International and European Union Law: Openness as Identity?

Unlike many European legal systems, Dutch constitutional law does not use the concepts of “constitutional identity” or “national identity” as terms of art. The Dutch Constitution lacks an unamendable core; all provisions can be changed or removed, including the 2022 clause obliging protection of fundamental rights and democracy based on the rule of law. Typical for Dutch constitutional law is however its openness to international and EU law. Since 1953, the Constitution has granted international treaties direct effect and primacy, even over constitutional provisions. This openness compensates for the prohibition of constitutional review, making treaties—particularly the European Convention on Human Rights—crucial for protecting fundamental rights. However, this reliance on external legal sources shifts authority from national constitutional standards to international bodies, which lack the democratic legitimacy that the Constitution has and can impose only minimum standards. This openness has defined Dutch constitutional practice. Yet, it is also an unsettling feature of Dutch constitutional law, supporting the rule of law in some contexts but potentially undermining it in others, particularly when international law itself does not meet constitutional standards or when international bodies fail to uphold fundamental rights effectively. Accordingly, while its openness to international law is a typical feature of the Dutch legal order, it is not necessarily essential.