148 C. SANDELOWSKY-BOSMAN AND T. LIEFAARD the various forms of jurisdiction: enforcement, legislative and adjudicatory.53 The Dutch Minister appears to be particularly concerned with enforcement jurisdiction, but this overlooks the fact that by choosing passive policy, the Dutch Government – presumably aware of the right to return (UNCRC, art 10(1))54 of these children given their ties to the Netherlands – has in fact exercised legislative jurisdiction, or at a minimum influenced the legal position of these children. By adhering to this policy, the government makes the chances that the children can find their way to the Netherlands on their own means slim, given their limited freedom of movement,55 and difficulties in proving their nationality.56 It can even be argued that the Dutch Government, through its passive policy and narrow interpretation of jurisdiction, abets a situation in which children with ties to the Netherlands are exposed to risks to their lives, risks not directly caused by the Dutch Government (and not easily averted), but which it could minimize; for example, by revising its passive policy and assisting them in proving their nationality or accepting the aid offered by the Kurds, the United States, and the Red Cross in repatriating the children.57 The repatriation of the two orphans in the Summer of 2019, as well as cases of repatriation by other countries of their nationals,58 show that it is not impossible to assist children return to the Netherlands.59 Finally, if the Syrian, Turkish and Iraqi governments cannot or do not want to take responsibility for these (foreign) children within their territories, and Dutch jurisdiction is not obvious, the children are relegated to a legal void in which no State Party to the UNCRC bears any legal responsibility towards them. It thus seems flawed to disregard these circumstances and only take enforcement jurisdiction as a decisive basis for assuming no jurisdiction pursuant to Article 2(1) UNCRC.60 The term jurisdiction in jurisdiction clauses (e.g. Article 2(1) UNCRC) is not restricted to the (territorial) notion of enforcement jurisdiction. According to Bhuta, at the inception of human rights, the Westphalian international system was taken for granted.61 This is a system of independent states refraining from interference in each other’s domestic affairs, devised nearly four centuries ago at a peace conference in Westphalia.62 State jurisdiction in the Westphalian system was supposed to be a territorial affair only.63 Despite this, according to Bhuta, it was not ruled out that human rights could apply extraterritorially. Bhuta gives the drafting debate of the International Covenant on Civil and Political Rights as an example of this. The drafting debate of the jurisdiction clause of that Covenant was 53 Lefeber and Ribbelink (n 52). Regarding adjudicatory jurisdiction, see e.g. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, art 4(2) and (3). 54 See section 4.2 hereunder. 55 See section 2.2 above. 56 See section 2.3 above. 57 Court of Appeal The Hague 2019 (n 31). 58 Broches (n 12). 59 Ana van Es and Hassan Bahara, ‘Nederland haalt twee kinderen op van IS-strijders terug uit Syrië vanwege ‘erbarmelijke omstandigheden’ De Volkskrant (Amsterdam, 10 June 2019). 60 See also Maarten den Heijer and Rick Lawson, ‘Extraterritorial Human Rights and the Concept of “Jurisdiction”’ in Vandenhole and others, Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (Cambridge University Press 2013) 157, who argue that where a State Party acts outside the limits of its jurisdiction, the applicability of the human rights regime does not depend on the legitimacy of these actions, but on the actual context. What counts is the connection between the individual whose rights were violated through this action and the State Party in question, and whether this was sufficiently close to oblige the State Party to safeguard the rights of the individual. 61 Nehal Bhuta, ‘The Frontiers of Extraterritoriality: Human Rights Law as Global Law’ in Nehal Bhuta (ed), The Frontiers of Human Rights. Extraterritoriality and its Challenges (Oxford University Press 2017) 2. 62 Henry Kissinger, World Order (New York 2014). 63 Ibid. 3.