Politics, law and race: the Netherlands, ‘Black Pete’ and Arts. 8 & 9 ECHR

The arrival of St Nicholas is a major event in the run-up to Christmas in the Netherlands and in October 2013 a United Nations adviser[1] caused a storm of protest when she described Zwarte Piet, (a.k.a. “Black Pete”), the “helper” of St Nicholas, as “a throwback to slavery” and suggested that his depiction should be banned. As a consequence, there was a Facebook “Pietitie” (Pete-ition) defending the custom, which attracted more than two million “likes” in only two days[2] and an assurance from a wrong-footed UNESCO that the Santa Claus traditions in the Netherlands would not be investigated for racism.

Against this background, on 3 July this year, the Amsterdam District Court considered the Mayor’s licensing of the 2013 event and ruled that Zwarte Piet was insulting to black people and perpetuated racist stereotypes.[3] Furthermore, the Mayor was given six weeks to decide whether or not he would hold the city’s annual Sinterklaas parade, a decision which would have a knock-on effect on the hundreds of similar events throughout the Netherlands. In the event, the matter was finally decided on 12 November 2014 – three days before the planned parades – when the Raad van State ruled that whilst the Mayor of Amsterdam had vires to permit the Sinterklaasintocht, he was not empowered to make a judgment relating to Zwarte Piet.

In summary:

  • Public order: The Administrative Law Division was of the opinion that the powers of the Mayor when granting authorizations of events were limited to the maintenance of public order, i.e. “orderly community life.” The concept of public policy was not so extensive that its enforcement should take into account “the avoidance of stigmatization, discrimination or discrimination.” The Mayor could not judge the substantive admissibility of public communications since the Dutch constitutional system did not provide for such a determination on the permitted content of an event or demonstration.
  • Infringement of Articles 8 and 9 ECHR: In granting the event licence for Sinterklaasintocht, the Mayor was not empowered to address the issues associated with the possible infringement of fundamental rights. Likewise, the Administrative Law Division could not make such a judgment: the issue of whether the figure of Zwarte Piet actually violated fundamental rights could be submitted to a judge, but not in proceedings against the Mayor about the event licence for Sinterklaasintocht. However, a procedure could be initiated by the civil courts in delict/tort against the organizers and executors of the event.

The full text of the judgment, case number 201406757/1, is here.

Sinterklaasintocht parades 2014

Following the July court decision, Amsterdam’s Mayor indicated that the changes made to Black Pete’s appearance in 2013 (no golden earrings, softer hair and less-prominent lips) would continue over the next four years. However, this has not been reflected elsewhere in the Netherlands. A survey by the New York Times in October indicated that the majority of Sinterklaas committees across the country did not intend to make changes in response to the on-going debate: only 6 villages out of 211 locations said that they would adjust the appearance of Zwarte Piet: others were awaiting the decision of the Raad Van State.

This year’s Sinterklaasintocht parades were led by the town of Gouda; and on 15 November CBC News reported

“… some of the worst scenes of unrest in the increasingly acrimonious debate about Black Pete … [O]pponents scuffled with police on the historic market place … as thousands of children welcomed Saint Nicholas nearby”.

According to Prosecution Office spokesman Wouter Bos, 60 anti-Black Pete activists were arrested and each fined €220 for demonstrating away from a location set aside for protesters and a further 30 supporters and opponents of Black Piet were arrested for disturbing public order.

Comment

Whilst the racist issues associated with Black Pete seem obvious to those outside the Netherlands, within the country there are issues not only on how to address them, but in acknowledging that there is a problem in the first place.  Recently the Washington Post commented:

“[w]hat’s curious is the incredulity of many Dutch people when asked to confront the apparent racism of their beloved Christmas-time figure. Here’s how a writer at Slate summed up the experience in 2011 . . . Trying to tell a Dutch person why this image disturbs you will often result in anger and frustration. Otherwise mature and liberal-minded adults may recoil from the topic and offer a rote list of reasons why Zwarte Piet should not offend anybody.”

The Amsterdam Mayor has said that it was not a matter of law, rather for the culture-at-large to decide, “the society makes traditions and traditions can also change.”  Echoing these sentiments, the Dutch Prime Minister Mark Rutte stressed the family nature of the event in Gouda and commented to Reuters “[p]ersonally, I think he can stay black.  But this is a matter for the community. It is not a task for politics”.

However, it is unrealistic to shrug off the involvement of law and politics so readily: without local or national leadership, it is difficult to see how “the community” might introduce meaningful changes; and it is possible those opposing Black Pete will follow up on the ruling of the Raad van State and bring the matter before the appropriate domestic court.

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[1] The Daily Telegraph reports:“[A] letter, on headed, official UN High Commission for Human Rights paper, was sent to the Dutch government expressing concerns over the tradition and accusing the authorities of failing to react to complaints of racial discrimination.”

[2] This is of particular significance when compared with the country’s total population of 17 million.

[3] Zwarte Piet is usually depicted by a white person performing in blackface with red lips, curly wigs and earrings and, historically, has been portrayed as unintelligent and servile. The St Nicholas Centre has provided a useful summary of the current controversy and how the character of Zwarte Piet has developed and changed over time. In November 2013, we reported that this had attracted the attention of UNESCO.

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Suggested citation: David Pocklington: ‘Politics, law and race: the Netherlands and ‘Black Pete’’ (Law & Religion UK 19 November 2014) (available at http://wp.me/p2e0q6-46c)

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