The History and Future of the Legal Autonomy of Fryslân by Tahrim Ramdjan

The History and Future of the Legal Autonomy of Fryslân An Examination of the Swinging Pendulum of Centralisation in the Development of the Dutch State

Tahrim T.T.K. Ramdjan (11315199 Law) University of Amsterdam Faculty of Law

College of Politics, Psychology, Law & Economics

Bachelor’s Thesis 19 June 2019 Supervision by

Dr. Kushtrim Istrefi & Peyman Amiri

Version 4B/18F Net word count: 9.678

Running head: THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

The History and Future of the Legal Autonomy of Fryslân: An Examination of the Swinging Pendulum of Centralisation in the Development of the Dutch State Tahrim T.T.K. Ramdjan University of Amsterdam

Author Note This research has been conducted in light of the bachelor’s thesis project of Politics, Psychology, Law and Economics (PPLE), student no. 11315199, Law major. I thank my supervisors Kushtrim Istrefi and Peyman Amiri for their close cooperation, sharp recommendations and facilitation of this thesis in a constructive, out-of-thebox manner. I also thank Veerle Beenkens and Roelof Ettema for their close reading, words of encouragement and keeping me caffeinated. I delegate special thanks to Sybren Posthumus, and in addition Lyda Veldstra-Lantinga, of the Frisian National Party who supported me substantially in my research and received me wholeheartedly. I also explicitly thank Anouk Gielen who selflessly accompanied me to Fryslân. Lastly, if there is anything this project has taught me on a personal note, it is resilience, which would have been rendered impossible without my personal support network. You know who you are, and you are much valued. The net word count (excluding title page, table of contents, footnotes, references and appendices) of this thesis amounts to 9.678. This thesis references by use of APA 6 for all scientific sources and Bluebook 20 for all (primary) legal and parliamentary sources.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Table of Contents ABSTRACT ............................................................................................................................................... 5 NEDERLANDSE SAMENVATTING ............................................................................................................ 6 FRYSKE GEARFETTING........................................................................................................................... 7 1.

INTRODUCTION............................................................................................................................... 8

1.1.

AN INTRODUCTION TO FRYSLÂN .................................................................................................. 8

1.2.

METHODOLOGY AND PROCEEDINGS ............................................................................................ 9

1.3.

THEORETICAL FRAMEWORK....................................................................................................... 11

A PROEM INTO THE EARLY AUTONOMY OF FRYSLÂN .............................................................. 14

FRYSLÂN IN THE UNITED NETHERLANDS AND ITS REMNANTS................................................. 15

3.1.

THE REPUBLICAN ERA: UNITED IN WAR AND PEACE ................................................................ 15

3.1.1.

EARLY CENTRALISATION OR WHOLLY AUTONOMOUS?........................................................... 15

3.1.2.

THE UNION OF UTRECHT: FIRST CONSTITUTION OF THE WORLD? ........................................... 16

3.1.3.

THE CONSEQUENCES FOR THE AUTONOMY OF FRYSLÂN’S ADMINISTRATION. ........................ 16

3.2.

THE BATAVIAN ERA: TWO STEPS FORWARD, ONE BACK .......................................................... 17

3.2.1.

THE FIRST BREAKTHROUGH OF THE UNITARY STATE: THE FIRST DEPARTMENT. .................... 17

3.2.2.

THE PENDULUM SWINGS BACK: AUTONOMOUS LEGISLATIVE POWERS.................................... 18

3.2.3.

UNITED KINGDOM OF THE NETHERLANDS: FROM RESERVED TO RESIDUAL POWERS. ............ 19

3.2.4.

THE DEATHBLOW: CENTRALISATION THROUGH DECENTRALISATION. .................................... 20

4. FRYSLÂN IN THE PRESENT NETHERLANDS .................................................................................. 22 4.1.

A GIANT IN CHAINS: THE LAW OF PROVINCES IN THE 1983 CONSTITUTION ............................. 22

4.1.1.

‘AUTONOMIE’ AND ‘MEDEBEWIND’: AN INSEPARABLE TWIN. ................................................... 22

4.1.2.

AN UNORGANISED HOUSEHOLD. .............................................................................................. 23

4.1.3.

THE DIFFERENCE BETWEEN FORMAL AND SUBSTANTIVE FREEDOM. ....................................... 24

4.1.4.

AUTONOMIE IN PRACTICE: JUDICIAL AND STATUTORY LIMITATIONS. ...................................... 25

4.1.5.

FROM CONSENT BY THE KING TO REPRESSIVE SUPERVISION. .................................................. 26

4.1.6.

MEDEBEWIND IN PRACTICE: SPATIAL PLANNING IN FRYSLÂN.................................................. 27

4.2.

PARLIAMENTARY PROCEEDINGS TO THE 1983 CONSTITUTIONAL REFORM ............................... 28

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

4.2.1.

BACK TO THE ESTATES? ........................................................................................................... 28

4.2.2.

THE BATTLE OF THE ELECTED MAYOR. .................................................................................... 29

4.3.

THE LEGAL PROTECTION OF FRISIAN LANGUAGE ...................................................................... 31

5.. THE FUTURE FOR FRYSLÂN .......................................................................................................... 33 5.1.

EVERLASTING REGIONAL TENDENCIES: THE FRISIAN NATIONAL PARTY.................................. 33

5.1.1.

FROM FRYSKE BEWEGING TO FRYSKE NASJONALE PARTIJ......................................................... 33

5.1.2.

INTO A FEDERALIST NETHERLANDS? ....................................................................................... 34

5.2.

THE CARIBBEAN MODEL: FRYSLÂN AS MORE THAN A PROVINCE, LESS THAN A COUNTRY .... 35

5.2.1.

IMPLIED FEDERALISM IN THE COLONIAL LEGACY OF THE DUTCH KINGDOM. ......................... 35

5.2.2.

INTO A STATUS APARTE FOR FRYSLÂN? ................................................................................... 37

CONCLUSION ................................................................................................................................. 38

REFERENCES ......................................................................................................................................... 41 APPENDIX A. STATUTES OF LAW ......................................................................................................... 49 A.1 1579 UNION OF UTRECHT ............................................................................................................ 49 A.2 1798 STATE REGULATION FOR THE BATAVIAN PEOPLE .............................................................. 52 A.3 1801 STATE REGULATION FOR THE BATAVIAN PEOPLE .............................................................. 54 A.4 1815 CONSTITUTION FOR THE KINGDOM OF THE NETHERLANDS ............................................... 55 A.5 1848 CONSTITUTION FOR THE KINGDOM OF THE NETHERLANDS ............................................... 57 A.6 1983 CONSTITUTION FOR THE KINGDOM OF THE NETHERLANDS (GW) ...................................... 58 A.7 1992 DUTCH PROVINCES ACT (PROVINICEWET) ......................................................................... 60 A.8 1985 EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT ........................................................ 62 A.9 2013 DUTCH FRISIAN LANGUAGE ACT (WET GEBRUIK FRIESE TAAL) ....................................... 63 A.10 1954 CHARTER FOR THE KINGDOM OF THE NETHERLANDS (STATUUT) ................................... 64 APPENDIX B. FIGURES ......................................................................................................................... 67

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Abstract Fryslân, one of the twelve Dutch provinces, has an extraordinary position in Dutch culture and history. This thesis examines to what extent the legal protection of Fryslân’s autonomy has fluctuated in a 440-year time span, from the establishment of the Republic of the Seven United Netherlands – through the Batavian Revolution and the foundation of the United Kingdom of the Netherlands – up until today’s Constitution. It does so through historicaldoctrinal research, performing an analysis on several historical constitutions of the Netherlands. Auxiliary methods to ensure an interdisciplinary character of this research are content analysis, performed on parliamentary proceedings prior to the 1983 constitutional reform, and historiographic analysis, placing the legal transformation of the Dutch state from a confederal to unitary state in a societal context. The historical development of Fryslân within the Dutch constitutional framework is subsequently linked to the federalist theory of statehood and the theory of cultural nationalism. Regionalist tendencies are still represented in Fryslân by the Frisian National Party, hence this thesis proposes a possible solution through the ‘Caribbean model’: a status aparte for Fryslân within the de facto federal structure of the Kingdom of the Netherlands. This thesis concludes that Fryslân has lost in its legal autonomy considerably, although admittedly this loss of autonomy is somewhat mitigated by a relative freedom of policy in fields of importance to Fryslân and legal protection of Frisian language. Keywords: Netherlands, Kingdom of the Netherlands, Fryslân, statehood, constitutional law, federalism, regionalism, minority language, cultural nationalism, autonomy

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Nederlandse samenvatting De geschiedenis en toekomst van de juridische autonomie van Friesland: Een onderzoek naar de slingerende pendule van centralisatie in de ontwikkeling van de Nederlandse staat

Friesland, een van de twaalf Nederlandse provincies, heeft een bijzondere positie in de Nederlandse cultuur en geschiedenis. Deze scriptie onderzoekt in hoeverre de juridische bescherming van de autonomie van Friesland fluctueerde in de afgelopen 440 jaar, van de Republiek der Zeven Verenigde Nederlanden – door de Bataafse Revolutie en de oprichting van het Verenigd Koninkrijk der Nederlanden heen – tot de Grondwet van vandaag. Dat wordt onderzocht middels een historisch-juridische analyse van verschillende oude Nederlandse grondwetten. Hulpmethoden om het interdisciplinaire karakter van dit onderzoek te garanderen, zijn een inhoudsanalyse van de parlementaire behandeling van de grondwetsherziening van 1983 en een historiografische analyse die de transformatie van de Nederlandse confederatie tot eenheidsstaat in een maatschappelijke context plaatst. De historische ontwikkeling van Friesland binnen het Nederlands staatsrechtelijk bestel wordt ook verbonden aan de theorieën van federalisme en cultureel nationalisme. Regionalistische tendensen zijn nog steeds aanwezig in de gedaante van de Friese Nationale Partij. Deze scriptie stelt een mogelijke oplossing, om aan die tendensen tegemoet te komen, voor middels het ‘Caribische model’: een status aparte voor Friesland binnen de feitelijk federale structuur van het Koninkrijk der Nederlanden. Deze scriptie concludeert dat Friesland juridisch aanzienlijk aan autonomie heeft verloren, ook al wordt dit ietwat verzacht door beleidsvrijheid op vlakken die van belang zijn voor Friesland en een juridische bescherming van de Friese taal.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Fryske gearfetting De skiednis en takomst fan de juridyske autonomy fan Fryslân: In ûndersyk nei de slingerjende pendule fan sintralisaasje yn de ûntjouwing fan de Nederlânske steat

Fryslân, ien fan de tolve Nederlânske provinsjes, hat in opmerklike posysje yn de Nederlânske kultuer en skiednis. Dizze skripsje ûndersiket de mjitte wêryn't de juridyske autonomy fan Fryslân yn de ôfrûne 440 jier ferhege of fermindere is: fan de ynrjochting fan de Republyk fan de Sân Feriene Nederlannen, troch de Bataafske Revolúsje en it lettere Feriene Keninkryk, oant de Grûnwet fan hjoed-de-dei. Dizze skripsje docht dat troch middel fan histoarysk-juridysk ûndersyk, wêrby’t in analyze útfierd wurdt op Grûnwetten út it ferline fan Nederlân. Helpmiddels om it ynterdissiplinêre karakter fan dit ûndersyk te garandearjen binne in ynhâldsanalyze fan de parlemintêre argiven foarôfgeand oan de grûnwetswersjenning fan 1983, en in histoariografyske analyse fan de sintralisaasje fan de Nederlânske steat op in sosjologysk-juridyske wize. De skiednis fan Fryslân yn it Nederlânsk steatsrjochtlik bestel wurdt dêrnei ferbûn oan de teory fan federalisme en de teory fan kultureel nasjonalisme. Regionalistyske tendinzen syn oanwêzich troch de Fryske Nasjonale Partij. Dizze skripsje ûndersiket dêrom de helberens fan it ‘Karibyske model’: mear autonomy foar Fryslân yn it, yn de praktyk federale steatsrjochtlike ramtwurk fan it Keninkryk fan de Nederlannen. Dizze skripsje konkludearret dat Fryslân, formeel sjoen, in soad oan juridyske autonomy ferlern hat, mar dat dat ferlies in bytsje fersêfte wurdt troch in grut stik beliedsfrijheid op guon wichtiche mêden en juridyske beskerming fan de Fryske taal.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

The History and Future of the Legal Autonomy of Fryslân: An Examination of the Swinging Pendulum of Centralisation in the Development of the Dutch State 1. 1.1.

Introduction

An Introduction to Fryslân One of the twelve provinces of the Netherlands is Fryslân (Dutch: Friesland; see

Figure B.1), housing about 650,000 people. The majority of the residents of Fryslân – historically and today – is part of the Frisian people (CBS, 2019; Van der Goot & Hemminga, 2008, p. 17). The Frisians are the only minority that the Netherlands has recognised in its ratification of the Framework Convention for the Protection of National Minorities.1 Fryslân occupies a special position in the culture and society of the Netherlands. To speak with the words of former Secretary of State Rita Verdonk (in Knotter, 2008, p. 354): “Its residents swear by their province”. It is one of the regions that shows the largest tendency of ‘cultural nationalism’ (Duijvendak, 2008, pp. 345-346), that has been deployed in response to the historical development of the Dutch state, which turned from a confederation of estates into a symmetric unitary state (Duijvendak, 2008, p. 346; Elzinga, De Lange, & Hoogers, 2014, p. 123). Fryslân, furthermore, is in a unique situation compared to other provinces by virtue of its own language, Frysk, recognised as a language in which administrative and legal proceedings may occur (Hoekstra, 2008, p. 7). In addition, regionalist tendencies – not uncommon in Europe nowadays – are still present in Fryslân, in the form of the Fryske Nationale Partij, Frisian National Party (FNP), which now serves two consecutive terms in the States-Executive of the province. It is therefore the question whether the Dutch state accommodates the unique character of the province of Fryslân sufficiently – but to assess that adequately, one must perform an inquiry into history.

Goedkeuring Kaderverdrag inzake de bescherming van nationale minderheden; Straatsburg, 1 februari 1995; Brief minister inzake ratificatie Kaderverdrag inzake de bescherming van nationale minderheden, in verband met toepassing op Friezen, Kamerstukken II, 2003/2004, 26389 no. 8 (2003).

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 1.2.

Methodology and Proceedings This thesis seeks to answer the following research question: To what extent has the

legal autonomy of Fryslân oscillated today, compared to the history of the Dutch state from the establishment of the Republic of the Seven United Netherlands onwards? For that purpose, this thesis answers three sub-questions: (i)

What was the historical position of Fryslân in the Republic of the Seven United Netherlands and, subsequently, the (United) Kingdom of the Netherlands? (answered in chapter 3)

(ii)

How does the current law of provinces determine the position of Fryslân and how did it develop? (answered in chapter 4)

(iii)

To what extent are claims to Frisian autonomy still present in the Dutch state today and how can these be accommodated? (answered in chapter 5)

The accumulation of these sub-questions, thus, leads to a reconciliation of a descriptive objective of this research – describing the current law – with an explanatory objective, namely clarification of how the current status of Fryslân has emerged, and a recommendatory objective, to suggest how present-day claims of Frisian autonomy can legally be accommodated (Kestemont, 2018, pp. 9; 16-17). To answer these questions, this thesis engages primarily in a historical-doctrinal analysis of the current and past constitutions of the Netherlands. A doctrinal analysis entails a close examination of statutes and jurisprudence to uncover and critically assess underlying legal concepts and their interpretation (Sumner, 2019). Historical-doctrinal analysis, then, performs such examination not solely on the current law, but rather on how the law used to be (Curry-Sumner, Kristen, Van der Linden-Smith, & Tigchelaar, 2010, p. 6). It, then, serves to uncover arguments that may be useful to contemporary problems (p. 6). One such problem is, for instance, the observation that for the past 35 years, any efforts made to provide the

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

provinces in the Netherlands with more competences have failed, in contrast to developments in neighbouring countries (Duijvendak, 2008, p. 352). The historical-legal analysis facilitates internal legal comparison throughout different moments of history (Kestemont, 2018, pp. 12– 13). Additionally, this thesis also provides for external comparison, since there are very little contributions available regarding Dutch constitutional law in English – after all, one of the major pitfalls of comparative law still comprises lack of (adequate) translations of domestic statutes (Örücü, 2006, p. 40). The legal analysis in this thesis is conducted in an interdisciplinary manner. Regarding the first and third sub-question, the analysis is supported by a historiographic account of writings about former manifestations of the Dutch state. Historiography entails a critical and structural enquiry into the connection and comparison of multiple historic writings on the same matter (Bentley, 1999, p. vii). The application of the historiographic method to legal research entails a transition from mere examination of internal law, to the study of legal materials outward to their social context (Gordon, 1976, p. 466). Concretely for this thesis, it entails placing the legal analyses into historical context, adding a dimension of socio-legal analysis, since it compares the law as laid down, on the one hand, to how the law functioned in practice, on the other (Curry-Sumner et al., 2010, p. 6). The analysis regarding the second sub-question is accompanied by a summative content analysis into parliamentary archives prior to the 1983 constitutional reform, which entails an interpretation of the underlying context following comparisons and connections drawn in the available texts (Hsieh & Shannon, 2005, pp. 1283–1285). This ties in with the explanatory objective of this study. Since historical-legal analysis must be performed diachronically (Kestemont, 2018, p. 13), this thesis will proceed in the following manner. Chapter 2 provides a very brief overview of the history of Fryslân up until the Middle Ages. Chapter 3 – answering sub-

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

question 1 – analyses the legal position of Fryslân from 1579 to 1795, including the establishment of the Republic of the Seven United Netherlands and its transition into the United Kingdom of the Netherlands. Chapter 4 – answering sub-question 2 – analyses the current position of Fryslân and the Frisian language in light of the constitutional framework of the Netherlands since the 1983 Constitution and how this framework has emerged. Chapter 5 – answering sub-question 3 – analyses the current claims of autonomy in Fryslân as represented by the Frisian National Party and proposes how these could be accommodated within the constitutional structure of the Kingdom of the Netherlands. This thesis concludes in Chapter 6 with a presentation of the answers to the main research question. Appendix A contains the statutes of law that are referred to; Appendix B contains relevant figures. 1.3.

Theoretical Framework This thesis examines the constitutional framework of the Netherlands, in light of two

theories: the federalist theory of statehood and the theory of cultural nationalism. The Netherlands is a decentralised unitary state with three administrative levels: the central state, the provinces and the municipalities (Heringa, Van der Velde, Verhey, & Van der Woude, 2018, p. 149). Provinces enjoy a status in the Netherlands that is comparable to the status of regions elsewhere in European states (Torres Pereira & Liouville, 2014, pp. 29– 30). A province has a governmental body – Gedeputeerde Staten, States-Executive – and a directly elected legislative body, Provinciale Staten, States-Provincial (Heringa et al., 2018, pp. 329–330). The relation between the central state and the decentralised governments (comprising provincial and municipal governments) is one of hierarchical nature, even though the central state tends to frame it as one of equal footing in its official communications (p. 344). Fryslân is nowadays a province but entails – as this thesis establishes – a region that historically has been larger with a considerably different status. Note that the European country of the Netherlands is situated in the overarching Kingdom of the Netherlands, that

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

includes three autonomous countries in the Caribbean – Aruba, Curacao and St. Maarten – that used to be subject to Dutch rule (Heringa et al., 2018, p. 364). The federalist theory of statehood delineates the relationship between central and local governments (Heringa & Kiiver, 2012, p. 49). The Dutch state has converted from a confederal to a unitary one – analogously, one could assert that the development of the Dutch polity has shifted from organic to hierarchic (Elazar, 1997, pp. 238–239). A confederal state is a state where the constituent sub-regions have constitutionally enshrined privileges and where consultation must occur between the levels of government, whereas in a unitary state power on part of sub-regions is merely derived from the central authority (Heringa & Kiiver, 2012, p. 49). The importance of the conversion of Dutch state must not be underestimated: in the drafting process of the American Constitution, many references had been made to the structure of the Republic of the Seven United Netherlands (Riker, 1957, pp. 495; 517). The autonomy of Fryslân throughout history is measured in this study by the legal enshrinement of four essential characteristics of a federal system, namely (i) the legal status of the Netherlands as either a unitary state or something short of that; (ii) the provincial ability to determine its interior administration; (iii) whether legislative powers of the province are autonomous and reserved (derived not from the central authority but from the Constitution directly); and (iv) whether there is a clear enumeration and division of competences (Heringa & Kiiver, 2012, pp. 49–50). A fifth focal characteristic in the overarching structure of the Kingdom, is the provision of a neutral arbiter that solves conflicts between superior and local governments (pp. 49–50). Additionally analogous to the conversion of the Dutch state is the aforementioned emergence of ‘cultural nationalism’, which is increasingly considered to be a product of context, rather than a phenomenon in a deterministic sense (Duijvendak, 2008, p. 343). Jensma (1998, p. 32) hypothesised that the emergence of this cultural nationalism for Fryslân

THE HISTORY AND FUTURE OF FRYSLĂ&#x201A;Nâ&#x20AC;&#x2122;S LEGAL AUTONOMY

stands in direct relation to the centralisation of the Dutch state. To corroborate whether that is the case, and in light of the socio-legal element of this research, this thesis touches upon Frisian cultural nationalism and its translation to Frisian politics in the form of the Frisian National Party. Quintessential to this cultural nationalism is the existence of a minority language: sufficient protection of a minority language weakens the intensity of conflict between a minority and other groups (Medeiros, 2017, p. 639). Indeed, the existence of minority languages in itself can lead to the creation of regional sub-units that in turn demand institutional and constitutional protection (Mitra, 2001, p. 58). This paper therefore also assesses the position of the Frisian language in the Netherlands.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 2.

A Proem into the Early Autonomy of Fryslân

“In the same year, the Frisians, a tribe on the further bank of the Rhine, violated the peace, more from our cupidity than from their own impatience of subjection. […] Thus, the Frisian name won celebrity in Germany.” (Tacitus, Annales IV 72; 74 in Jackson, 1937) The first appearance of the Frisian people occurs in Tacitus’s mention of the ‘Frisii’, the Frisians, about 2000 years ago (Jensma, 2001, p. 211). The Frisians inhabited a large part of the Netherlands as well as Belgium and Germany, stretching out from Bruges up to the northwest of Germany (Milis, 2004b, p. 21; see Figure B.2). This fact is often referred to in ordinary parlance as ‘Magna Frisia’, a Frisian empire, although archaeologists of the University of Groningen have stipulated that this empire probably consisted of several little regions without centralised reign but with a common identity (Boers, 2014). Even though the Empire of the Franks eventually conquered Fryslân, the Frisians became notorious because of their success in trade and their internal system of self-sufficiency (Milis, 2004b, pp. 26-27; 30). Tacitus had already distinguished the ‘Greater Frisii’ living to the east of the lake Flevo, and the ‘Lesser Frisii’ living to the west (Eekhoff, 1851; Milis, 2004b, p. 21). The Greater Frisii remained autonomous. During the Middle Ages, Fryslân escaped from the imposition of a feudal arrangement of society, which is why some historians speak of the ‘free Fryslân’ (Eekhoff, 1851; Milis, 2004a, p. 44). At the same time, the estate of Groningen escaped from the influence of Frisian language and culture, which is why the connection between the Frisians in the Netherlands and Frisian sub-peoples in Germany got lost (QuakStoilova, 1994). Fryslân2, thus, became increasingly autonomous during the Middle Ages.

The author of this thesis refers by ‘Frisians’ and ‘Fryslân’ to the (predecessor of the) people and area of present-day Dutch Fryslân.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 3. 3.1.

Fryslân in the United Netherlands and its Remnants

The Republican Era: United in War and Peace 3.1.1. Early centralisation or wholly autonomous? The sovereign of the Habsburg Netherlands, or the Netherlands of the Seventeen

Estates3, could only effectively subject the Frisians to his reign in 1524 (Blockmans, 2014, pp. 118–119). Within this early form of the Dutch state, some formal institutional mechanisms of centralisation had been installed, such as the States-General – predecessor to today’s Dutch parliament – and the Secret Council – predecessor to the later Council of State, functioning as an ultimate Supreme Court (Blockmans, 2014, pp. 120; 125). Despite these early signs of centralisation, Fryslân maintained considerable autonomy in its internal administration. Fryslân was divided in thirty ‘grietenijen’ (singular: ‘grietenij’), a predecessor to the present-day concept of municipality, governed by a ‘grietman’ (a public prosecutor) who was usually elected through nomination by his predecessor and the assembly of the commons, until the sovereign of the Habsburg Netherlands abolished this free election in his pursuit of centralisation (Fruin & Colenbrander, 1901, p. 93). Each grietenij sent two delegates to the Diet, Landdag, in which four regions of Fryslân were represented: Oostergo, Westergo, Zevenwolden and a fourth region composed of the eleven Frisian cities (1985, p. 59). Remarkable about Fryslân is that, even though it knew an upper class of nobles, these nobles did not enjoy any privileges: power remained mostly with the commoners. It is for that reason that Fruin & Colenbrander (1901, p. 92) state in their historical account of the Frisian administration that “[Fryslân] deviates importantly from the other provinces”.

Noteworthy is that the Habsburg Netherlands at this moment did not comprise seventeen estates. The notion of the seventeen estates referred, instead, to a Biblical notion of a large empire. It is estimated that the Habsburg Netherlands comprised nineteen different regions in the sixteenth century prior to the Union of Utrecht (Blockmans, 2014, p. 124).

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

3.1.2. The Union of Utrecht: first Constitution of the world? The Union of Utrecht, Unie van Utrecht, of 1579 is often regarded as the first Constitution in world’s history (Elzinga et al., 2014, p. 122). It rather refers to itself as a treaty, serving to corroborate the unity of the Dutch provinces against their common enemy of Spain.4 Nevertheless, Kortmann et al. (2012, p. 13) argue that the ratification of the Union of Utrecht is the most logical moment to determine as the commencement of the history of Dutch constitutional law, since the Union legally showed confederal characteristics in its formation of the state. Following the Union of Utrecht, Fryslân became one of the seven ‘provinces’, formerly known as ‘estates’, in the Republic of the Seven United Netherlands (Fruin & Colenbrander, 1901, p. 122; see Figure B.3). Fryslân was to maintain its particular privileges and to design its inner administration (Fruin & Colenbrander, 1901, p. 367).5 The principles of autonomy and sovereignty were protected so that no province was to interfere with the affairs of another.6 Some matters were to be decided only according to a unanimous vote.7 This regards some matters that are labelled today as ‘core state powers’ (Genschel & Jachtenfuchs, 2013), including the commencement and termination of wars and the levying of some kinds of taxation.8 This testifies of a clear division of competencies between the sphere of the Republic and the sphere of Fryslân, affirming the confederal nature of the Republic (Kortmann, Bovend’Eert, Broeksteeg, Vermeulen, & Kortmann, 2012, p. 13). 3.1.3. The consequences for the autonomy of Fryslân’s administration. As aforementioned, Fryslân was still free in the determination of its internal structure, since the Republic was asymmetrically designed internally (Kortmann et al., 2012, p. 15).

UNIE VAN UTRECHT preamble (1579). Please be referred to section A.1 of this thesis. Id. art. 1. 6 Id. 7 Id. art. 9. 8 Id. 5

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Following the establishment of the Republic, the Frisian Diet – now named the ‘States’ – had vested itself with legislative and administrative power that used to be with the Lord of the Habsburg Netherlands (Fockema Andreae, 1985, p. 59). This legislative power was not restricted, save for the competencies that fell on part of the Republic. The executive power was exercised by the newly formed States-Executive, of which the grietman remained in chief (p. 60). Characteristic for the States of Fryslân is that, after the settlement of the Republic, the largest part of public participation was still exercised by residents in the agrarian sector (Kortmann et al., 2012, p. 15). Judicial affairs remained within the sphere of the province itself. The Court of Fryslân asserted its jurisdictional dominance the most and therefore retained extensive judicial powers (Fruin & Colenbrander, 1901, p. 260; Kortmann et al., 2012, p. 15). 3.2.

The Batavian Era: Two Steps Forward, One Back 3.2.1. The first breakthrough of the unitary state: the First Department. In disregard of the autonomous character of Fryslân and the predominance of

commoners therein, many of the affairs within the competence of the Republic were increasingly decided in an opaque manner, involving only noblemen. This led to the Batavian Revolution9 and the subsequent dissolution of the Republic of the United Netherlands in 1795 (Roegiers & Van Sas, 2004, p. 277). In 1798, the first Staatsregeling, State Regulation, came into force, which functioned as the first de jure Constitution of the Netherlands. It was the first Constitution to affirm a unitary nature of the state, which remained affirmed in any Constitution since (Roegiers & Van Sas, 2004, p. 279).10 Core state powers, such as taxation, were now matters for the

The name ‘Batavian’ is derived from the patriots, who pursued Republican ideals, opposed to those who endorsed the authority of the central state. ‘Batavian’ refers to the ‘Bataves’, allegedly the name of the first Dutchmen in the Roman era. The French asserted themselves as saviours of the Bataves, subsequent to the French Revolution (Roegiers & Van Sas, 2004, p. 277). 10 STAATSREGELING VOOR HET BATAAFSCHE VOLK art. 1 (1798). Please be referred to section A.2 of this thesis.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

unitary state in isolation to decide – contrary to the requirement of a unanimous vote by all constituent provinces in the Republican era.11 The unitary country was divided in eight departments, including Fryslân as the ‘First Department’.12 Fryslân became severely impaired in both the ability to design its interior administrative apparatus, as well as in its legislative competences. The traditional internal division of Fryslân and the office of the grietman were abolished, as each Department was legally obliged to adhere to a symmetrical administrative division into ‘rings’ and subsequently municipalities13. The Frisian States were dissolved and replaced by a Departmental Administration, that derived its authority only from the central state (Roegiers & Van Sas, 2004, p. 280).14 Heringa et al. (2018, p. 19) mention that this laid the foundations for today’s derivative authority of local bodies in the Dutch Constitution. Departmental bodies had the duty to announce and execute rules issued by the central government immediately, like the present-day mechanism of ‘medebewind’.15 In addition, the central government had the authority to annul acts of the departmental bodies insofar it deemed that they violated the law – reminiscent of today’s ‘repressive supervision’.16 Section 4.1 elaborates on these present-day mechanisms. In short, the introduction of the 1798 State Regulation entailed a large reversal of provincialist and federalist enshrinement of Fryslân’s legal status, since Fryslân was no longer able to determine its internal administration independently nor to legislate autonomously. 3.2.2. The pendulum swings back: autonomous legislative powers. With a new State Regulation in 1801, Fryslân retained some autonomy and was reattributed its old name (Heringa et al., 2018, p. 306; Roegiers & Van Sas, 2004, p. 280). It

Id. artt. 200-201. Id. art. 3. 13 Id. art. 5. 14 Id. artt. 147 jo. 83. 15 Id. art. 148. 16 Id. art. 107. 12

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also included the re-appearance of some federalist characteristics in Fryslân’s constitutional status. Fryslân retained autonomous legislative powers, regarding those affairs that belonged to its “interior policy, economy and finances”.17 Municipalities within Fryslân had the free power to determine statutes regarding their specific interests.18 There was a clear enumeration of the fields of policy in which Fryslân retained autonomy, and in addition, it entailed reserved powers that departments possessed independently by virtue of the State Regulation.19 Exactly because of this clear division of competences, Fryslân’s powers since 1801 were very reminiscent of the confederal system during the Republican era and seem a far-reaching predecessor to the present-day mechanism of ‘autonomie’ (see section 4.1). It seems that this would be the most autonomy that Fryslân had gotten in the modern Dutch state following the abolition of the Republic, even though it was still unable to determine its internal administration. 3.2.3. United Kingdom of the Netherlands: from reserved to residual powers. In 1814, after a short-lived annexation of the Netherlands into the Napoleonic French Empire, William I appropriated the sovereignty of the Dutch people (Roegiers & Van Sas, 2004, pp. 297–298). This led to the birth of the United Kingdom of the Netherlands20 (see Figure B.4) and the introduction of the 1815 Constitution for the Kingdom of the Netherlands, after which the present Constitution is still modelled.

STAATSREGELING VOOR HET BATAAFSCHE VOLK art. 71 (1801). Please be referred to section A.3 of this thesis. Id. art. 74. 19 Id. artt. 71, 74. 20 The Kingdom of the Netherlands initially comprised, from 1815 to 1830, not only what we now know as ‘the Netherlands’ (Northern Netherlands) but also what we now see as ‘Belgium’ (Southern Netherlands), hence the name ‘United Kingdom of the Netherlands’. A constitutional change in 1830 saw the permanent leave of Belgium: some historians describe this as the fall of the Kingdom of the Netherlands, but the author of this thesis refuses to use that terminology, since a direct political and constitutional line can be drawn from the status of the Northern Netherlands in the 1815 Kingdom of the Netherlands to the present Kingdom of the Netherlands (Roegiers & Van Sas, 2004, p. 305). 18

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Fryslân became merely a province in the Dutch state, with limited legislative competences on part of its States-Provincial.21 The States-Provincial elected the legislative body of the central state and could again determine the interior administrative apparatus of Fryslân, arguably providing them with as much authority as in the Republican era.22 However, permanent impairments to the constitutional protection of Fryslân’s autonomy had already been introduced in the 1815 Constitution. Fryslân retained some legislative autonomy, but these were residual rather than reserved powers (Van der Woude, 2015a).23 Furthermore, the unitary nature of the Dutch state was re-affirmed in the continued existence of repressive supervision by the Crown and the complete abolishment of local taxation and adjudication, contrary to practice in the Republic.24 Nevertheless, the 1815 Constitution described clearly and exhaustively on which fields the central government may invoke co-operation of Frisian authorities.25 In addition, the autonomous legislative competence of Fryslân – albeit residual – was formulated widely.26 Hence, this Constitution held the middle between the republican tradition of the Dutch state, and centralist principles that resulted from the Batavian Revolution (Heringa et al., 2018, p. 306). 3.2.4. The deathblow: centralisation through decentralisation. The introduction of the 1848 Constitution dispensed definitively with the differentiated administrative apparatus of Fryslân and engaged in a harmonisation of local bodies, speaking of ‘provinces’ inferior to the central state, and subsequently ‘municipalities’ (including former towns and districts) inferior to the provinces (Bovend’Eert, Broeksteeg,

GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN artt. 1, 129 (1815). Please be referred to section A.4 of this thesis. 22 Id. artt. 144, 154. 23 Id. art. 146. 24 Id. artt. 149, 158, 163, 166. 25 Id. art. 145. 26 Id. art. 146.

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Bunschoten, Fleuren, & Hoogers, 2015, p. 223; Heringa et al., 2018, p. 307). 27 It also allowed for the institution of the Provinces Act and Municipalities Act, which introduced the terminology of ‘household’ that proved problematic in modern times (see section 4.1.2).28 The 1848 Constitution was the deathblow to the legal protection of an autonomous notion of Fryslân, as it constitutionalised a framework of decentralisation. This rather seemed a form of ‘centralisation through decentralisation’, as it introduced a blueprint of the relation between the central and local government that merely reaffirmed the unitary state. This constitutional amendment also laid down the framework for the discussion of deconstitutionalisation that emerged about a century later, as section 4.2 shows.

GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN art. 138 (1848). Please be referred to section A.5 of this thesis. 28 Id. art. 131.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 4. 4.1.

Fryslân in the Present Netherlands

A Giant in Chains: The Law of Provinces in the 1983 Constitution 4.1.1. ‘Autonomie’ and ‘medebewind’: an inseparable twin. The present Dutch state is symmetrically decentralised (Heringa & Kiiver, 2012, p.

68). Particular about the present Constitution, enacted in 1983, is that it nowhere guarantees the decentralisation of the state (Heringa et al., 2018, p. 307). Warmelink et al. (2010, p. 35) warn that the existence of the local bodies is not protected for, as the Constitution provides that provinces “may be dissolved and […] established” (emphasis added), not that they will be.29 Fryslân has remained a province in the Dutch state and is thus subject to the law of provinces (Heringa & Kiiver, 2012, p. 68). It is thus necessary to first examine the constitutional framework in which Fryslân manoeuvres by virtue of the present Constitution and the Provinces Act (Provinciewet). Competences may be conferred from the central to the Frisian provincial (or municipal) 30 legislator by either of two mechanisms: 1) ‘Autonomie’ (autonomy), which includes those affairs that fall under the ‘huishouden’, ‘household’, of the province.31 The province has exclusive competence regarding these affairs, but the definition of ‘household’ is ambiguous and prone to problems in practice, as sections 4.1.2 and 4.1.3 show. 2) ‘Medebewind’ (co-rule), through which the central state commands lower authorities to execute national laws through local regulations.32 The national legislator determines

GW. [Constitution] art. 123. Please be referred to section A.6 of this thesis. It should be noted that much of what is analysed here regarding the body of provinces, could be analysed simultaneously with the emergence of the body of ‘municipalities’ in Dutch constitutional law. It goes beyond the purpose and formal limits of this thesis to include a thorough examination of that process. 31 GW. [Constitution] art. 124, sub. 1; Provinciewet, Stb. 1992, 54, art. 105, sub. 1. For the latter, please be referred to section A.7 of this thesis. 32 GW. [Constitution] art. 124, sub. 2; Provinciewet, Stb. 1992, 54, art. 105, sub. 2. 30

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a framework and guidelines in a national law. Heringa et al. (2018, pp. 332-333) criticise this mechanism as quintessentially being a mechanism of centralisation while appearing as a means of decentralisation, alike the 1848 Constitution (see section 3.2.4), because medebewind creates a legal obligation for the lower authority to comply with national laws, even if the latter may have large freedom policy-wise on how to do so (p. 333). Section 4.1.5 provides a case study of such a situation. The mechanism of medebewind has been in place since the 1798 State Regulation following the introduction of centralisation of the Dutch state; the mechanism of autonomie has been introduced with the 1801 State Regulation that reverted this process by a small share (see section 3.2.2) (Heringa et al., 2018, p. 306). One can, thus, still see the remnants of the ever-swinging pendulum of centralisation in today’s Constitution. One should realise that the formulation of the mechanisms of autonomie and medebewind in the Constitution would formally imply a principle of subsidiarity, so that the provinces are free to determine policy on the fields in which they do so the best (Broeksteeg, 2014, p. 104). But it flows, from the aforementioned considerations on these mechanisms and their usage in practice, that the number of fields that fall under provincial competence by ‘autonomie’ has been limited in contrast to history, and that the regime of ‘medebewind’ by definition does not allow for delegation of powers to the provincial level (p. 104). For that reason, Broeksteeg (2014) goes on to characterise the province as a “giant in chains”. 4.1.2. An unorganised household. Historically, the drafters of the 1848 Constitution deemed it clear whether a competence fell under the scope of ‘household’ of either the central, the provincial or the municipal government (Van der Woude, 2015a). For the province, this entailed “the decision

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

regarding all that belongs to the regular interior policy and economy” (emphasis added).33 In effect, this comprised mostly the infrastructure of roads and water works – admittedly, a more limited array of competences than today (Verkruisen, 1992, p. 1084). However, the distinction has become more ambiguous and problematic over time as the central state issued national regulations on competences that formerly were part of the provincial sphere, especially since the emergence of the welfare state, when social policy became a matter of national importance (Heringa et al., 2018, pp. 330–331; Van der Woude, 2015a). It had the authority to do so since from 1815 onwards the powers of provinces became residual rather than reserved.34 Thus, this practice could have been prevented by a clear delimitation of competences like in the confederal state during the Republican era. 4.1.3. The difference between formal and substantive freedom. Note that the assessment of a situation of ‘autonomie’ depends on a substantive criterion: whether the matter at stake belongs to the province’s household. In contrast, the assessment of a situation of ‘medebewind’ depends on a rather formal criterion: whether the national legislator delegated some freedom to the province (Van der Woude, 2015a). Essentially problematic, then, is the consideration that the enumeration of provincial competences in the Provinces Act would, based on the aforementioned criterion, fall under a form of ‘medebewind’, while intuitively and substantively one could perceive it as a competence of provincial household. In addition, there are other national laws that are so close to the Provinces Act in their enumeration of quite open competences, that they intuitively nor substantively concern a situation of ‘medebewind’ (Van der Woude, 2015a). In contrast to the autonomie, the mechanism of medebewind has gained considerably in usage, with some scholars estimating that about 85% of the tasks of provinces and

GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN DER NEDERLANDEN art. 146 (1815). 34 GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN

art. 131 (1848); GRONDWET VOOR HET KONINKRIJK art. 146 (1815).

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municipalities is performed under medebewind (Van der Woude, 2015a). It should be noted that the pendulum of centralisation has swung somewhat back since the 2000s. The central government introduced the adage “decentraal wat kan, centraal wat moet”, ‘decentralised if possible, central if necessary’, and it laid down a code that stipulated that the central government should substantiate any proposal that might infringe the sphere of influence of local governments, although this code is legally non-binding (Schaap, 2012, p. 9). One should remain cautious of the distinction between procedure and substance in the mechanism of medebewind. It could be that a competence through medebewind attributes the province (or municipality) with considerable political freedom, but it still does not confer any legal freedom to the province: quite the contrary, it creates a legal obligation (Elzinga, 2014). That is why Van der Woude (2015a) stipulates that “had the legislator wanted to choose to enlarge [provincial] autonomy, it should rather have chosen for the abolition of national legislation and leaving [the matter] to [provincial] governments”. 4.1.4. Autonomie in practice: judicial and statutory limitations. The autonomous competence of the province of Fryslân lies with the States-Provincial, which can issue ordonnances that it deems necessary in the interest of the province, in the sphere of its own ‘household’.35 It is importance to realise that in practice, boundaries to the legislative competence of the province – save for the boundaries of the ambiguous concept ‘household’ – have been realised through safeguards favouring the central state as laid down in the Provinces Act and subsequent jurisprudence. First, there is a lower boundary to the provincial legislative function: it cannot issue ordonnances on those topics that do not touch upon the provincial interest, especially when they regard the private sphere.36

35 36

Provinciewet, Stb. 1992, 54, artt. 145; 105, sub. 1; GW. [Constitution] art. 124, sub. 1. HR 12 June 1962, NJ 1962, 484 (Anticonceptiva Bergen op Zoom).

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Second, the upper boundary to the provincial legislative function is formed by the doctrine of ‘motive’. The States-Provincial may issue posterior provincial ordonnances on topics that are already governed by the central state, only insofar they complement the national law.37 That is only the case when the national law and the provincial ordonnance govern the same matter with the same motive.38 This double test was meant to provide some restrictions to the dominance of the central legislator, but as affirmed in later jurisprudence, the provincial ordonnance may never fundamentally contradict a national law, even when it does not concern the same motive.39 In addition, anteriorly established provincial ordonnances are automatically annulled when a new national law foresees in the regulation of that matter (Van der Woude, 2015b).40 4.1.5. From consent by the king to repressive supervision. Admittedly, the provincial legislative competence no longer includes the historic obligation that consent must be given by the King.41 While this preventive supervision may have vanished, a mechanism of repressive supervision is still in place since the 1815 Constitution.42 The mechanism is inherently intertwined with the mechanism of autonomie since it limits autonomie in two ways: it limits autonomie in an exclusively posterior manner, and it is a constitutionally guaranteed discretionary power (Heringa et al., 2018, p. 346). The central state can issue a decree to suspend or annul a provincial ordonnance. Annulment may only take place when a provincial ordonnance contradicts (a) the law or (b) the general interest, which is to the discretion of the body that issues the annulment (Heringa et al., 2018, pp. 346–347).

Provinciewet, Stb. 1992, 54, art. 118. HR 4 March 1952, NJ 1952, 365 (Emmense baliekluivers). 39 HR 23 December 1980. NJ 1981, 171 (APV Schiermonnikoog). 40 Provinciewet, Stb. 1992, 54, art. 119. 41 GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN art. 146 (1815). 42 GW. [Constitution] art. 132, sub. 4; Provinciewet, Stb. 1992, 54, art. 261; GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN art. 149 (1815). 38

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The latter criterion is sometimes problematised in light of the European Charter of Local Self-government to which the Netherlands is party. Schaap (2012, p. 25) asserts that the Dutch state allegedly violates the convention, as it only allows for repressive supervision regarding compliance with the law, while the Dutch state would go further by allowing annulment based on ‘general interest’.43 However, the Netherlands made a lawful reservation on this matter the Charter and thus cannot be bound to it legally (Torres Pereira & Liouville, 2014, p. 28).44 In addition, the central state tends to substantiate an annulment through satisfaction of both requirements cumulatively to circumvent this apparent problem, although they work in principle alternatively (Heringa et al., 2018, p. 347). Even if the Netherlands had not made a reservation to the Charter, it should be noted that the Charter has no direct effect in the Netherlands.45 The wording of the Charter was found too broad and too general, so that it cannot constitute positive and autonomous law within the Netherlands, which is a necessary requirement for direct effect.46 Hence, local governments cannot seek protection against repressive supervision in this Charter. 4.1.6. Medebewind in practice: spatial planning in Fryslân. As has been established, despite the formal objections to the mechanism of medebewind, it can carry some freedom that mitigates the dominance of the central state. One successful example is the decentralisation of spatial planning, especially in Fryslân. The States-Provincial of Fryslân formulated new rules regarding agriculture, preservation of landscape, history of culture and the protection of birds (Provinciale Staten van Fryslân, 2014, p. 1). It enjoyed considerable freedom in this form of medebewind, and eventually chose for

European Charter for Local Self-Government; Strasbourg, 15 October 1985 Trb. 1987, 63, art. 8(2). Please be referred to section A.8 of this thesis. 44 Id. art. 12. 45 Rb Den Haag 18 April 2007, Gst. 2007, 115 (VNG/Staat). 46 GW. [Constitution] artt. 93; 120.

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further decentralisation to the municipal level, where possible, so that policy can be adjusted to local needs as much as possible (p. 3). Duijvendak (2008, p. 352) stipulates, in extension, that the mechanism of medebewind is especially successful in the rather agrarian-based northern provinces (including Fryslân), since the mechanism is invoked with a large share of effective administrative power in many fields regarding spatial planning and environmental protection. One should therefore consider the mechanism of medebewind – despite the aforementioned formal objections to it – a substantive and political mitigation to the legal preponderance of the central state in Fryslân. 4.2.

Parliamentary Proceedings to the 1983 Constitutional Reform 4.2.1. Back to the estates? In the examination of the current constitutional framework of the Dutch state, one

should realise that the parliamentary proceedings prior to the 1983 constitutional reform have been tumultuous. The reform had been initiated since the complex of constitutional rules had become somewhat ambiguous following the 1848 Constitution (Warmelink et al., 2010, p. 9). A draft proposal had been initiated in 1976 to include a clause in the new Constitution, that would allow the central state to establish territorial bodies, other than provinces and municipalities.47 The possibility of the re-institution of estates was explicitly mentioned, although there was no need foreseen for that at the moment itself.48 Because of the lack of necessity, the confessional parties KVP, ARP and CHU and the Communists (CPN) voted against the proposal, and the government withdrew the proposal in 1981.49 Nevertheless, this

Verklaring dat er grond bestaat een voorstel in overweging te nemen tot opneming in de Grondwet van een bepaling inzake andere territoriale openbare lichamen in plaats van provincies of gemeenten, Kamerstukken II, 1975 – 1976, 13992 no. 2 (1976). 48 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot opneming in de Grondwet van een bepaling inzake andere territoriale openbare lichamen in plaats van provincies of gemeenten, Kamerstukken II, 1975 – 1976, 13992 no. 3 (1976). 49 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot opneming in de Grondwet van een bepaling inzake andere territoriale openbare lichamen in plaats van provincies of gemeenten, Kamerstukken II, 1980 – 1981, 13992 no. 9 (1981).

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proposal is not a sole incident: government-Rutte II proposed in 2012 to merge the provinces into five super-provinces, but this project was halted in 2014 (Elzinga et al., 2014, p. 872; NOS, 2014). 4.2.2. The battle of the elected mayor. The failure of the aforementioned proposal does not come too surprising in light of the spirit of deconstitutionalisation that accompanied the 1983 constitutional reform (Warmelink et al., 2010, p. 14). Government Commissioner David Simons shed light on this concept, by arguing that “[T]o my opinion, only those provisions should be included in the Constitution, insofar they are so grave that they can only be amended by the difficult and time-consuming way of constitutional amendment.”50 Upon request by the Communists for a concrete example of a practice that required deconstitutionalisation, Simons gave the example of the appointment of the mayor.51 The mayor was traditionally not elected directly, but appointed by governmental decree, as the Constitution prescribed so.52 The relevance of the debate on the elected mayor, is that the possible replacement of the vague doctrine of ‘household’ (see section 4.1.2) was severely impacted by it, since the latter was also subject to the discussion of deconstitutionalisation (Warmelink et al., 2010, p. 13). The Labour Party (PvdA) requested a clear delimitation of the competences of provinces and municipalities in the new constitution, which is why the at that moment Labour-oriented government initiated the replacement of the terminology ‘household’ with ‘public interests’.53 It was meant to be “a short characteristic with a normative meaning, […] in which 50

Bijzondere commissie Grondwet-Kieswet (9181) 1e Vergadering, Handelingen II OCV, 1974 – 1975, pp. 70; 85 (1974). (Statements of Jurgens; Simons). 51 Bijzondere commissie Grondwet-Kieswet (9181) 1e Vergadering, Handelingen II OCV, 1974 – 1975, pp. 8587 (1974). (Statement of Simons). 52 For the current situation, see GW. [Constitution] art. 131. 53 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet van bepalingen inzake provincies en gemeenten, Kamerstukken II, 1975 – 1976, 13990 no. 2 (1975); Verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet van bepalingen inzake provincies en gemeenten, Kamerstukken II, 1977 – 1978, 13990 no. 8 (1978).

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

simultaneously a safeguard against undesirable limitations of the freedom of provinces and municipalities […] can be seen”54 – reminiscent of the far-reaching autonomy of the 1815 Constitution.55 Additionally, the Liberal Democrats (D66) pursued a declaration in the new Constitution to enshrine that ‘territorial decentralisation […] is a fundamental principle for the arrangement of the public administration’56. Sytze Faber, Member of Parliament for the confessional party CDA, opposed the deconstitutionalisation of the competences of the provincial and municipal bodies. In extension, he opposed a direct election of the mayor, as well as a different constitutional taxonomy for the competences of the decentralised bodies.57 He paraphrased Government Commissioner Constant Kortmann, who said years before about the process of deconstitutionalisation that “[t]he royal cachet of our Kingdom threatens to be darkened silently by the weakening of its safeguards, by the hollowing of its prerogatives”.58 When the Labour government got replaced by a liberal (VVD) government, the government met Faber in his pursuit to retain the terminology of ‘household’, so that CDA would be open to explore the possibility of deconstitutionalisation of the appointed mayor.59 Here, it is important to note that the new Constitution was discussed in its entirety, which is why Labour and CPN conceded as well, as they were satisfied with the novel inclusion of fundamental rights in the first chapter of the 1983 Constitution (Warmelink et al., 2010, p. 9). In short, there have been multiple opportunities in the proceedings prior to the constitutional reform of 1983 to again provide Fryslân with more autonomy and competences:

48e Vergadering, Handelingen II 1978 – 1979, pp. 100-102. GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN art. 146 (1815); STAATSREGELING VOOR HET BATAAFSCHE VOLK art. 71 (1801). 56 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet van bepalingen inzake provincies en gemeenten, Kamerstukken II, 1978 – 1979, 13990 no. 24 (1979). 57 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet van bepalingen inzake provincies en gemeenten, Kamerstukken II, 1978 – 1979, 13990 no. 19 (1979). 58 Bijzondere commissie Grondwet-Kieswet (9181) 3e Vergadering, Handelingen II OCV, 1974 – 1975, pp. 381382 (Statements of Jurgens; Aarts; Simons; De Gaay Fortman). 59 Verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet van bepalingen inzake provincies en gemeenten, Kamerstukken II, 1979 – 1980, 13990 no. 10a (1980). 55

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either through the possible re-institution of estates, or through a history-based clarification of the terminology of ‘household’. These have failed, however, most prominently due to lack of political consensus regarding the broader process of deconstitutionalisation: more precisely, the battle for the election of the mayor.60 Duijvendak (2008, p. 352) stipulated that any attempt for an alteration of the Dutch decentralisation fails because of a stalemate that occurs in discussions between the central and decentralised government, but what this analysis of the parliamentary proceedings of the 1983 constitutional reform tells, is that this rather seems to be due to a lack of focus and perceived necessity on part of the central legislator. 4.3.

The Legal Protection of Frisian Language The central state has, however, paid attention to the protection of the Frisian language,

(Westerlauwersk) Frysk. It is still spoken vividly, by about 75% of the residents of the province of Fryslân, of which 55% speaks it as mother tongue (Van der Goot & Hemminga, 2008, p. 24). It enjoys legal protection, as enshrined in the Wet gebruik Friese taal, Frisian Language Act. 61 The Netherlands is party to the 1996 European Charter for Regional or Minority Languages, and declared that it would apply the provisions of that charter regarding Frysk specifically (Van der Goot & Hemminga, 2008, p. 9). The Ministry of BZK stresses, however, that the recognition of Fryslân as bi-lingual province in itself does not confer special legal autonomy to the province (Van der Goot & Hemminga, 2008, p. 23). Communications with administrative organs within Fryslân may occur in Frisian, but on a discretionary basis.62 Furthermore, this possibility is not a priori provided for communications with the central state.63 It flows from this Act that there is quite minimal

It is worth noting that the deconstitutionalisation of the royal appointment of the mayor has only been achieved in 2018, 44 (!) years after the initiation by State Commissioner Simons. It paves the way for a possible democratic election of the mayor, but that is not established yet and it remains yet unclear how this democratic election will be designed (Du Pré & Meijer, 2018). 61 Wet gebruik Friese taal, Stb. 2013, 382, art. 2. Please be referred to section A.9 of this thesis. 62 Id. art. 3. 63 Id. art. 6.

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legal protection of the Frisian language. Nevertheless, the Ministry has found no clashes with the obligations under the aforementioned Charter (Plasterk, 2015, p. 7). The Frisian language is also stimulated in education by both the province of Fryslân as well as the central state, conform the obligations conferred by the Charter (Hoekstra, 2008, p. 4). The Frisian province, however, desires a full decentralisation of the policy regarding the Frisian language and culture, which could lead to a special position for Fryslân with respect to the other provinces (p. 7).64 The Ministry of BZK has found – despite its earlier statement that Fryslân formally enjoys no special status by virtue of its language – that such an asymmetrical decentralisation would be justified regarding the unique nature of the Frisian language in the Dutch state (Hoekstra, 2008, pp. 7–9). It seems, thus, that regarding the Frisian language, the central state is willing to decentralise specifically to Fryslân only, which is unique in Dutch constitutional law: yet, concrete efforts still have to be made.

Provinciewet, Stb. 1992, 54, art. 115, sub. 1.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 5.. 5.1.

The Future for Fryslân

Everlasting Regional Tendencies: The Frisian National Party 5.1.1. From Fryske Beweging to Fryske Nasjonale Partij. Jensma (1998, p. 32) argued that the “Frisian identity cannot be understood otherwise

than in the context in which it functioned and was defined”. It seems that the mobilisation of Frisians who asserted Frisian culture and language since the nineteenth century during the Fryske Beweging, Frisian Movement, occurred analogous to the emergence of the unitary Dutch state. Oppewal (2006, p. 59) indeed asserts that the Fryske Beweging reified the character of Fryslân as the independence and autonomy of the province of Fryslân could supposedly no longer be preserved in the new Kingdom. The Frisian Movement translated the spirit of Romanticism, by stressing the richness of Fryslân through folklore, language and literature (Breuker, 2001, pp. 10-12), paving the way for what Breuker names ‘cultural nationalism’. Jensma (2001, pp. 209-212) asserts that the portrayal of Frisian culture in terms of ‘loss’ originated during the Frisian Movement subsequent to the establishment of the Dutch Kingdom. After the decline of autonomy in 1798, Fryslân felt the need to portray itself in the new Dutch state as an agrarian province, despite its history oriented at science and technology (p. 212). As a political successor to the Fryske Beweging, the Fryske Nasjonale Partij, Frisian National Party (FNP), had been founded in 1962. It serves to represent the interests of the Frisian people, as it regards that local departments of national parties fail to do an appropriate job in doing so (Van den Berg, 2019). The FNP has been in the coalition of the provincial government, States-Executive, since 2011 (Kiesraad, 2019). It has now 4 seats out of 43 in the States-Provincial, is present in various municipal councils in Fryslân and is represented in the national Senate allied with other regional parties in the Onafhankelijke Senaatsfractie,

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Independent Senate Group (Trouw, 2019).65 Moreover, at the level of European politics, the FNP entered into the European Free Alliance, with groups that strive for more regional autonomy as well in Scotland, Wales, Catalonia and Flanders (FNP Fryslân, 2019). 5.1.2. Into a federalist Netherlands? The FNP has listed federalism as one of its key values (FNP Fryslân, 2018, p. 4), because it strives for more autonomy for the province of Fryslân, but only “as a means to help Fryslân forward and to represent its interests. You should always perceive politics as a means to achieve a certain goal: if it would be the case that we achieved all our goals, then you could, figuratively, dissolve the party […]”, per Sybren Posthumus, Member of the StatesProvincial of Fryslân for the FNP (personal communication, 1 May 2019). It compares its desired end-situation with the situation of Wales in the United Kingdom or South Tyrol in Italy (FNP Fryslân, 2018a). Key policy goals include the re-institution of a Frisian University66; the further encouragement of the Fryske Mienskip (Frisian Community) by, inter alia, a permanent Frisian representation in the European Union; and the execution of more locally-oriented and differential cost-benefit analyses of measures on infrastructure and agriculture (FNP Fryslân, 2018b, pp. 14–15; 21–25). It asserts two additional arguments for a more autonomous notion of the province of Fryslân: economic prosperity and public trust. First, the FNP cites findings by the University of Groningen, that federal states enjoy more economic prosperity, because regions have their own means of income (Leeuwarder Courant, 2007). A statistically significant difference has been found between the economic growth of federal states and that of unitary states, in favour of federal states: but in further

In the 2019 elections, the number of 4 seats translated into roughly 10% of the votes. One should note that the largest party in the fragmented landscape of the Frisian States-Provincial occupies 8 seats (Kiesraad, 2019). 66 A probable reason for this goal can again be found in the history of the Frisian Movement. Fryslân had its own academy, the University of Franeker, that got abolished in 1811. A too tight regulation by overseeing committees of the central government has said to be one of the causes for the abolition of this university, and thus, the abolition of this university was a focal point of the Frisian Movement (Breuker, 2001, p. 6).

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research, no significant correlation has been found between decentralisation and economic growth (Crucq & Hemminga, 2007, pp. vii-viii; 62). The researchers thus caution for a premature celebration of this finding (Leeuwarder Courant, 2007). Second, the FNP desires for the Frisian government to be vested with more powers that now belong to the central state, so that public trust in government could increase (Posthumus, 2018, pp. 34–35). In a report by the Frisian Institute for Social Research, it has been stated that ‘met Fryslân gaat het goed, met Nederland gaat het minder’, so to say that ‘all goes well with Fryslân but less so with the Netherlands’ (Visser, Moerman, & Hitzert, 2017, p. 8). In addition, about half of Frisian residents wished for more autonomy in a public poll executed by the University of Uppsala in 2013 (It Nijs, 2013). Despite the fact that the amount of support for the FNP remains somewhat peripherical on the national level, one cannot deny the consistent presence of the party in provincial politics. It testifies of the idea that at least to some degree, a part of Fryslân wishes for the pendulum of centralisation to swing back. 5.2.

The Caribbean Model: Fryslân as More than a Province, Less than a Country 5.2.1. Implied federalism in the colonial legacy of the Dutch Kingdom. Even though the Netherlands might be a unitary state, the country (hereinafter referred

to as ‘European Netherlands’) is incorporated in the larger Kingdom of the Netherlands, that comprises also three autonomous countries in the Caribbean formerly known as the country of the Netherlands Antilles: Aruba, Sint Maarten and Curacao.67 The relations within the Kingdom are governed by the 1954 Statuut voor het Koninkrijk der Nederlanden, Charter for

The Kingdom used to be larger and arranged differently. The Netherlands had also colonised the Dutch East Indies (Indonesia) which became independent in 1949, and Suriname, which left the Kingdom in 1975. The Netherlands Antilles have furthermore ceased to exist in 2010: the islands of Curacao and Sint Maarten became autonomous countries within the Kingdom, whereas the islands of Saba, Bonaire and Sint Eustatius have become municipalities with privileges incorporated into the European Netherlands. Aruba had been an autonomous country within the Kingdom since 1986 already (Oostinide, 2006, p. 614; Heringa et al., 2018, pp. 364-365).

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the Kingdom of the Netherlands. The Charter introduced a form of government that held the middle between a complete integration of the colonies into the European Netherlands, and full independence of the former colonies (Oostindie, 2006, p. 614). The structure of the Kingdom reminisces of a federation, thus one can speak of ‘implied federalism’ (Heringa et al., 2018, p. 366). All four constituent countries entered into co-operation voluntarily based on the principles of equality and sovereignty.68 Accordingly, the countries have their own spheres of autonomy governed by their own organs, as laid down more extensively in their respective constitutions (Heringa et al., 2018, p. 366). Competences are delegated to either a constituent state or the Kingdom. On the latter fall core state powers, such as the defence forces, foreign policy and nationality.69 The Kingdom may attribute other matters to its sphere of exclusive competence, but only with the consent of all countries involved (Heringa et al., 2018, p. 372). This differs gravely from the badly delimited doctrine of ‘household’ for provinces in the European Netherlands – where the central state can legislate without consulting the provinces beforehand – and reminisces somewhat of the unanimous voting procedure in the Republic. A resolution mechanism to solve conflicts that arise between the Kingdom and a member country is constitutionally foreseen but has not been designed yet (Aharouay, Rijlaarsdam, & Van den Dool, 2019).70 The constituent states, save the European Netherlands, can choose to secede from the Kingdom. Since a federal structure rests on the principle of democracy, a secession may be negotiated if the people democratically opt for that.71 One should note that this right flows forth from the right to self-determination that is attributed to (colonially) suppressed peoples in international law (Heringa et al., 2018, p. 366; Sterio, 2018).

STATUUT NED [Charter] preamble. Please be referred to section A.10 of this thesis. One should note that this formulation is often criticised because it materially has little meaning, since the Caribbean countries are economically quite powerless, as compared to the European Netherlands (Oostindie, 2006, p. 614). 69 Id. art. 3. 70 Id. art. 12a. 71 Reference re Secession of Quebec, 2, S.C.R., 217 (SCC 1998).

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5.2.2. Into a status aparte for Fryslân? The FNP desires to see Fryslân as an autonomous region in the Netherlands, safeguarded as such in the Constitution. Matters such as nationality and defence forces would remain with the competence of the central state, but Fryslân should acquire an autonomous legislative space (Posthumus, personal communication, May 1, 2019). A solution could be to have a status aparte for Fryslân in the Kingdom, enshrined in the Charter. This would mean that Fryslân would be more than a province. Theoretically, it could become an autonomous country under the supervision of the Kingdom, but that is unrealistic considering the fact that Aruba, Curacao and Sint Maarten only possess their right to external self-determination because of their colonial past; and that in addition, peoples may only exert their right to self-determination externally if they can no longer do so internally.72 Still, one could think of a status for Fryslân within the Kingdom less severe than an autonomous country yet larger than a province. It reminisces of successful hybrid solutions that have been found elsewhere around the world, like in South Tyrol in Italy, which de facto has as much power as a constituent state in a federation (Wolff, 2007, p. 329) One should note that the countries of Curacao and Sint Maarten have become autonomous following referendums. Sybren Posthumus (personal communication, May 1, 2019) expressed that some type of public participation indeed seems a prerequisite for the question of autonomy. Thus, the FNP should first consult the Frisian population to examine whether it wants more autonomy: if it answers in the affirmative, the FNP could opt for a solution in the structure of the Kingdom of the Netherlands, to acquire a status sui generis for Fryslân as less than a country, but more than a province. Despite the ideas already developed by the FNP as aforementioned, further inquiry should be done into the adequate preparation of the legal framework of the Kingdom for such a status sui generis for Fryslân. 72

Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.); Katangese People’s Congress v. Zaire, AHRLR, 72 (ACHPR 1995).

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY 6.

Conclusion

The Greater Frisians continued their tradition of autonomy from the Middle Ages onwards in the confederation of the Republic of the Seven United Netherlands, which allowed for an asymmetrical and authentic arrangement of the inner administration of Fryslân, with the representation of the commoners at the centre. When the Kingdom of the Netherlands had been founded following the Batavian Revolution, several State Regulations swung the pendulum of centralisation back and forth. The 1801 State Regulation provided for the broadest legislative autonomy in history, since it clearly delimited the spheres of the central state and Fryslân respectively. Even though Fryslân’s autonomy became impaired ever since, the 1815 Constitution found a sound middle way between the French ideals of centralisation and the provincialism of the Dutch Republic. Until 1848, Fryslân was able to administer its own affairs in the way that fit best. Despite the de jure unitary nature of the Dutch state, the state still enshrined legal protection of some federalist characteristics: it merely differed which such characteristics were protected. The predecessors to present-day mechanisms autonomie and medebewind were clearly delimited, both in law and in practice, even though the autonomous legislative powers for the province have shifted from reserved to residual. The present mechanisms of autonomie and medebewind seem, however, poorly designed. Autonomie is based on the ambiguous notion of a provincial ‘household’ and has been severely limited by jurisprudence. The mechanism of medebewind, creates legal obligations rather than autonomy for the province. It mitigates this shortcoming by conferring substantial political freedom regarding fields of policy of importance to Fryslân, including agriculture and environmental policy. Nonetheless, the research question focused on legal autonomy, and medebewind legally speaking merely creates obligations rather than freedom on part of Fryslân.

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It should be noted that the present Dutch Constitution almost incorporated a clause that allowed for the re-institution of estates with more autonomy – modelled after the Republic – or for a clarification and expansion of the doctrine ‘household’, modelled after the 1815 Constitution. Both ideas failed, due to a parliamentary battle that did not even concern provincial autonomy at heart. It seems that in the current Dutch state, the pendulum of centralisation has permanently swung in favour of the central state. In conclusion, Fryslân has considerably lost in its legal autonomy over history, with two major turning points being the 1815 Constitution as well as the 1848 Constitution, despite this slope of declining autonomy already being inserted from the French-oriented 1798 State Regulation onwards, when Fryslân could no longer persist with its authentic internal administration nor its reserved powers. Nevertheless, a mitigating factor is that Fryslân enjoys legal protection of its language and the fact that the central state is willing to make efforts to decentralise to Fryslân regarding its language on an asymmetrical basis. This protection seems minimal but is nevertheless laudable. Regionalist tendencies are still consistently represented in Fryslân’s provincial politics – although admittedly in the periphery of national politics – by the Fryske Nasjonale Partij (FNP). This party desires for a federalist structure of the Netherlands, all in co-operation with the rest of the country. A possible solution to the quest of the Frisian National Party could be a status aparte for Fryslân within the Kingdom of the Netherlands. One should not forget that the Kingdom already entails three other autonomous countries and reminisces of a federal structure, predominantly by its clear delimitation of competencies that fall either on part of the Kingdom or the respective autonomous country, but also the (still awaited) institution of a neutral arbiter in case of conflict. One could think of Fryslân as becoming more than a province but less than a country within the Kingdom, insofar the Frisian population also feels the need for such a status sui generis.

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The conclusions in this thesis should be interpreted with modesty. Kestemont (2018, p. 13) asserts rightfully so that a historical-legal analysis must be interpreted with caution, because “in the past some problems or legal constructs did not (yet) exist or have developed over time”. Breuker (2001, p. 3) warns for deducing general logic from historical events: “Search until one cannot find anymore, and only then, finish off with explanatory propositions’. Admittedly, further research must be done on this matter. One can think of a similar analysis to be conducted for the other eleven provinces, to place the developments of Fryslân in an even broader context, or an analysis that also includes considerations on how the body of the ‘municipality’ has developed and whether that latter development mitigates the loss of autonomy of Fryslân as a province. Additionally, for concrete policy recommendations, a comparative case study could be conducted examining other regions that successfully have acquired autonomy, such as the aforementioned example of South Tyrol. One may question how to constructively proceed with the conclusions of this thesis, since it again presents the history of Fryslân in a loss-frame. Jensma (2001, pp. 219-220), as mentioned, recognised the prevalence of this frame but wisely asserted that “[t]he solution lies in naming the problem, creating text, reformulating the value of Fryslân, in the creativity of the now. Get closer to the past by moving away from it.”

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nasjonale-partij-is-het-fries-zijn-hipper-dan-ooit-maar-gaat-dat-niet-ten-koste-van-defriese-eigenheid~b4fcdd38/ Van der Goot, A., & Hemminga, P. (2008). Derde periodieke rapportage inzake de maatregelen welke Nederland heeft getroffen ten aanzien van de Friese taal en cultuur. Retrieved from Ministry for the Interior and Kingdom Affairs website: https://www.eerstekamer.nl/behandeling/20080701/derde_periodieke_rapportage_inza ke/document3/f=/w26389cbijlhandvest.pdf8 Van der Woude, W. (2015a). Commentaar op artikel 124 van de Grondwet. In E. M. H. Hirsch Ballin & G. Leenknegt, Artikelsgewijs commentaar op de Grondwet. Retrieved from https://www.nederlandrechtsstaat.nl/module/nlrs/script/viewer.asp?soort=commentaar &artikel=124 Van der Woude, W. (2015b). Commentaar op artikel 127 van de Grondwet. In E. M. H. Hirsch Ballin & G. Leenknegt, Artikelsgewijs commentaar op de Grondwet. Retrieved from https://www.nederlandrechtsstaat.nl/module/nlrs/script/viewer.asp?soort=commentaar &artikel=127 Verkruisen, W. G. (1992). Artikel 124. In A. K. Koekkoek & P. W. C. Akkermans, De Grondwet: Een aritkelsgewijs commentaar. Zwolle, the Netherlands: W. E. J. Tweenk Willink. Visser, M., Moerman, S., & Hitzert, J. (2017). Panel Fryslân over vertrouwen in politiek en samenleving. Retrieved from Fries Sociaal Planbureau website: https://www.fsp.nl/wpcontent/uploads/2019/01/20170502_fsp_pf_over_vertrouwen_in_politiek_en_samenle ving_0.pdf

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Warmelink, H. G., Elzinga, D. J., Broeksteeg, J. L. W., De Jong, M. A. D. W., Bunschoten, D. E., & Bovend’Eert, P. P. T. (2010). Constitutionele normen en decentralisatie: Een evaluatie van hoofdstuk 7 Grondwet. Retrieved from https://www.rug.nl/research/portal/files/2590846/Hoofdstuk7.pdf Wolff, S. (2007). Complex Power Sharing as Conflict Resolution: South Tyrol in Comparative Perspective. In J. Woelk, J. Marko, & F. Palermo, Tolerance through Law (pp. 329–370). Leiden, the Netherlands: Koninklijke Brill N.V.

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Appendix A. Statutes of law Only relevant articles of law, that is articles to which reference is made, have been included. The statutes have been included in order of appearance. Any entries between square brackets have been added by the author of this thesis. A.1

1579 Union of Utrecht

“Unie van Utrecht” transl. Rowen, H. H. (1972). The low countries in early modern times: A documentary history. New York City, United States: Harper & Row, pp. 69-74. Retrieved from: http://www.constitution.org/cons/dutch/Union_Utrecht_1579.html Preamble Whereas, since the Pacification made at Ghent, by which almost all the provinces of these Netherlands bound themselves to help each other with their lives and goods in order to drive out the Spaniards and other foreign nations, together with their adherents, we have discovered that these same Spaniards under Don John of Austria and their other chiefs and captains have endeavored and still daily endeavor to bring these provinces as a group and individually under their subjection, tyrannical government, and slavery and to divide and dismember these same provinces by arms and wily practices and to destroy and subvert the Union created by this aforesaid Pacification, with the aim of the utter ruin and downfall of the aforesaid lands and provinces, in which enterprise they persevere, having recently solicited certain cities and quarters with letters and attacked and invaded others, to wit, Gelderland, with arms, Therefore, the members for the Duchy of Gelderland and County of Zutphen, the counties and lands of Holland, Zealand, Utrecht, Friesland, and the districts between Eems and Lauwers have found it wise to unite and bind each other more closely and specifically, not in order to split away from the aforesaid general Union made by the Pacification at Ghent, but in order further to strengthen it and to take measures against the troubles which may come upon them from the wiles, attacks, and violence of their enemies, by determining how and what each of these provinces will do in such a case and acting to protect them against the violence of their enemies. And to prevent further separation of the aforesaid provinces and individual members while the others remain in the aforesaid general Union and Pacification of Ghent, the deputies of the aforesaid provinces, with the full authority granted by their principals, have decreed

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and concluded the following Points and Articles, without thereby in any way desiring to secede from the Holy Roman Empire. Article 1 Firstly, the aforesaid provinces will form an alliance, confederation, and union among themselves, as they do hereby form an alliance, confederation, and union, in order to remain joined together for all time, in every form and manner, as if they constituted only a single province, and they may not hereafter divide or permit their division or separation by testament, codicils, donations, cessions, exchanges, sales, treaties of peace or marriage, or for any other reason whatsoever. Nevertheless each province and the individual cities, members, and inhabitants thereof shall each retain undiminished its special and particular privileges, franchises, exemptions, rights, statutes, laudable and long practiced customs, usages and all its rights, and each shall not only do the others no damage, harm, or vexation but shall help to maintain, strengthen, confirm, and indeed protect the others in these by all proper and possible means, indeed if need be with life and goods, against any and all who seek to deprive them of these in any way, whatever it may be. It is fully agreed that differences which now exist or may develop hereafter between some of the aforesaid provinces, members or cities of this Union, concerning their particular and special privileges, franchises, exemptions, rights, statutes, laudable and long practiced customs, usages and rights, shall be decided by means of the ordinary courts of justice, by arbiters, or by friendly agreement, and the other lands or provinces, cities and members thereof shall not interfere, as long as the parties submit to procedures at law, unless they intercede for the sake of agreement. Article 2 The Alliance and Union is to be maintained against attempts upon it made in the name of the Peace of Ghent or under the pretext of re-establishing Roman Catholicism, removing any innovations introduced since 1558, or overthrowing the present Union of Utrecht. Article 4 Item, in order to assure the aforesaid provinces, cities and members thereof more effectively against all violence, the frontier cities and others where this shall be found necessary in any provinces, shall be maintained and fortified at the cost of the cities and provinces in which they are situated, with the Generality providing one-half of the costs. Provided that if it shall be found expedient to build several new fortresses in any of the aforesaid provinces, or to

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rebuild or tear down any that now exist, then the costs shall be borne by all the aforesaid provinces in common. Article 5 And to provide for the expenses which shall be found necessary in such cases as the above for the defense of the aforesaid Provinces, it is agreed that there will be introduced, raised, and leased to the highest bidder every three months or at other convenient time, in all the provinces upon the same footing for their common defense, various taxes upon all kinds of wines, beers of domestic and foreign brew, the grinding of corn and grain, salt, gold, silver, silk and woollen cloth, livestock and cultivated land, slaughtered beasts, horses, oxen sold or exchanged, goods weighed at public scales, and all other goods which it shall be unanimously agreed hereafter to tax. In accordance with the ordinance to be drafted and adopted upon this matter, the revenues of the domains of his Royal Majesty shall also be employed for these ends, after deducting the charges upon them. Article 9 Item, that no treaties of truce or peace shall be made or wars begun, nor any taxes or contributions be raised affecting this Union in general except with the general advice and consent of the aforesaid provinces. But in other matters affecting the maintenance of this Confederation and the results and consequences thereof, decisions shall be made according to the opinions and votes of a majority of the ·provinces included in this Union, which shall be counted according to the existing practice of the States General but only provisionally until other arrangements are ordered by the common decision of the Allies [the word ‘Allies’ is used for members of the Union throughout the document]. Provided that in the event that the provinces cannot reach agreement in matters of truce, peace, war, or taxation, then the difference will be referred to and provisionally submitted to the stadholders now in office in the aforesaid United Provinces, who shall bring the parties to an agreement or make their own decision in the conflict, as they shall deem proper. It shall be understood that if the stadholders themselves cannot come to an agreement in such matters, they shall name impartial assessors or deputies of their own choice and the parties shall be held to accept the decisions made by the stadholders in this manner.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY A.2

1798 State Regulation for the Batavian People

“Staatsregeling voor het Bataafsche Volk” ed. Staatsregeling des Bataafschen Volks. (1798). The Hague, the Netherlands: ’s Lands Drukkerij. transl. Ramdjan, T. T. T. K. (May 25, 2019). Unofficial and manual. Preamble The Batavian People, forming itself to an indivisible State, and realizing that the prevalent decay of all Governments lies in the misrecognition of the natural and holy rights of Man in society, declares the following theses as the legal basis, on which It establishes its State Regulation, as well so many rules, as It wills to have altered its civil and political affairs. ACT OF STATE REGULATION Article 1 The Batavian Republic is one and indivisible. Article 3 The current Territory of the Batavian Republic is divided in eight Departments, to follow: First Department: of the Eems. Second Department: of the Old Yssel. Third Department: of the Rhine. Fourth Department: of the Amstel. Fifth Department: of Texel. Sixth Department: of the Delf. Seventh Department: of the Dommel. Eight Department: of the Schelde and Maas. Article 5 Each Department will be divided as soonest in seven, if possible equally populated Rings, and each Ring in distinct Municipalities.

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Article 30 The Representing Body is that, which represents the entire People, and in its name gives laws, according to the prescription of the State Regulation. Article 83 The Executive Rule is attributed to an independent Body, composed of five Members. Article 84 These Members are elected by the Body of the Representing Highest Body, save for itself. Article 107 It [the Executive Rule] has supervision over the acts of the Departmental and Municipal Administrations, as well as the Courts of Law and Courts of Appeal. It can suspend those acts, as long as they are in violation with the Laws, in their effect, as well as their Members in their control, and for the latter depose them, insofar this decision is reasoned; without prejudice for these forenamed Administrations and Courts, or the special Members of those, at all times, their special accountability or complaint to the Representing Body. Article 147 The Departmental and Municipal Administrations are Administrative Bodies, submissive and accountable to the Executive Rule. In case of delinquency, the Members can be deposed of their positions, in accordance with Article 107. Article 148 They [the Departmental and Municipal Administrations] are held, each in their own affair, to announce all the laws and orders of the Executive Rule, sent to them, without delay, and to honor these punctually. Article 151 They may be in negotiation with each other on affairs attributed to them, but never on the general interests of the Republic.

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Article 200 All Money of the Republic, either existent in taxation, either in assets, whatever named, of which the income prior to the enforcement of the State Regulation have become in favor of the Treasury of the Generality, and so on the Treasuries of the distinct Provinces of the three Quarters of Gelderland, of the Province Drenthe, and of Batavian Brabant, are declared, and held from now on, as national incomes and assets of the entire Batavian People. Article 201 The Debts and Alliances, committed prior to the enforcement of the State Regulation, and committed not only by or by virtue of the Generality, but also by virtue of the distinct Provinces, the three Quarters of Gelderland, the Province Drenthe and Batavian Brabant, are declared and held from now on, as national debts and alliances for the entire Batavian People. A.3

1801 State Regulation for the Batavian People

“Staatsregeling voor het Bataafsche Volk” ed. Ministry for the Interior and Kingdom Relations. (2019). De Nederlandse Grondwet. Retrieved from: https://www.denederlandsegrondwet.nl/id/vi4kk2e1n4zc/ staatsregeling_van_1801_het_minder transl. Ramdjan, T. T. T. K. (May 25, 2019). Unofficial and manual. Article 70. Precise execution of commands State-Rule The Departmental Administrations take care for the precise execution of all commands, issued by or by virtue of the State-Rule, and are accountable to the latter. Article 71. Mandate: arrest of Statutes, Approvals, Regulations and Ordonnances Those [Departmental Administrations] possess the decision regarding all, which belongs to the interior Policy, Economy and Finances of the Department, and the power to arrest Statutes, Approvals, Regulations and Ordonnances, insofar they are not in violation of the general Laws. They also provide, without prejudice of affairs, letters of Venia Aetatis to minors. Article 74. Domestic provisions Each Municipality has the free decision regarding its domestic interests and administration, and will draft regarding those all necessary Domestic provisions.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY A.4

1815 Constitution for the Kingdom of the Netherlands

“Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815” ed. Ministry for the Interior and Kingdom Relations. (2019). De Nederlandse Grondwet. Retrieved from: https://www.denederlandsegrondwet.nl/id/vi6jej9wwlg8/ grondwet_van_1815_samenvoeging_met transl. Ramdjan, T. T. T. K. (May 25, 2019). Unofficial and manual. Article 1 The Kingdom of the Netherlands (as described by the tractate between the Powers of Europe, discussed at the Congress of Vienna, concluded and signed on 9th of June 1815), consists of the following Provinces: Brabant, (North) Brabant, (South), Limburg, Gelderland, Luik, Vlaanderen, (East), Vlaanderen, (West), Henegouwen [Hainaut], Holland, Zeeland [Zealand], Namen [Namur], Antwerpen [Antwerp], Utrecht, Vriesland [Friesland / Fryslân], Overijssel, Groningen, and Drenthe. The Grand-Duchy of Luxembourg, in the frontiers determined by the mentioned tractate, placed under the same Sovereignty as the Kingdom of the Netherlands, will have the same Constitution, save its commitments to the German alliance.

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Article 129 The States of the Provinces are composed of members, elected by the following three stands, namely: by the Nobles or Knightships, by the Cities, by the Agrarian Stand. Article 144 To the States of the Provinces is attributed the election of members for the Second Chamber of the States-General from within or outside of themselves, and as much as possible from all places of their Province. Article 145 The States are borne with the execution of laws regarding the protection of different religious convictions and their exterior worships, the public education, the encouragement of agriculture, the commerce, the factories and traffic, and so forth all other affairs regarding general interests, which are sent to them to that purpose by the King. Article 146 To the States is left, in entirety and all, the decision regarding all that belongs to the regular interior policy and economy. All those regulations and ordonnances insofar they deem necessary for the general provincial interest, must prior to seizure, be subjected to approval of the King. Article 147 They will take care that the export through, to, or the import from any other of the Provinces will not undergo any obstructions, insofar by general law no provisions have been made regarding this matter. Article 149 The King has the authority to suspend decisions of the States, if they may violate the general laws or the general interest, and to leave them out of effect. Article 154 The Administrations at country, either of lordships, districts or towns, will be arranged in such a manner, as will be judged mutually compatible with both the special circumstances of either, as well as the interests of the residents and the legally obtained right of the interested,

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all in accordance with this Constitution, and with further regulations, on part of the States, to be draft, which they, with their considerations, subject to the enforcement of the King. Article 158 No new local taxation can be imposed without prior consent of the King. Article 162 Justice, in the entirety of the Netherlands, will be spoken in name of and by virtue of the King. Article 163 There will be introduced a general lawbook of civil law, of commerce, of corporal law, of the composition of the judicial power, and of the manners of procedure. Article 166 The judicial power will only be exercised by courts of law, instituted by or by virtue of this Constitution. Article 221 The States-Provincial have the supervision regarding all other, not in the previous article intended, water works, as well as canals, waterways, lakes, puddles, roads and bridges, within their Province, which are administered and financed by colleges, municipalities or privates. They will take care, that those works are made and maintained decently. A.5

1848 Constitution for the Kingdom of the Netherlands

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Article 131 To the States is left the decision and administration of the provincial household by law. Save for the prescriptions in Art. 129, all those regulations and ordonnances, as they deem necessary to make for the provincial interest, must be subjected to the approval of the King. They will take care that the export through, to, and import from other provinces is not obstructed. Article 138 The composition, arrangement and competence of the municipal administrations will, after the States-Provincial have been heard, regulated by law, considering the prescriptions contained in the following provisions. A.6

1983 Constitution for the Kingdom of the Netherlands (Gw)

“Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815” (Gw) transl. Ministry of the Interior and Kingdom Relations. (October 18, 2012). Retrieved from: https://www.government.nl/documents/regulations/2012/10/18/the-constitutionof-the-kingdom-of-the-netherlands-2008 Article 93 Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published. Article 94 Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons. Article 120 The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts. Article 123 1. Provinces and municipalities may be dissolved and new ones established by Act of Parliament. 2. Revisions to provincial and municipal boundaries shall be regulated by Act of Parliament.

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Article 124 1. The powers of provinces and municipalities to regulate and administer their own internal affairs [read: household] shall be delegated to their administrative organs. 2. Provincial and municipal administrative organs may be required by or pursuant to Act of Parliament to provide regulation and administration. Article 131 The King’s Commissioners and the mayors shall be appointed by Royal Decree. Article 132 1. Both the organisation of provinces and municipalities and the composition and powers of their administrative organs shall be regulated by Act of Parliament. 2. Supervision of the administrative organs shall be regulated by Act of Parliament. 3. Decisions by the administrative organs shall be subject to prior supervision only in cases specified by or pursuant to Act of Parliament. 4. Decisions by the administrative organs may be quashed only by Royal Decree and on the grounds that they conflict with the law or the public interest. 5. Provisions in the event of non-compliance in matters of regulation and administration required under Article 124, paragraph 2, shall be regulated by Act of Parliament. Provisions may be made by Act of Parliament notwithstanding Articles 125 and 127 in cases of gross neglect of duty by the administrative organs of a province or municipality. 6. The taxes which may be levied by the administrative organs of provinces and municipalities and their financial relationships with the central government shall be regulated by Act of Parliament. Article 137 1. An Act of Parliament shall be passed stating that an amendment to the Constitution in the form proposed shall be considered. 2. The Lower House may divide a Bill presented for this purpose into a number of separate Bills, either upon a proposal presented by or on behalf of the King or otherwise. 3. The Lower House shall be dissolved after the Bill referred to in the first paragraph has been published.

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4. After the new Lower House has assembled, the two Houses of the States General shall consider, at second reading, the Bill referred to in the first paragraph. The Bill shall be passed only if at least two thirds of the votes cast are in favour. 5. The Lower House may divide a Bill for the amendment of the Constitution into a number of separate Bills, either upon a proposal presented by or on behalf of the King or otherwise, if at least two-thirds of the votes cast are in favour. A.7

1992 Dutch Provinces Act (Provinicewet)

“Wet van 10 september 1992, houdende nieuwe bepalingen met betrekking tot provincies” transl. Ministry of the Interior and Kingdom Relations. (May 6, 2014). Retrieved from: https://www.government.nl/documents/regulations/2014/09/25/act-of-10september-1992-containing-new-provisions-governing-provinces Article 105 1. The power to regulate and administer the internal affairs [read: household] of the province is vested in the provincial authority. 2. A provincial authority may be required to regulate and administer these internal affairs [read: household] by or pursuant to an Act of Parliament other than the present Act in order to ensure its implementation, provided always that directions may be issued to the provincial authority and decisions may be imposed on the provincial authority or adopted in its stead only if the power to do so has been granted by Act of Parliament. 3. Without prejudice to the provisions of sections 108, subsection 5 and 117, subsection 4, central government will reimburse such of the costs incurred in implementing subsection 2 as are borne by the province. Article 115 1. Our Minister promotes decentralisation for the benefit of the provinces. 2. Notwithstanding the provisions of section 117, subsection 2 of the Municipalities Act (Bulletin of Acts and Decrees 1992, 96), proposals for measures that treat certain matters as part of central government policy may be made only if the matter in question cannot be dealt with efficiently and effectively by the provincial authorities.

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Article 118 The power to make provincial ordinances continues to exist in respect of subjects covered by Acts of Parliament or orders in council in so far as the ordinances will not conflict with such Acts of Parliament or orders in council. Article 119 The provisions of provincial ordinances on subjects covered by an Act of Parliament or an order in council cease to have effect by operation of law. Article 143 1. Provincial ordinances are adopted by the provincial council [read: States-Provincial] in so far as the power of adoption has not been granted to the provincial executive or the King’s Commissioner by Act of Parliament or by the provincial council pursuant to Act of Parliament. The provincial council may not adopt ordinances containing generally binding regulations unless it has first enabled the provincial executive to express its wishes and reservations to the provincial council. 2. The other powers referred to in section 105, subsection 1 are vested in the provincial council. 3. The other powers referred to in section 105, subsection 2 are vested in the provincial executive, in so far as they have not been granted to the provincial council or the King’s Commissioner by or pursuant to Act of Parliament. Article 145 The provincial council [read: States-Provincial] makes the ordinances that it considers necessary in the interests of the province. Article 261 1. A written or non-written decision of the provincial authority which is intended to have any legal consequence may be annulled by royal decree. 2. Sections 266 to 274a and parts 10.2.2 and 10.2.3 of the General Administrative Law Act apply mutatis mutandis to the annulment of a non-written decision intended to have any legal consequence.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY A.8

1985 European Charter of Local Self-government

“Europees Handvest inzake lokale autonomie” ed. Council of Europe. (1985. 15 October). ETS 122. Article 8 – Administrative supervision of local authorities’ activities 1. Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute. 2. Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities. 3. Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect. Article 12 – Undertakings 1. Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs: – Article 2, – Article 3, paragraphs 1 and 2, – Article 4, paragraphs 1, 2 and 4, – Article 5, – Article 7, paragraph 1, – Article 8, paragraph 2, – Article 9, paragraphs 1, 2 and 3, – Article 10, paragraph 1, – Article 11. 2. Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article. 3. Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an

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integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General. A.9

2013 Dutch Frisian Language Act (Wet gebruik Friese taal)

“Wet van 2 oktober 2013, houdende regels met betrekking tot het gebruik van de Friese taal in het bestuurlijk verkeer en in het rechtsverkeer” ed. Ministry for the Interior and Kingdom Relations. (2013). Retrieved from: https://wetten.overheid.nl/BWBR0034047/2014-01-01 transl. Ramdjan, T. T. T. K. (May 25, 2019). Unofficial and manual. Article 2 The official languages in the province of Fryslân are Dutch and Frisian. Article 2a Considering the joint responsibility and duty of care towards the Frisian language and culture, the central state and the province of Fryslân periodically join in agreements on administration elaborating on the responsibility regarding the Frisian language and culture. By virtue of the international treaty obligations on this field, these administrative agreements may also comprise fields of policy relevant to the Frisian language and culture, outside of the usage of the Frisian language in administrative and legal proceedings. Article 3 1. Every person may use the Frisian language in communication with administrative organs, insofar those are located in the province Fryslân, comprising those employed under their responsibility. 2. The first subsection does not apply when the administrative organ has requested to use the Dutch language on the ground that usage of the Frisian language would lead to an unreasonable burden on the administrative proceedings. Article 6 1. Our Minister whom it concerns [read: Minister of the Interior and Kingdom Relations] can, for elements of the central government of which the working field concerns the province

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Fryslân or part of it, institute rules regarding the usage of the Frisian language in written pieces and verbal intercourse. 2. To the execution of the first subsection, a body of the central government may draft a policy plan regarding the usage of the Frisian language. A.10 1954 Charter for the Kingdom of the Netherlands (Statuut) “Wet van 28 October 1954, houdende aanvaarding van een statuut voor het Koninkrijk der Nederlanden” ed. Ministry for the Interior and Kingdom Relations. (2017). Retrieved from: https://wetten.overheid.nl/BWBR0002154 transl. Ramdjan, T. T. T. K. (May 10, 2019). Unofficial and manual. Preamble The Netherlands, Aruba, Curacao and Sint Maarten, Ascertaining that the Netherlands, Suriname and the Netherlands Antilles have declared in 1954 out of free will to accept a new legal order in the Kingdom of the Netherlands, in which they will autonomously represent their own interests and on foot of equality will take care of communal interests and will provide reciprocal aid, and have decided in joint agreement to determine the Charter for the Kingdom; Ascertaining that the statutory relation with Suriname has been terminated starting 25 November 1975 by alteration of the Charter by Kingdom Law of 22 November 1975, Stb. 617, PbNA 233; Ascertaining that Aruba has declared out of free will to accept this legal order starting 1 January 1986 for a period of ten years and starting 1 January 1996 for an indefinite period of time; Considering that Curacao and Sint Maarten each have declared to accept this legal order out of free will as a country; Have decided in joint agreement to determine the Charter for the Kingdom as following. Article 1 The Kingdom comprises the countries the Netherlands, Aruba, Curacao and Sint Maarten. Article 3 1. Save what is decided elsewhere in the Charter, the competencies of the Kingdom are:

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a. the maintenance of the independence and defence of the Kingdom; b. the foreign affairs; c. the Netherlandership; d. the regulation of the knightly orders, even so the flag and insigna of the Kingdom; e. the regulation of the nationality of ships and the postulation of requirements regarding the safety and navigation of sea ships under the flag of the Kingdom, excluded sailing ships; f. the supervision on general rules regarding the admission and deportation of Netherlanders; g. the postulation of general conditions for the admission and deporation of foreigners; h. the extradition. 2. Other matters may, in joint agreement, be declared a competency of the Kingdom. Article 55 applies accordingly. Article 12a By Kingdom Law there will be provisions for the arbitration of disputes in Kingdom Law between the Kingdom and the countries. Article 43 1. Each of the countries takes care of the materialisation of the fundamental human rights and freedoms, legal certainty and the soundness of the administration. 2. The guaranteeing of these rights, freedoms, legal certainty and the soundness of the administration is a competency of the Kingdom. Article 55 1. Alteration of this Charter occurs by Kingdom Law. 2. A proposal to alteration, approved by the States-General, will not be approved by the King, before it is accepted by Aruba, Curacao and Sint Maarten. This acceptance will occur by national regulation. This national regulation will not be determined before the proposal is approved by the States in two readings. In case the proposal is approved in first reading by two thirds of casted votes, the determination will occur immediately. The second reading will take place within a month after the proposal in first reading is approved. 3. In the case and insofar a proposal to alter the Charter deviates from the Constitution, the proposal will be considered in the same manner as the Constitution determines for proposals

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY to alter the Constitution, taking into consideration that both Chambers in the second reading can accept the proposed alteration by absolute majority of casted votes.

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Appendix B. Figures

Figure B.1. Map showing the location of Fryslân in the Netherlands, and the division of Fryslân into municipalities. Source: Provincie Fryslân (2019).

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Figure B.2. Map showing the settlement of the Frisians. All coloured areas were allegedly part of the Empire of Magna Frisia. Source: If Then Is Now. (2014).

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Figure B.3. Map of the Republic of the Seven United Netherlands (1579 – 1795). Source: Van der Kaap, A. (2014). Histoforum.

THE HISTORY AND FUTURE OF FRYSLÂN’S LEGAL AUTONOMY

Figure B.4. Map of the United Kingdom of the Netherlands (1815 – 1830). Source: Bohn, F. (1816). Haarlem, the Netherlands: Bohn Stafleu van Loghum.