William Stanley Johnson v. Kingdom of the Netherlands

The author of the communication is William Stanley Johnson, a national of the Kingdom of the Netherlands born in 1953 who resides in the Caribbean Netherlands in Saba. He claims that the State Party has violated his rights under article 2 (1) and article 26 of the Covenant. The Optional Protocol entered into force for the Kingdom of the Netherlands on 11 March 1978. The author is represented by counsel.

The author resides in Saba, in the Caribbean Netherlands, an overseas territory of the Kingdom of the Netherlands with special status, where he was born and has lived for his entire life. This territory, made up of three islands, enjoys a specific constitutional status as established in the Charter for the Kingdom of the Netherlands adopted in 2010. In that year, the Netherlands Antilles dissolved and three islands⁴ out of the five, including Saba, became an integral part of the Kingdom of the Netherlands and are currently known as the Caribbean Netherlands.

4. Bonaire, Sint Eustatius and Saba. ↩

The author has been receiving an old-age pension since 10 October 2001 in accordance with the General Pension Insurance Ordinance, which was the relevant law applicable at the time in Saba. The pension had been administered by the government of the Netherlands Antilles. All citizens of the Netherlands Antilles were entitled to receive an oldage pension as of the age of 60.

As at 1 January 2011, after the dissolution of the Netherlands Antilles, the author received an old-age pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba as per the decision of the Minister of Social and Employment Affairs. The author alleges that the amount of the allowance ($524 at the time) is substantially lower than the amount of the old-age pension allowance in the European part of the Netherlands (€743.60 or approximately $1,076 at the time) under the General Pension Insurance Act. He notes that this amount does not even reach the minimum subsistence level on the island although the living costs are higher in the Caribbean Netherlands than in the European part of the Kingdom of the Netherlands.

On 23 August 2011, the author filed a notice of objection with the Minister of Social and Employment Affairs of the Netherlands, in which he requested to be paid a monthly pension equivalent to the amount paid to pensioners in the European part of the Kingdom of the Netherlands. On 9 December 2011, the author’s objection was rejected on the basis of article 1 (2) of the Charter for the Kingdom of the Netherlands, which provides for the possibility of setting up a specific legal framework in certain matters applicable only in the Caribbean islands.

On 17 January 2012, the author submitted an application for judicial review to the Court of First Instance of Bonaire, Sint Eustatius and Saba. On 12 March 2014, the Court rejected the author’s application. In its decision, the Court made reference to the explanatory memorandum of the Kingdom Act amending the Charter, which set out that, in view of the factors that differentiate the islands from the European Netherlands, it was a matter of constant concern of the government of the Netherlands, in close cooperation with the administration of those islands, to make sure that a social level that was acceptable within the Netherlands should be reached, especially in the fields of education, public health, social security and national security, and that, in that connection the specific local circumstances on the island should, of course, be taken into account, but in conformity with article 1 of the Constitution of the Netherlands. As regards the purpose of such differentiation, the Court accepted that the legislator intended to prevent disruption, taking into account the competitiveness of the islands and their investment climate. The Court made reference to the broad margin of appreciation the State Party has when organizing its social security regime. It further referred to the governmental agreements to keep in effect those laws of Bonaire, Sint Eustatius and Saba in force at the time of the transition for a period of five years. The Court deemed it of importance that the efforts of the legislator were directed towards the gradual introduction of the legislation of the European Netherlands on the islands. The Court made reference to the parliamentary documents from which it appeared that it had been an intentional decision not to introduce a social level equivalent to the level in the European Netherlands, which would attract illegal migration. The Court further noted that both the oldage pension of Bonaire, Sint Eustatius and Saba and the old-age pension for the European Netherlands were aimed at guaranteeing a pension as a basic provision, and pensioners were expected to take out extra pension insurance or to generate extra income by arranging supplementary pension provision. The Court concluded that the aim pursued with the oldage pension of Bonaire, Sint Eustatius and Saba and the old-age pension of the European Netherlands did not differ. It also noted that, whereas the old-age pension of Bonaire, Sint Eustatius and Saba was set in accordance with the consumer price index figures, the old-age pension of the European Netherlands was based on the minimum wage. The Court further looked at the data provided by the author regarding the amount of the minimum wage and the old-age pension on the islands compared to the European part of the Netherlands and concluded that, proportionally, the difference between the minimum wage in force on the islands (€598) and the pension amount based on the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba (€430 for single persons or €860 for couples) was in fact more favourable for pensioners in comparison to the difference between the minimum wage (€1,456) and the old-age pension (€1,064 for singles or €1,483 for couples) in the European part of the Netherlands. The Court considered that the intended argument of the author that the minimum wage for Bonaire, Sint Eustatius and Saba was too low fell outside the scope of the case.

On 10 April 2014, the author lodged an appeal with the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba. On 15 December 2014, the Joint Court upheld the decision of the Court of First Instance, holding that an objective and reasonable justification had been given for the difference of treatment in question. The Joint Court considered that it was not the territorial origin but rather the pensioners’ residency, and their contribution to the public funds from which the old-age pension was financed, that was decisive as regarded the scope of the disputed laws. The Joint Court did not consider that differential treatment on those grounds should be considered to have been made indirectly on the ground of ethnicity. The Joint Court further concurred with the Court of First Instance regarding its finding in relation to the aims pursued with the old-age pension of Bonaire, Sint Eustatius and Saba. It made reference to the information that, in the European part of the Netherlands, contribution to public funds amounted to approximately 25 per cent of a person’s income, whereas on the islands, the public treasury funded the old-age pension. As to the author’s argument that his pension was below the minimum subsistence level, the Joint Court referred to article 11 of the International Covenant on Economic, Social and Cultural Rights, which fell outside of the scope of article 94 of the Constitution of the Kingdom of the Netherlands, and noted that, in any event, none of the laws in question purported to guarantee a subsistence level to pensioners.

The author submits that no other domestic remedies are available.

The author claims that the State Party has violated his rights under article 2 (1) and 26 of the International Covenant on Civil and Political Rights by granting pensioners residing in the Caribbean Netherlands, including Saba, an old-age pension that is substantially lower than the old-age pension granted to pensioners residing in the European part of the Netherlands. He submits that article 26 of the Covenant does not allow States Parties to maintain two different welfare regimes in different parts of its territory. Such a distinction constitutes discrimination on the grounds of ethnic origin and residency. He notes that Dutch citizens of Dutch Caribbean origin belong to the ethnic and cultural group of Antilleans. They are labelled as “allochtons” in the continental Netherlands and are often discriminated against by their fellow citizens. Although it is true that residents of the three islands have their own racial and linguistic characteristics, the fact that they may not be identified as a single ethnic group (but three) does not rule out the existence of discrimination, as the Joint Court of Justice had erroneously argued. In support of his claim, the author refers to the concluding observations of the Committee on Economic, Social and Cultural Rights of 19 November 2010, in which the Committee stressed the obligation for the State Party to ensure that all its enactments and policies should provide for all the same level of enjoyment of economic, social and cultural rights and the principle of “maximum available resources” should apply to the State Party and not to its constituent countries individually.⁵

5. E/C.12/NDL/CO/4-5, para. 5. ↩

Furthermore, the author disputes the position of the Court of First Instance, endorsed by the State Party, that the disputed difference in treatment was justified by legitimate aims, notably: (a) to keep the welfare provision at a level “suitable for the region” in order to prevent an influx of immigrants to the island; (b) to prevent “economic disruption”; (c) to prevent weakening the competitiveness of the island’s business sector’s competitiveness; and (d) to avoid having to raise taxes on the island. The author notes in this respect that the aim of avoiding an influx of South American migrants to the island is not a legitimate aim but is more a fear on the part of the State Party. Moreover, the number of migrants has also significantly increased in the continental Netherlands, which did not lead to the reduction of the allowance of old-age pensioners in order to make the welfare system less appealing. As regards the alleged disruption of the economy of the Caribbean Netherlands, the author notes that this argument rests on a false premise. In fact, the equalization of old-age pension allowances in the Caribbean Netherlands would inject approximately $27 million per year into its economy at minimal cost to the taxpayers. He claims that, if the burden of the additional contributions required to ensure equalization of the pensions were shared between the taxpayers in the European part of the Netherlands and the Caribbean Netherlands, each contributor would only need to pay around $0.37 more than before. Consequently, taxes would not have to be raised. The author further notes that, in any event, since 2010, the economy of the Caribbean Netherlands has not been independent from the European part of the Netherlands, therefore the alleged aims pursued to prevent an economic threat to the island alone do not hold true. Such a position erroneously suggests that the Caribbean and the European Netherlands are two separate constitutional entities, which interpretation contradicts the provisions of the Charter for the Kingdom of the Netherlands.

Lastly, the author submits that old-age pensions are financed from premium contributions levied on the working population of the State Party and from other sources of public funds. Since 2010, the working population of the Caribbean Netherlands pays such premiums directly to the government of the Netherlands, which are then redistributed among the old-age pensioners of the islands. Furthermore, the latter also pay income tax and other forms of taxes directly to the government of the Netherlands. Consequently, they have a fair part in bearing the burden of contributions payable to the public funds and the present complaint is not an effort to take advantage of the prosperous welfare system of the European part of the Netherlands.

On 15 June 2018, the State Party submitted its observations on admissibility and the merits. As to the issue of admissibility, the State Party holds that article 2 is not applicable to the present case because the Covenant does not provide for the right to an adequate pension. It does not contest, however, that the complaint is admissible under article 26 of the Covenant but asserts that the author’s claims are without merit for the reasons explained below.

Regarding the constitutional status of Saba, the State Party notes that, until 10 October 2010, the Kingdom of the Netherlands consisted of three countries: the Netherlands Antilles (Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba), Aruba and the Netherlands. Since 10 October 2010, the Kingdom has consisted of four countries: Aruba, Curaçao, Sint Maarten and the Netherlands. The islands of Bonaire, Sint Eustatius and Saba are now part of the Netherlands, which consists of the Caribbean part and the European part. Therefore, the islands of Bonaire, Sint Eustatius and Saba became part of the Netherlands on 10 October 2010. They have the status of public entities pursuant to article 134 of the Constitution of the Kingdom of the Netherlands. Their status is broadly similar to that of Dutch municipalities. The State Party recalls that article 1 (2) of the Charter for the Kingdom of the Netherlands states that rules may be laid down and other specific measures may be taken in view of special circumstances that fundamentally distinguish these public entities from the European part of the Netherlands.⁶

6. This clause has been rescinded and is now included in article 132a (4) of the Constitution of the Kingdom of the Netherlands. ↩

The State Party notes that at the time of the constitutional change, a decision was made to retain the social security system of Bonaire, Sint Eustatius and Saba in order to prevent them from being confronted with major legislative changes. This was laid down in administrative agreements with the authorities of Bonaire, Sint Eustatius and Saba before the transition and extended to the provisions of the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba applicable on those islands and the General Pension Insurance Act applicable in the European part of the Netherlands.

Regarding the differences between the two systems, the State Party notes that the retirement age in the Caribbean Netherlands is 65 years of age and no increase is expected in the near future, whereas in the European part of the Kingdom of the Netherlands the pension age is being increased gradually from 65 years to 67 years of age by 2021. Furthermore, both pensions are calculated on the basis of the minimum wage applicable in the corresponding part of the Netherlands. In addition, while the amount of the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba pension does not depend on civil status and represents 70 per cent of the minimum wage, in the European part of the Kingdom of the Netherlands pensioners receive only 50 per cent of the net minimum wage if they are married compared to single persons who receive 70 per cent of the net minimum wage. In the European part of the Kingdom of the Netherlands, before 1 January 2015, pensioners were entitled to a partner allowance if they had a younger partner with a low income or no income at all. This was abolished in 2015, although income support of €24.93 is paid on a monthly basis. Furthermore, beneficiaries receive a holiday allowance in May. In the Caribbean Netherlands, there is a cost-of-living allowance supplementing the pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba, which is linked to the level of prices on the islands, and pensioners are also entitled to a Christmas allowance. A partner allowance may also be granted if the pensioner’s partner has not yet reached the retirement age, provided that the couple’s income does not exceed a certain amount.

Regarding the alleged violation of article 26 of the Covenant, it is submitted that, although States Parties are not required to enact legislation to provide for social security, if the State Party enacts such a law, it must comply with article 26 of the Covenant.⁷ The State Party confirms that the amounts of old-age pension granted under General Pension Insurance Act of Bonaire, Sint Eustatius and Saba and old-age pension of the European Netherlands are indeed different. However, as explained above, these old-age pensions cannot be compared because there are major differences in the socioeconomic situation and legislative framework of the respective parts of the Netherlands. As explained above, both allowances are linked to the local minimum wage, which is lower in the Caribbean Netherlands for economic reasons, which difference is understandably reflected in the amount of the allowances. Apart from the differences mentioned above, the State Party notes that no tax is deducted from the pension provided under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba, while old-age pensioners in the European part of the Netherlands are subject to taxation. Furthermore, contributions in the islands are lower than those in the European part of the Netherlands. Other differences that favour the pension beneficiaries in Saba include the existence of the allowance for partners and the extra cost-of-living allowance. The State Party further notes that the author has been receiving a pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba since 2001 when the minimum pension age in Saba was 60 years of age. In contrast, in the European part of the Netherlands, he would have been entitled to a State pension only from the age of 65. The State Party further notes that the pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba does enable its recipients to provide for themselves. For those who are unable to do so, there is a safety net made up of various payments and allowances. Lastly, the amount of the pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba is linked to the consumer price index and, in addition to an adjustment for inflation, pensioners in Saba have received a policy-based pension increase of over 18 per cent since 2013.

7. The State Party refers to Broeks v. the Netherlands, communication No. 172/1984, para. 12.4. ↩

In view of the foregoing, the State Party deems that the difference in question in the amount of the old-age pensions does not constitute discrimination because pensioners of Bonaire, Sint Eustatius and Saba and those of the European part of the Netherlands are not in comparable situations and do not require equal treatment. The differentiation is based on reasonable and objective criteria. The State Party further underlines that the legislature enjoys a broad margin of appreciation regarding its socioeconomic policies. It refers to the judgment of the European Court of Human Rights in Andrejeva v. Latvia,⁸ in which the Court ruled that a difference in treatment may be justified by the need to protect the respective country’s economic system. It repeats that the disputed difference in treatment aims to prevent economic disruption with due regard to the competitiveness of the islands and the business climate in the region. Higher pensions would attract people to the islands, which is not desirable. The State Party therefore concludes that there has been no violation of the author’s rights under articles 2 and 26 of the Covenant.

8. European Court of Human Rights, Andrejeva v. Latvia, Application No. 55707/00, Judgment, 18 February 2009. ↩

On 27 September 2018, the author submitted his comments on the State Party’s observations.

The author repeats that the State Party’s arguments rest on the false premise that Bonaire, Sint Eustatius and Saba, constitutionally speaking, are separate from the European part of the Netherlands. Indeed, by integrating Bonaire, Sint Eustatius and Saba into the Netherlands in 2010, the State Party assumed full responsibility for the social and economic development of the islands. The author adds that Bonaire, Sint Eustatius and Saba have no separate economy given that at least 85 per cent of tax revenues collected on the islands flow directly into the budget of the Netherlands in The Hague. Furthermore, Bonaire, Sint Eustatius and Saba no longer have separate legislative powers. Acts of higher hierarchy such as the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba, which is at the heart of the present complaint, are adopted by the Parliament of the Netherlands. In this respect, the author notes that, even though social and economic circumstances do indeed differ between the respective parts of the State Party, it is precisely the responsibility of the State Party to eliminate such differences, which should not be used as an excuse for leaving behind the Caribbean Netherlands. Furthermore, the administrative governmental agreements cited should not create obstacles to eliminating differences, because these agreements are not sufficiently specific and have not been enacted by law. In any event, the authorities of the Netherlands applied undue influence on the politicians of Bonaire, Sint Eustatius and Saba, who were not on an equal footing with the authorities, so the agreements should be considered null and void.

The author further submits that, contrary to what the State Party argues, the situation of old-age pensioners in the European part of the Netherlands and in Bonaire, Sint Eustatius and Saba is essentially the same. They have the same expenditures and needs (rent, alimentation, transportation, etc.) and they are therefore in a comparable situation. As regards the rest of the alleged differences, the author submits that, although it is true that the pension age is two years lower in the Caribbean Netherlands, this properly reflects the difference in life expectancy. Furthermore, the State Party’s argument that the minimum wage is lower in the Caribbean Netherlands, which is duly reflected in the amount of old-age pension, is misleading.⁹ This argument would only be convincing if the social minimum was also substantially lower in the Caribbean Netherlands, or to put it differently, if the minimum wage corresponded to the social minimum on the islands. However, the minimum wage is in fact far below the social minimum on the islands, whereas in the European part of the Netherlands the minimum wage is above the social minimum.¹⁰ Since the social minimum was not taken into account to the same extent in all parts of the State Party’s territory when the respective minimum wages were set, the State Party’s explanation for the difference in minimum wage cannot justify the differentiation in terms of the pension allowances.

9. Minimum wage in the continental Netherlands in 2018: €1,578 (approx. $1,862) compared with $984 on Saba. ↩
10. The author submits that the social minimum in the continental Netherlands in 2018 was €997 (approx. $1,176) for single persons and €1,424 for couples ($1,680) compared with $1,537 for single persons and $2,065 for couples. Figures taken from Regioplan survey, published in June 2018. ↩

The author further notes that the State Party failed to provide evidence that the premiums to be paid are indeed higher in the European part of the Netherlands. Even if this argument holds true, the State Party has the power to change this regulation instead of using it as an excuse for not equalizing the pensions.

Lastly, the author notes that, in response to the Regioplan survey, the State Party has announced some practical measures to be taken in order to address the anomalies detected as regards the social and economic rights of the residents of Bonaire, Sint Eustatius and Saba. Accordingly, the State Party has pledged to grant an allowance on top of the pension under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba for single persons as of 1 January 2020. Although the author welcomes the plan of action, he notes that it remains vague. As long as no action is taken, he wishes to maintain his complaint before the Committee.

As regards the allegedly legitimate aims cited by the State Party in its observations, the author refers back to his arguments presented in his initial complaint that refute the lawfulness of such aims.

In view of the foregoing, the author is of the position that he has been subjected to differential treatment by the State Party, which has not been justified on objective and reasonable grounds.

On 4 December 2018, the State Party submitted additional observations on the merits of the complaint.

The State Party contests the claim that, constitutionally, there is no distinction between the Caribbean and the European parts of the Netherlands. It refers back to article 132a (4) of the Constitution, which allows for specific measures to be taken precisely in view of special circumstances that fundamentally distinguish Bonaire, Sint Eustatius and Saba from the European Netherlands. As an example, the State Party refers to section 209 of the Public Bodies Act, which requires the government of the Netherlands to consult the public bodies in the Caribbean part of the Kingdom when drafting certain types of legislation and policy frameworks that relate exclusively to public bodies. The State Party further contests the claim that there is no separate economy in the Caribbean and the European parts of the Netherlands. Trade flows, the movement of workers and transport links on and between the islands show that the Caribbean part is located in a different environment and the structure of its pension system must be viewed in this distinct socioeconomic context.

Lastly, the State Party notes that, although it is striving to improve socioeconomic security for the residents of the Caribbean Netherlands, the limits of the economy of Bonaire, Sint Eustatius and Saba, and their capacity to put changes in place, need to be taken into account in the process. These improvements cannot be achieved at once.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s claim that he has exhausted all effective domestic remedies available to him. In the absence of any objection by the State Party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

Regarding the author’s claim under article 2 of the Covenant, the Committee notes the State Party’s position that it is not applicable to the present case because the Covenant does not provide for the right to an adequate pension. The Committee recalls that article 2 can be invoked by individuals only in conjunction with other articles of the Covenant and cannot, in and of itself, give rise to a claim under the Optional Protocol.¹¹ Accordingly, the Committee considers that it is precluded from examining this part of the communication for lack of sufficient substantiation pursuant to article 2 of the Optional Protocol.

11. See, e.g., X v. Norway (CCPR/C/115/D/2474/2014), para. 6.3. ↩

The Committee considers that the author’s allegations under article 26 of the Covenant have been sufficiently substantiated for the purposes of admissibility and proceeds with their consideration on the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, as required under article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim under article 26 of the Covenant that it is wrongful that the old-age pension of $524 granted to him as a resident of the Saba island under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba is not equivalent to the pension granted to residents of the European Netherlands under the General Pension Insurance Act. He argues that he is in a comparable situation to pensioners residing in the European part of the Netherlands and that he has been treated unequally on the basis of his place of residence and ethnicity, without the State Party providing any objective and reasonable justification for such differential treatment.

On the other hand, the Committee notes the State Party’s position that the pensions granted under the cited legislation applicable in the Caribbean and the European parts of the Netherlands cannot be compared, owing to differences in the regional and economic situations of these territories. The State Party further refers to a number of differences between the pensions granted under the General Pension Insurance Act of the Netherlands and the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba, such as the basis for their calculation, the extra allowances with which they may be supplemented, whether they are subject to taxation, the source of their funding and the contributions thereto.

The Committee recalls that the right to social security is not protected by the Covenant and considers that it is thus not competent ratione materiae to consider any alleged violations of that right pursuant to articles 2 and 3 of the Optional Protocol. However, when domestic laws provide for a social security system that includes a pension, it could indeed entail a breach of the Covenant if the relevant legislation or its application is based on discriminatory grounds in violation of article 26 of the Covenant.¹²

12. Broeks v. the Netherlands, para. 12.4. See also Human Rights Committee, general comment No. 18 (1989). ↩

In its assessment, the Committee reiterates its jurisprudence that not all differentiation in treatment can be deemed to be discriminatory under article 26 of the Covenant. A differentiation that is compatible with the provisions of the Covenant and based on objective and reasonable grounds does not amount to prohibited discrimination within the meaning of article 26.¹³ Furthermore, any determination about discrimination requires a comparison with persons who are similarly situated. In the Committee’s view, determining whether the situations of the old-age pensioners in the two categories are de facto the same or different requires an assessment of the facts, which is a matter for the domestic courts.¹⁴ In the Committee’s opinion, the information brought before it does not reveal that the author is in a situation that is similar de facto to that of the old-age pensioners under the personal scope of the General Pension Insurance Act applicable in the European Netherlands, which would justify his argument that he is entitled to an equal old-age pension allowance.

13. See, e.g., Jünglingová v. Czech Republic (CCPR/C/103/D/1563/2007), para. 7.2. ↩
14. See, e.g., Castell-Ruiz et al. v. Spain (CCPR/C/86/D/1164/2003), para. 7.2. ↩

The Committee observes in this connection that, in the constituent parts of the Kingdom of the Netherlands, there is not always a uniform approach to legislation in certain areas as set out in article 132a (4) of the Constitution. Whether or not the author can claim a right derived from legislation may accordingly depend on the geographical scope of the law in question and the author’s location at the time. For the Committee, insofar as there exists a difference in treatment of old-age pensioners under the General Pension Insurance Act of the Netherlands and under the General Pension Insurance Act of Bonaire, Sint Eustatius and Saba, that difference is not to be explained in terms of personal characteristics, such as ethnicity, but in terms of the place of residency. This permits legislation to duly consider regional differences and characteristics of an objective and reasonable nature. In addition, it is hard to draw any genuine comparison between the positions of pensioners living in the Caribbean and those in the European part of the Netherlands in view of the range of economic and social factors applying to these areas. Thus, the value of the pension may be affected by any one or a combination of differences in, for example, inflation and exchange rates, comparative costs of living, statutory retirement age, basis for and other constituent parts of the old-age pension allowance, economic growth, social security arrangements and taxation systems.

The Committee further underlines the complexity of the issue at stake and takes note of the detailed analysis of the domestic courts as to the lawfulness of the laws in question. The Committee reiterates that it is generally for the courts of States Parties to the Covenant to review the facts and evidence or the application of domestic legislation in a particular case, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice.¹⁵ This holds particularly true when it comes to general measures of economic or social strategy and complex macroeconomic issues.

15. See, e.g., Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3. ↩

The Committee therefore considers that the current constitutional status of the author’s place of residence alone, as established in the Charter for the Kingdom of the Netherlands in 2010, is not sufficient to place the author in a position of relevant similarity to all other pensioners living in the European Netherlands. With due regard to the abovementioned circumstances, any apparent difference in treatment had, in any event, been objectively and reasonably justified.

In the light of the above, the Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it do not reveal a violation of article 26 of the Covenant.

I am not in agreement with the Committee’s finding of a non-violation of article 26 of the Covenant (para. 9 of the Committee’s Views). In my view, the State Party has not adequately addressed the inequality in the amount of old-age pension received by pensioners in the Caribbean and the European parts of the Kingdom of the Netherlands, which negatively affects the author. While some of these differences can be explained objectively, the general situation and that of the author demonstrate that the State Party’s obligation to ensure substantive equality under article 26 has not been upheld in the case at hand. After recalling briefly some facts and explaining the position of the Committee with regard to article 26, I provide my arguments concerning the violation of article 26.

The population of the Caribbean Netherlands, composed of Bonaire, Sint Eustatius, and Saba, is about 27,000.¹⁶ The State Party notes that, at the time of the constitutional change, a decision was made to retain the social security system of Bonaire, Sint Eustatius and Saba in order to prevent them from being confronted with major legislative changes (para. 4.3).

16. As at 1 January 2021, there were 1,918 residents in Saba, 3,142 residents in Sint Eustatius and 21,745 residents in Bonaire, for a total of 26,805 individuals. Statistics and data retrieved from the national statistical office, Statistics Netherlands, available at www.cbs.nl/en-gb. ↩

The principles of equality and non-discrimination are an essential part of the Covenant, embedded in several of its provisions. Article 26 provides for an autonomous right, prohibiting discrimination in law or in fact in any field regulated and protected by public authorities.¹⁷ The practice of the Committee with regard to article 26 is quite extensive.¹⁸ As the Committee has pointed out, besides prohibiting any discrimination under the law and guaranteeing to all persons equal and effective protection against discrimination on any ground,¹⁹ the principle of equality sometimes requires States Parties to take affirmative action in order to diminish or eliminate conditions that cause or help to perpetuate discrimination prohibited by the Covenant.²⁰

17. See general comment No. 18 (1989) on non-discrimination, para. 12. ↩
18. See, among others, William A. Schabas, Nowak’s CCPR Commentary, 3rd revised ed. (N.P. Engel, 2019), pp. 738–794. ↩
19. General comment No. 18 (1989), para. 1. ↩
20. Ibid., para. 10. ↩

While I agree with the State Party that the legislature enjoys a broad margin of appreciation regarding its socioeconomic policies and social security (para. 4.6 of the Committee’s decision),²¹ the aim of those policies and measures have to reflect closely the principles of equality and non-discrimination. While article 132a of the Constitution of the Kingdom of the Netherlands allows for establishing rules and taking other specific measures in view of special circumstances that fundamentally distinguish the public bodies that constitute the Caribbean part of the Netherlands from the European part of the Kingdom of the Netherlands, this article has to be read in light of article 1, in which equality and nondiscrimination are emphasized, and article 20, which concerns social security and the distribution of wealth within the country.

21. European Court of Human Rights, Andrejeva v. Latvia, Application No. 55707/00, Judgment, 18 February 2009, paras. 82–91, at paras. 83 and 89. There the Court found a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). ↩

While assessing complex macroeconomic issues is a rather difficult exercise, the Committee’s analysis is extremely scant and does not stand close scrutiny. The legal test laid down in the Committee’s practice is quite stringent, namely that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.²² The differentiation applied is not reasonable on at least two grounds. First, it follows the State Party’s considerations of not disrupting the competitive position and business environment in Bonaire, Sint Eustatius and Saba, when – as a pensioner – the author is not expected to participate in the labour market. Second, the use of the minimum wage as baseline for setting the level of pension in both parts of the Netherlands, notwithstanding the stark difference between them – €598 (in Bonaire, Sint Eustatius and Saba) compared with €1,456 (European Netherlands), the latter being some 2.5 times higher (about 245 per cent higher) – even with the correction applied by the State Party (para. 2.5 of the Committee’s decision), has resulted in much lower pensions for Bonaire, Sint Eustatius and Saba residents, including the author, while they are integrated within the Netherlands, often facing higher living expenses. Inequality has been perpetuated under the guise of fairness.

22. General comment No. 18 (1989), para. 13 (emphasis added). ↩

In addressing the situation in the State Party, the Committee on Economic, Social and Cultural Rights has noted, “all its enactments and policies should provide for all the same level of enjoyment of economic, social and cultural rights. Moreover, the principle of ‘maximum available resources’ should apply to the State Party and not to its constituent countries individually”.²³ In a September 2019 report, the National Ombudsman addressed the difficult situation of older persons (pensioners), expressing serious concern about the pace and the manner in which the measures taken by the State authorities were being implemented.²⁴ The National Ombudsman recommended that the reports and insights of the Netherlands Court of Audits, the Netherlands Institute for Human Rights, the advisory department of the Netherlands Council of State and the National Ombudsman should all be used to address the situation.²⁵ The State Party should heed this advice without any further delay.

23. E/C.12/NDL/CO/4-5, para. 5. See also Committee on Economic, Social and Cultural Rights, general comments No. 6 (1995) on the economic, social and cultural rights of older persons and No. 19 (2007) on the right to social security. ↩
24. National Ombudsman, “Focus on the elderly in the Caribbean Netherlands: a study of poverty-related problems of those entitled to AOV who live on or below the poverty threshold in the Caribbean Netherlands”, September 2019, p. 26. Available at www.nationaleombudsman.nl. ↩
25. Ibid., p. 27. ↩

While the purported aim of measures forming part of the constitutional transition of 2010 was to achieve in the Caribbean Netherlands a level of social security that was acceptable within the European Netherlands, this aim has not been achieved by the State Party after more than a decade. While the State Party has taken some steps over the years to remedy existing inequalities when it comes to social security, its measures have fallen short of securing an acceptable level of facilities (aanvaardbaar voorzieningenniveau).

Based on the above-mentioned considerations, I consider that the State Party has violated article 26 of the Covenant, on grounds of the author’s residency.