156 C. SANDELOWSKY-BOSMAN AND T. LIEFAARD is required to take reasonable measures to protect the child claimants, even though they are located outside Dutch territory.109 The District Court furthermore emphasised that this does not mean that the Dutch Government should deploy executive authority in a third country. Rather it should use all reasonable measures at its disposal to protect these children, without infringing rules of public international law. If the Dutch Government fails to do so it would be acting unlawfully.110 In other words, the District Court concluded that the Dutch Government is bound to endeavour to repatriate the children, as far as can be reasonably expected in these circumstances, as it is not realistic to assume that the children’s protection can be guaranteed in another way. The District Court ruled that the lack of action in repatriating the children must end.111 It therefore sentenced the Dutch Government to engage actively in the repatriation of the children, insofar as possible.112 The Court of Appeal of The Hague overturned this ruling and denied the claim of the mothers and children.113 It agreed with the District Court that the rights of the UNCRC cannot be invoked directly against the Netherlands, as the Dutch Government lacks ‘authority’ and ‘effective control’ in Syria. The Court of Appeal did acknowledge that the Dutch Government can indirectly assert a ‘certain factual influence’ on the position of the children, but stated that this does not imply ‘jurisdiction’.114 That would imply an interpretation of ‘jurisdiction’ that would be too extensive, according to the Court of Appeal. It further held that, as far as these fundamental rights would be secured in Dutch law, the same argumentation applies; when there is no jurisdiction, the Dutch Government cannot safeguard these fundamental rights.115 Like the District Court, the Court of Appeal found the due diligence standard of Dutch tort law to be applicable (Dutch Civil Code Article 6:162). It argued that the assessment of compliance with that standard requires a balancing of interests. The justifiable interests that are protected by the fundamental rights of the UNCRC, which were not considered to apply directly, must be part of this balancing exercise.116 The Court of Appeal confirmed the District Court’s findings that the children due to the poor conditions in the camps, which may deteriorate even further. It furthermore found that the most fundamental interests of the children are at stake: life, survival, and development.117 The interests as brought forward by the Netherlands Government in the proceedings relate to (national) security and foreign affairs. The conduct of the Government in relation to these issues, as argued by the Court of Appeal, depends heavily on political considerations. The Dutch Government may use a wide margin of appreciation in these areas, which – according to the Court of Appeal – requires courts to display a high degree of 109 Ibid. 4.10. Ibid. Ibid. 4.11. 112 Ibid. 4.24. Note that the District Court ruled that the mothers or relatives of the child claimants do not have an independent claim to be repatriated based on the due diligence standard of Dutch Civil Code, art 6:162, amongst others, due to the fact that they deliberately left the Netherlands – despite efforts of the Netherlands to prevent them from doing so – to join a terrorist group: see para 4.16 and further (n 5). 113 Court of Appeal The Hague 2019 (n 31). 114 Ibid. 6.3. 115 Ibid. 6.4. 116 The Court of Appeal finds that the fact remains that, without jurisdiction, the Netherlands cannot safeguard the implementation of these rights: ibid. 7.2. 117 Ibid. 7.5. It is interesting to note that the Court of Appeal speaks about interests and not about the right to life, survival and developments (cf UNCRC, art 6). 110 111