The Dutch district court of The Hague declared on 3 February 2010 the Amendment of the Dutch Sanction Regulation 2007 (“Amendment”) non-binding in a procedure initiated by Iranian nationals and the Actiegroep Iraanse studenten (Action group Iranian students). This Amendment has been adopted in 2008 and prohibits granting Iranian nationals access to locations and data files of specified locations as well as providing without or in the absence of an exemption of the Minister of Education, Culture and Science special teaching or education to Iranian nationals for certain specified areas of education and research. The Dutch district court considered the Amendment as a violation of Article 26 of the International Covenant of Civil and Political Rights (“ICCPR”).
The Dutch Minister of Foreign Affairs and the Minister of Education, Science and Culture adopted on 23 June 2008 the Amendment. This Amendment is based on the United Nations (“UN”) Security Council Resolution 1737 (2006) (“Resolution 1737”) and Common Position 2007/140/CFSP (“CP”). Resolution 1737 and the CP stipulate a series of measures against Iran.
Article 17 of Resolution 1737 stipulates the following: “[The Security Council] Calls upon all States to exercise vigilance and prevent specialized teaching or training of Iranian nationals, within their territories or by their nationals, of disciplines which would contribute to Iran’s proliferation sensitive nuclear activities and development of nuclear weapon delivery systems”.
As a result of resolution 1737 the Council of the European Union has adopted on 27 February 2007 the CP. Article 6 CP provides that EU Member States shall in accordance with their national legislation, take the necessary measures to prevent specialized teaching or training of Iranian nationals, within their territories or by their nationals, of disciplines which would contribute to Iran's proliferation sensitive nuclear activities and development of nuclear weapon delivery systems.
The Amendment provides for two prohibitions. Firs of all, it is prohibited to grant Iranian nationals access at the locations and data files as indicated in the Annex to the Amendment. Secondly, it is prohibited to provide without or in the absence of an exemption of the Minister of Education, Culture and Science special teaching or education to Iranian nationals for certain specified areas of education and research. The Annex to the Amendment identifies the areas of education and research concerned.
The Amendment has led to resistance because of the discrimination on the basis of nationality contained in this Amendment. Three Iranian Nationals, student bachelor chemistry, PhD Philosophy of techniques and a professor experimental nuclear physics as well as the Action Group Iranian Students initiated proceeding against the Dutch State. They have requested the court to withdraw or to declare non-binding the Amendment as the Amendment infringes – in their opinion- the equality principle, Article 1 of the twelfth Protocol of the European Convention of Human Rights (“ECHR”), Article 26 ICCPR and Article 12 of the EC-Treaty because of the direct distinction on the basis of nationality, race and ethnicity. In addition, they argued that the Amendment violates Article 2 of the First Protocol of the ECHR and Article 14 ECHR, because the Amendment restricts applicants’ independent right of education.
The Court reviewed the Amendment against Article 26 ICCPR and ruled that the Amendment violates Article 26 ICCPR, because an objective and reasonable justification for the distinction based on nationality was lacking. The Court thereby considers the aim of the Amendment as such as legitimate, but considered the Amendment not as suitable and proportional for the aim to be achieved. First of all, the Amendment is not suitable as the Amendment does not differentiate between persons that form a risk for the extension of nuclear activities of Iran. Moreover, the Amendment does not prevent that persons with a different nationality other than the Iranian nationality will contribute to the extension of nuclear activities by Iran with their knowledge obtained in the Netherlands and obtained by Dutch institutions. With respect to the requirement of proportionality, the Court considered that there are less drastically alternatives, such as tightening of already existing security and control measures. The Court refers in this respect to the visa measures adopted by Denmark and France.
The Amendment has been declared non-binding as the discrimination on the basis of the Iranian nationality was not fulfilling the criteria of proportionality and suitability as required by Article 26 ICCPR. It will be interesting to see what the Dutch State will do.