Equal protection requires unequal measures: The BES Islands, climate change, and the Dutch constitution

Presentation Equal protection requires unequal measures: The BES Islands, climate change, and the Dutch constitution by Dr. Daphina Misiedjan (International Institute of Social Studies). 

Since 2010, the Caribbean public bodies Bonaire, St. Eustatius, and Saba (the BES islands) have been an integral part of the Dutch constitutional order as public entities or “special municipalities.” This status raises profound constitutional and policy questions, particularly regarding the relationship between legal equality and administrative differentiation. Against the backdrop of increasing climate risks for small islands, this presentation answers to what extent Article 132a of the Dutch Constitution allows or even obliges differentiated climate policy in favor of these islands.

The BES islands are significantly more vulnerable to the impacts of climate change than the European part of the Netherlands. Drought, sea-level rise, hurricanes, and water scarcity pose acute threats to ecosystems, livelihoods, and fundamental human rights, including the right to water and to a healthy environment. At the same time, there is a discrepancy in legal frameworks: the Dutch Climate Act and international climate treaties do not apply to the BES islands, and climate policy has so far been implemented only fragmentarily within the Caribbean part of the Kingdom. This gap in regulation and enforcement raises the question of whether the principle of equality in Dutch law might also mean that unequal circumstances call for unequal measures.

Daphina Misiedjan is assistant professor in human rights and the environment at International Institute of Social Studies (ISS), The Hague and 2020/2021 Fellow at The Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS). She is also an expert within the UN Harmony with Nature program