Case for open borders within the former Dutch Caribbean 

Lawyer Michiel Bijkerk, through his Gold Meand Society (GMS) foundation in Bo­naire, is pursuing the right to free inter-island migration. GMS is sponsoring a lawsuit that aims to open the borders between the is­lands for residents with Dutch na­tionality.

The case is based on the argument that all citizens with a Dutch pass­port are nationals of the Kingdom of the Netherlands, and that ev­eryone with Dutch nationality has equal rights. Just as the right of free establishment applies in every country to people who were born in that country, the same should apply to nationals of the Kingdom of the Netherlands, the lawyer argues. Bijkerk lost the case in the Court of First Instance on August 2. The judge ruled that the right to free es­tablishment only applies to people born in Bonaire, Saba or St. Eu­statius (the BES islands) for them to move and settle within BES. On behalf of GMS, Bijkerk filed for ap­peal.

Inhabitants of the Leeward Is­lands should be able to settle freely on the Windward Islands and vice versa, Bijkerk said. “We have al­ways known freedom of establishment throughout the Antil­les.”

The lawyer does not argue for return to the country of the Netherlands Antilles. “That’s neither possible nor wise,” Bijkerk said. “But each island has developed sufficiently in the meantime to be able to open the bor­ders again for the citizens of the other islands who have Dutch nationality.”

The distance between St. Maarteners, Sabans, Sta­tians, Bonaireans, Curacaoleneans and Arubans is purely geographical, ac­cording to Bijkerk. “Our islands have split up. Every island had its good reason for that. But the people on the other islands are not our enemies. On the contrary, many of them are even fam­ily or friends, good acquain­tances.” He also referred to shared mastery of national languages, working relations between the islands and shared history.

According to the lawyer, it was a big mistake to create borders between the islands. “Aruba was the first to make this mistake in 1986 by enact­ing a law stating that all citi­zens of the Netherlands and the other five islands must have a permit to live and work in Aruba.”

The other islands casually adopted this same mistake in 2010, Bijkerk said. He calls it “sad.” “From the year 1634 there were never boundar­ies between our islands. We have always known freedom of establishment throughout the Antilles. But mistakes are there to learn from, and then to correct our mistakes,” he argued. “However you look at it, the islands need each other.”

The lawyer invokes article 12 of the International Covenant on Civil and Political Rights. This Convention provides that every person has the right to return to his own country and within the borders of his own country he may settle wherever he pleases; everyone has the right of free settlement.

All persons with a Dutch passport are nationals of the Kingdom of the Netherlands, argues Bijkerk. “We are all citizens of the only interna­tionally recognised country called the Kingdom of the Netherlands. Therefore, the immigration laws that treat citizens of the other islands as aliens are contrary to Ar­ticle 12 of this Convention.”

The lawyer asks the court to declare these laws inappli­cable. This means that these laws may no longer be ap­plied against citizens of the other islands.

The reason for the lawsuit is the refusal of the Nether­lands to allow a woman with Dutch nationality in Bonaire. Van T allegedly violated the BES Admission and Expul­sion Act WtuBES and the BES Admission and Expul­sion Decree BtuBES. “In this case it is of principal impor­tance to emphasise that Mrs. Van T is not a ‘foreigner’ in the sense of the WtuBES and the BtuBES,” Bijkerk said.

He pointed out that the WtuBES defines a foreign national as anyone who does not have Dutch nationality. But Van T is Dutch, Bijkerk stressed. “Provisions in the WtuBES and BtuBES that refer to ‘foreigners’ there­fore do not apply to Mrs. Van T.”

In accordance with article 3, WtuBES issued a Declara­tion of Legal Admission and no alien residence permit, Bijkerk recalled. “A special residence status has been created for the Dutch. Their residence permit cannot be revoked; after all, they do not have one.”

He asked rhetorically: “We are not putting Dutch people in Immigration detention for a violation of the WtuBES, are we? Or are we planning to?”  If this is the intention of the authorities, he said, “then the situation is already a few degrees worse than we thought.”

More fundamentally, the defence is based on interna­tional human rights treaties that provide for the prohibi­tion of discrimination and the right of free establish­ment in one’s own country.

“It is obvious that based on art. la WtuBES Dutch citizens born within the BES islands are granted the privi­lege of free establishment in BES. By granting this to a small privileged group, the right to free settlement is granted to almost all other Dutch citizens, including Van T., remember. That is imper­missibly discriminatory,” Bi­jkerk stated.

According to the lawyer, the Netherlands is commit­ting a moral crime against its own citizens, including Euro­pean Dutch, and specifically against ex-Antillean Dutch.

“Never before has free inter-island migration led to insurmountable prob­lems. Then why suddenly after 2010 it would?” Bijkerk asked. “This is just discrimi­natory nonsense. The court is requested to ensure that we return to ‘common sense’.” The GMS foundation sup­ports the International Court of Justice, which has its seat in The Hague and is the prin­cipal judicial organ of the United Nations.

The Daily Herald.

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