisory opinion on the legal consequences of Israeli policies in the occupied Palestinian territories. This time it took considerably longer before the government responded. On 10 September 2024 did Minister of Foreign Affairs Caspar Veldkamp send a letter to Parliament. The cabinet would, he said, “in the coming period further analyse whether there is reason to adjust the current policy framework based on the Court’s opinion.” After that, it went quiet again.
Because the government went quiet for so long, Stephan van Baarle submitted a motion on 10 October 2024:
“Parliament, […] noting that the authoritative advisory opinion of the International Court of Justice sets out the applicable international law regarding the situation in the West Bank;
requests the government to, in line with Article 90 of the Constitution, promote and fully comply with the applicable international law by, in addition to continuing current efforts, seeking international support for additional efforts to end violations of international law in the West Bank.”
This motion was adopted, with 103 out of 150 votes. Only the right-wing and Christian parties voted against. Nevertheless, this adopted motion did not lead to a fundamental revision of Dutch policy.
On 23 October 2024, the Advisory Council on International Affairs (AIV) issued an advisory letter to Minister of Foreign Affairs Caspar Veldkamp, titled Towards a new direction for the Netherlands in the Israeli-Palestinian conflict. The AIV came with a clear recommendation to the government:
“Advocate both at home and abroad for compliance with obligations under international law that arise from the recent Advisory Opinion by the ICJ (19 July 2024), among other things, and recognise that complying with and protecting international law are also of geopolitical importance. […] Endorse the idea that the Netherlands has a special position in terms of compliance with international law, given its role as the host country of the International Court of Justice and the International Criminal Court, and given the provision enshrined in the Dutch Constitution that the government should promote the international legal order.”
On 9 December 2024, Minister of Foreign Affairs Caspar Veldkamp sent the cabinet’s response to the advisory letter to Parliament. In it, he reassured the MPs by stating that, “on the basis of Article 90 of the Constitution, the cabinet promotes the development of the international legal order. All states must abide by international law, and the Netherlands therefore consistently calls for this, including in multilateral fora such as the UN.” In the same letter, the cabinet finally addressed the legal consequences for the Netherlands of the advisory opinion of the International Court of Justice of 19 July 2024. Regarding this, the Minister concluded that “the cabinet will emphatically continue to implement the current national policy in response to the ICJ advisory opinion” and that it “will continue the discussions at the European level about legal implications and possible additional measures at the European level.”
On the basis of Article 90, the Dutch government is obliged to urge other states to fulfil their responsibility within the international legal order. What the Dutch government has done so far – discussions at the European level – is entirely inadequate. It is high time that it finally takes its constitutional duty seriously and acts decisively to truly safeguard the international legal order. Luísa Netto and I elaborated on this in an earlier blog post on the Verfassungsblog.
Civil Servants on Article 90 Constitution
A group of civil servants has united under the name “Civil Servants and the Constitution” and uses Article 90 as the foundation for their activism. This is evident, among other things, from their LinkedIn page, which reads:
“We are a group of Dutch civil servants who are deeply concerned about: the ongoing Israeli offensive in Gaza – which the International Court of Justice has labelled as plausible genocide -and the Dutch policy herein. […] As civil servants, we understand the importance of international law. We took an oath to the Constitution, including Article 90 which states that the government shall promote the international rule of law. It is up to politics to set out policy. But politics also has to abide by our Constitution and international treaty obligations. It is up to government officials to point out to politicians when policies (potentially) violate international law. And we take that task – that duty – very seriously. We expect our government to work tirelessly to ensure consistent compliance with international law.”
This group organizes weekly sit-ins at the Ministry of Foreign Affairs, each Thursday at 12:00 p.m. I myself spoke at one of these sit-ins on 25 July 2024 and contributed to another protest on 10 October 2024. The sit-ins still take place weekly – because unfortunately, it is still necessary to remind the government that it has a constitutional duty: to promote respect consistently and proactively for the international legal order.
The Courts on Article 90 Constitution
The most important lawsuit in this context is the one brought by Oxfam Novib, the peace movement PAX Netherlands, and The Rights Forum against the State. The central question in this proceeding is whether the Dutch courts can compel the State to intervene in the licensing of export and transit of components of the F-35 fighter jet from the Netherlands to Israel, given the clear risk that these components contribute to serious violations of international humanitarian law. I previously wrote a two-part blog post about this case on Opinio Juris.
On 12 February 2024, the Court of Appeal in The Hague ruled that the delivery of F-35 components from the Netherlands to Israel must be halted. Together with Johanna Trittenbach and Jessica Dorsey, I wrote an case note on this ruling on Opinio Juris. The State filed an appeal in cassation, and the case is currently before the Netherlands Supreme Court. The oral pleadings took place on 6 September 2024. Together with Niké Wentholt and Alma Mustafić, I wrote a brief report on those hearings. On 29 November 2024, Advocate General Paul Vlas issued his opinion. In his analysis, Vlas concluded that the actions of the State – even in the domain of foreign policy and defence – can be assessed by the courts against legal norms, provided that these norms concretely specify how the State must exercise its powers. Article 90, to which reference is made by Vlas in his conclusion, is not in itself sufficient for this, but it can play a supportive role. The Supreme Court’s ruling is expected soon. It would be highly desirable if the highest court of the land were to explicitly consider Article 90 in its ruling.
Conclusion
Article 90 of the Netherlands Constitution is not an empty phrase, but has real significance in practice. It obliges the Dutch government to promote international law and to support the institutions that uphold that legal order – such as the International Court of Justice and the International Criminal Court, both based here in the Netherlands – and to do so proactively and consistently. Precisely when other states, especially if it concerns states over which the Netherlands has influence, do not abide by these rules and thereby undermine the further development of the international legal order, this constitutional mandate becomes critically important. It is to be expected that the importance and relevance of this constitutional provision will only increase in the future. As a result, the obligation that flows from it will weigh even more heavily on the Netherlands.
A recent example is the attack by Israel and the United States on Iran, which began on 13 June 2025. In response, Sarah Dobbe submitted the following motion on 19 June 2025:
“Parliament, […] noting that Israel began a war against Iran on 13 June; noting that this attack is in violation of Article 2, paragraph 4 of the Charter of the United Nations; considering that international law must always be the guiding principle of Dutch foreign policy; declares that international law, including the Charter of the United Nations, must be the sole compass for Dutch foreign policy; requests the government to act accordingly and to comply with constitutional Article 90.”
The motion did not come close to being adopted. Only 38 Members of Parliament voted in favour. That is frankly alarming – and I personally find it exceedingly difficult to understand. Almost all experts agree that the attack by Israel and the United States on Iran was unlawful. Nevertheless, NATO Secretary General Mark Rutte chose to congratulate and thank US President Donald Trump for this “decisive action in Iran,” which he described as “truly extraordinary, and something no one else dared to do.” When Rutte was subsequently asked whether he considered the attack to be in violation of international law, he answered in the negative. So, there is still much work to be done. The duty in Article 90 is clear—it is now up to politics to take it seriously.
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