70 years Charter for the Kingdom: Perspectives for a brighter future

Your Excellency’s, ladies and gentlemen, good evening,

Let me start by expressing my gratitude to the University of Sint Maarten and the Council of Advice. You are offering me the opportunity to deliver a lecture on our Kingdom, which in December celebrated the 70th anniversary of its Charter, het Statuut voor het Koninkrijk. I have had the opportunity to give lectures in various positions in the Dutch Caribbean, but never at this university. You understand that a cherished wish has been fulfilled. Thank you so much!

I would also like to thank all of you here for spending your Monday evening with me. It is not every day that I get to address such an esteemed gathering: Governor, Prime Minister, ministers, members of parliament and of the Council of Advice and so many others. I feel honoured by such an esteemed audience.

Let me briefly touch on my connection with the Dutch Caribbean for a very long time. As a member of Dutch Parliament in the 1990s, I was already involved in Netherlands-Antillean and Aruban affairs, as it was called then, later also as member of the Dutch Tweede Kamer and political leader of my party, as chairman of the standing parliamentary committee and delegation leader to what was then called the Contact Plan, nowadays the IPKO. In the Balkenende II cabinet, as Deputy Prime Minister, I was responsible for the Kingdom Relations portfolio in addition to constitutional affairs, administrative renewal and urban policy. A rewarding assignment, because there was plenty to do. And there still is! I clearly remember discussions almost twenty-five years ago with the then political leader of Sint Maarten and nowadays still active as president of parliament, Sarah Wescot-Willams about a ‘status aparte’ for Sint Maarten. Together with the prime minister of the Netherlands-Antilles, Etienne Ys, I toke the first steps in the direction of what later became the new structure of the Caribbean part of the Kingdom, known as 10-10-10.

And from 2011 until my appointment as vice-president of the Council of State in 2018 I acted as member and vice-chair of the committee for Kingdom-relations in the Dutch Senate. Let me put it like this: there is some proof of my long-time passionate involvement!

This evening, I would like to do four things. First I would like to briefly reflect on the history and structure of our Kingdom, and not just since 2010. Secondly I would like to go briefly into the position and function of the Council of State of the Kingdom. Thirdly I want to touch on some of the highlights from the advice the Council gave to the Kingdom government almost half a year ago and last but not least I will reflect on the reactions towards our advice so far.

Before that all I would like to take the opportunity to express before this distinguished gathering my sincere and warm gratitude to the state councillor of the Kingdom for Sint Maarten, Maria Plantz for here great services to the Council, to the Kingdom and to Sint Maarten. This evening is the very last evening of her mandate, which according to law ends because of her retirement at the age of seventy, after a very fruitful period of six and a half year. Maria, you did a fine job and you will be missed in The Hague, thank you!

Kingdom history

The Kingdom Charter is 70 years young, but Sint Maarten’s ties with the Netherlands go back much further, of course. The Dutch built a fortress (Fort Amsterdam) on the island in 1631. Jan van Campen became its first governor and the Dutch West India Company began mining salt on the island. Tensions between the Netherlands and Spain were already high due to the ongoing Eighty Years' War, and in 1633 the Spanish captured St Martin and drove off the Dutch colonists. The Dutch under Peter Stuyvesant attempted to take back control in 1644, but failed. However, in 1648 the Eighty Years' War ended and the Spanish, no longer seeing strategic or economic value in the island, simply abandoned it.

With Saint Martin unoccupied again, both the Dutch and the French wanted to re-establish their settlements. Dutch colonists mostly came from Golden Rock Statia, while the French mostly came from St. Kitts. After some initial conflict, both sides realized that neither would win easily. Preferring to avoid an all-out war, they signed the Treaty of Concordia in 1648, which since then in a very colonial way divided the island in two.

The following centuries were mainly characterised by domination, patronage and inequality, although of course at the same time there was also some development and eventually emancipation. The year when the Charter of the Kingdom was signed – 1954 – was not the end of emancipation and it was not the beginning. Nevertheless in 1954 an important step was set towards a more grown up relationship.

The Kingdom and its Charter are, of course, results of the colonial past. During that colonial period, most of the Netherlands' attention was focused on the East Indies, now the Republic of Indonesia, the most important colony in terms of size of territory and population and in terms of economic output. Colonial policy towards the West Indies (the Caribbean islands and Suriname) long remained uninspired and inactive. Non-existent may be putting it a bit too heavily, but it came close to that.

Suriname was developed as a plantation colony, but the six Dutch Caribbean islands lent themselves less to this because of their natural conditions. Salt was produced in Bonaire, Curacao and Sint Maarten (almost on the spot where we are tonight). Curacao and Statia also had an important role in the 18th century as a trade and smuggling hub in the region and between the New and Old World. Until fairly recently, little thought was given to what was being traded and smuggled: everything, including hundreds of thousands enslaved human beings.

Many in the European Netherlands for many years seemed to neglect this knowledge, perhaps even put it away. It helps mutual relations in today's Kingdom that we have begun to speak more openly about this. Apologies from His Majesty the King, the Dutch prime minister, various Dutch cities and other institutions give that inhuman past more substance and depth. That is gain and offers opportunities to enter the future together in a constructive way.

The lack of vision on relations with the West was not perceived as a shortcoming in colonial Holland. After 1848, when important steps were taken in the Netherlands itself towards full parliamentary democracy and important civil rights, virtually nothing changed in the West.

In practice, the abolition of slavery - important though it was - hardly led to fairer social relations. It was not until 1949 that universal suffrage was introduced, thirty years after the introduction in the Netherlands and it was not until late 1954 that concepts like equality, autonomy and free will were given the place they should have had much earlier.

The Charter for the Kingdom as finally settled in 1954 was a direct outcome of the new world order after World War II. Classic colonialism, enlightened or otherwise, was over, although the Netherlands had difficulty accepting its consequences, as the difficult and partly violent disengagement of Indonesia showed.

Since then, the Kingdom has undergone some major changes. The most important has undoubtedly been Suriname's independence in 1975. From that, incidentally, we learnt that political connections can be cut, but not the many ties formed by shared history, social interaction and culture.

Also important were of course the separate status of Aruba in 1986 and the constitutional revision of October 2010, now 15 years ago. In terms of content, however, the Statute itself did not change that much in those seventy years: the basic idea remained the same, the text was not radically changed, at most it was adapted to the changed political relations, and for the interpretation of provisions of the Statute, the Charter reference was made to what was intended in 1954.

That Kingdom Charter generally worked reasonably well until the early 1990s. In the decades after the war, relations were both figuratively and literally distant. From the Dutch perspective, the islands were far away, and a distant approach was also used to prepare for constitutional independence in the short or medium term. Those who do not see a shared future ahead of them do not need to invest in each other. Indifference in those years often led to ignorance, conscious ignorance then, which is close to neglect.

When it became clear around 1990 that Aruba ultimately did not want to leave the Kingdom, the perspective changed. In the perception of many, the Kingdom's ties from that moment on - ratified with an amendment to the Charter in 1992 - turned out to be truly indefinite. On the islands, some politicians argued for more autonomy, but the pursuit of real independence never gained the upper hand, neither then nor now.

In The Hague, when the Statute was half as old as it is today, politicians realised that ties with the islands would not be broken and the chances of this happening in the next decades were minimal. The conclusion is widespread: if the islands do not want to cut the constitutional ties themselves, the Netherlands, as the former coloniser, certainly cannot, and will not.

Precisely the realisation of the permanence of the ties brought about a new dynamic. From 1990 on ministers for Dutch Antilles Affairs became more concerned than before about the soundness of governance, law enforcement and public finances.

Under the Charter, but increasingly also under international and European Union law, the Kingdom as a whole is addressed. In Sint Maarten the penitentiary situation gives a clear example of this. The European Court of Human Rights in Strasbourg does not address the government in Philipsburg on the issue of maintenance of fundamental rights of prisoners but the Kingdom government. This dynamic is not always easy, often leads to tensions and reproaches back and forth, but at the same time, it seems to me, this dynamic is inevitable and therefore inescapable.

In any institutional relationship that stems from a colonial or unequal history - think also of England versus Scotland or Catalonia versus Spain - there is by definition tension. Tension because of economic differences and financial dominance, tension because of historical injustice, tension between cultures and sometimes, unfortunately, tension because of forms of superiority thinking in the former motherland and/or a minority complex on the other side. These tensions create contradictions that can only be bridged by good will on all sides. I have more than once put it this way – in the Kingdom we need flexibility, reasonableness and a touch of wisdom. So then in the core it is much more about the culture of the relationship rather than about the structure.

The Charter relies only to a limited extent on the strict separation of responsibilities and powers. There are mainly additional responsibilities. Apart from the Kingdom's matters listed in Article 3, each country is autonomous in the fulfilment of its governmental responsibilities, but the Kingdom has, additionally, a responsibility for the interests listed in Article 43. And those interests - the realisation of fundamental rights and freedoms, legal certainty and sound governance - are precisely the core of what often is at stake. The countries themselves must ensure them, but the Kingdom has the responsibility that this is actually done, for ensuring it. For that responsibility, the Kingdom itself has few instruments and thus relies first and foremost on the cooperation of each of the countries, the four countries, that is to say.

An understandable set-up in the semi-federative structure of the Kingdom, which, however, almost always entails that different views get bogged down in conflicts over competence and responsibility, without getting around to actually addressing the issues that frustrate the people. Who is authorised and who is not is a considerably more powerful question in Kingdom relations than who is suffering and who can help. You all know the examples, from education to hospital care, from local crime control to poverty reduction.

The Council of State of the Kingdom

Perhaps I may now briefly say something about the Council of State of the Kingdom. Article 13 of the Charter has established in 1954 that there is a Council of State of the Kingdom. The Council of State of the Kingdom is in many respects the same as the Council of State of the country of the Netherlands, yet also substantially different, both in tasks and composition. It is a Kingdom body that provides mandatory advice on Kingdom laws and general measures of Kingdom administration, can act as a conflict resolver and as an adviser in Kingdom relations. These tasks are assigned not only to members originating from the Netherlands - we call them state councillors - but also to state councillors from each of the three Caribbean countries.

The Council of State is a totally independent body. It is no extension of the Ministry of BZK or of any other part of the Dutch government, or for that matter the Kingdom government. We like to stand in neutrality above all parties involved and we always weigh all different positions and all points of view. We take our independence and that responsibility extremely seriously. There are still some politicians on the islands who think that the Council should be distrusted because it mainly is a white Dutch body. But let me ask you: why would any politician accuse us of being biased? Is this accusation based on clear facts or is it just feeding negative emotions in an attempt at institution bashing?

The advisory division of the Council (which also has an administrative jurisdiction division) includes a specially established Kingdom Committee that I personally preside, which pools knowledge and expertise, coming from state councillors but also from very experienced staff members such as our general counsel Ron van der Veer, whom many of you here know or should know.

The three state councillors of Aruba, St Maarten and Curacao are appointed by the crown, based upon agreement between the government of each of the three Caribbean countries, the Kingdom government and the Council of State. They have a clear connection with the country, having come from the island and having lived and worked there. But as state councillors, they are not representatives of the governments of their countries like ministers plenipotentiary are. They do not get instructions from the Government Building. Independent of any interest and any minister, they perform their duties as independently as all other state councillors and cannot be withdrawn of sacked other than by the Council itself.

The recent advise on 70 years of Kingdom Charter

Already in 2004, celebrating 50 years existence of the Charter, the Council of State observed that the possibilities offered by the Charter are insufficiently used. All relations need maintenance and investment, also constitutional ones. Without deepening, they will gradually break up. On paper, the ties could remain, but the Kingdom would live less and less in people's hearts. And, I might add, in the minds of politicians, especially on the European side of the ocean.

Twenty years on, the Council found that there was every reason to look again at the Charter that is now 70 years of age. In short: although seventy, there is no need what so ever for retirement.

I would like to start not with governmental relations, but with the civil society and the private sector. And then I can say loud and clear that many things are going very well in the cooperation between the citizens of the Kingdom and their organisations. For example, look at this place for education and knowledge, which is working with many higher education institutions across the Kingdom and can increasingly become a centre of innovation. Look at KLM and Schiphol Airport, helping to make your airport an even stronger regional hub. Many organisations in civil society also have their connections, for example the way how your Nature Foundation through the Dutch Caribbean Nature Alliance cooperates with similar organisations on all other Dutch Caribbean islands and in the European part of the Netherlands.

Such alliances, involving cooperation between peers on the islands and in Europe, could very well prove to be the main driver for concrete and sustainable strengthening of kingdom ties.

There is more good news to celebrate our Kingdom as it is! Living standards in the three Caribbean countries within the Kingdom could be better, but are significantly higher than in most surrounding islands, independent ones or otherwise. Many appreciate the benefits of the Kingdom. I mention for instance the Royal Navy and other defence-forces, or the common passport that makes worldwide travel very easy. Important for Sint Maarten in particular is the guarantee of emergency aid after hurricanes and other disasters. But please think also of legal certainty: independent justice and maintenance of the rule of law is crucial in any society and you have it. Frankly, the same should be said more often about independent financial supervision. All countries in the Kingdom benefit from it, including the Netherlands of which the annual budget is scrutinised and rated by the European Commission.

Various surveys have shown it for many years: there is hardly any appetite to leave the Kingdom and I can understand that very well. Emotions are one thing, but the facts are unmistakably clear. For Aruba, Curacao and Sint Maarten, the Kingdom represents a value in itself.

But I am not naïve nor blind. Unfortunately our Kingdom is not always paradise, on the contrary.

The political kingdom relations are largely dominated by mistrust. Caribbean governments and politicians regularly regard the attitude of the European Dutch as (too) harsh and authoritarian, with little regard for local circumstances, no clue of history and insufficient respect for local autonomy. On the contrary, ministers or parliamentarians in the Netherlands regularly point out to Caribbean countries that they fail to solve the problems their citizens face, such as poverty, school dropout and crime.

In the long run the political tensions may damage our mutual bonds. The Council opens its advise with a reflection, addressing the various causes of these tensions.

The structure of the Kingdom, in which the Netherlands alone has undeniable numerical superiority, makes tension in a certain sense inevitable. International relations globally have become much more complex during the past decades. Because of their small scale, Caribbean countries can never fulfil all governmental tasks completely on their own and cooperation is needed. But this also applies to the Netherlands in Europe, and hence the growing importance for cooperation in a European context.

The world has changed dramatically since 1954, while the content of the Charter has hardly changed at all. Is it still relevant? The Council certainly sees this relevance. The core concepts in the Charter - local autonomy, good governance, human rights, shared citizenship, collective defence and foreign policy - are still of the greatest importance, as is mutual cooperation. The Charter provides good starting points and tools to actually shape that cooperation.

This is a relevant observation, because in the past, it was often said that the Charter had become outdated and obsolete and therefore needed a major overhaul. But such an exercise alone would take years of energy and laborious negotiations and with no prospect what so ever of concrete results. Why waste energy if with existing instruments so much has been and can be achieved?

The Charter is future proof, but it would be advisable to read the 1954 text and the official explanatory memorandum with a 2025 perspective: constitutional texts are not static documents, but always need to gain their meaning within the current context.

In my view, therefore the core of the Charter still stands proudly today: the appeal to the countries, then three now four, to cooperate and assist each other constructively, contributing to mutual understanding and balanced relations.

Against this background, the Council advice addresses four concrete themes, which I would like to briefly run through with you.

First, it deals with human rights and good governance, partly in relation to the Kingdom's safeguard function. Whether it is poverty, school dropout or low literacy: the social problems Sint Maarten faces are large and diverse. You cannot solve these issues on their own. This is true for all countries and even more so for small ones: their administrative capacity and implementation power are limited. They often lack sufficient resources in terms of knowledge, personnel and money. Besides all that, sometimes, unfortunately, there is also unwillingness: many have an interest in the status quo. Not to mention corruption, clientelism and integrity issues. We have them in the Netherlands, but so do you.

Good governance and respect for human rights may sound like abstract concepts, but this is not an academic discussion. Social issues are directly related to human rights, such as the right to education or the right to a healthy environment.

The Kingdom Charter contains a separate provision on the observance of human rights, legal certainty and the soundness of governance. These are autonomous country tasks for which country governments are therefore primarily responsible. If a country cannot or will not sufficiently fulfil this responsibility, the Kingdom has an additional responsibility to fulfil it. This additional responsibility is called the safeguard function, Article 43 paragraph 2 of the Charter. The Charter thus assumes a shared but sequential responsibility for the observance of human rights, legal certainty and the soundness of government.

In 1954, the concept of good governance was not yet sharply defined worldwide. It developed further on the road in these seventy years. That concept has become clearer and has now taken on a more law-normative meaning over the decades, where the government is also held to account by judges.

The Kingdom government must be prepared to intervene if really necessary: the safeguard function provides the legal instruments to do so. But any intervention from outside will in practice be complex and the outcome uncertain. So it should never really come to that. If retrospective intervention is the only conceivable option - a last resort you don't want to think about - the safeguard function should therefore be better utilised in advance by timely and effective cooperation to prevent serious abuses. Proactive action, in other words. The best way to ensure good governance and compliance with human rights treaties is to cooperate across the boundaries of competence discussions. This is not always easy for politicians - I understand that better than anyone - but it is essential for our citizens.

In its advise, the Council recommends prioritising cooperation in the fields of education and poverty reduction as basic preconditions for a dignified existence for all. I think the cooperation that took shape in recent years in the so-called country packages by the TWO (Temporary Work Organisation) tastes for more.

A second element of our advice addresses the question of how cooperation between countries can best take shape: in mutual arrangements, concluded as agreements between entities, or in consensus Kingdom laws (so called consensus-rijkswetten), which require parliamentary approval. Laying down the details of agreements is often important: when it comes to the goals to be achieved, the way cooperation takes shape, monitoring, financing, accountability, etc. Cooperation is voluntary, but not non-committal. Vague non-committal agreements often lead to diverging expectations, disappointment and frustration.

There is hesitation among many Caribbean politicians to work with the instrument of consensus legislation. In the creation of that type of Kingdom legislation, the Dutch organs are often dominant, which means that real consensus does not really exist.

In its advisory opinion, the Council makes a number of concrete suggestions to apply the procedure in such a way that, on autonomous matters, Kingdom laws cannot be created without the explicit and ongoing consent of all parliaments and governments involved. This, we think, contributes to the creation of consensus Kingdom laws based on genuine consensus. Moreover, the Council recommends explicitly regulating in each consensus Kingdom law whether it can be ended and - if so - by whom and under what conditions.

Of course, cooperation can also be done through mutual arrangements, a flexible instrument that offers many possibilities. However, it is important to point out that binding rules for citizens always belong in a law or national ordinance. Mutual arrangements have fewer democratic guarantees but do seem eminently suitable for practical cooperation.

Third, the advisory opinion addresses the important themes of equality and equivalence. Equality is a key concept in the Charter. It is also a recurrent theme in the debate on relations. This is because they are actually very unequal. The Netherlands has the upper hand in almost every respect (population, finances, administrative power), which numerically, by definition, leads to unequal relations. This is not entirely solvable. Nevertheless, a few measures can better meet the basic principle of equality and thus increase the legitimacy of the Kingdom. I will mention three: the right to vote for the House of Representatives, the position of the ministers plenipotentiary in The Hague and the general dispute settlement mentioned in the Charter, which unfortunately is still lacking.

Let me start with the right to vote for the House of Representatives. All Dutch nationals living in the Netherlands or outside the Kingdom already vote for that parliament. However, most Dutch nationals living in the Caribbean countries are excluded from that right to vote for the Tweede Kamer and, for that matter, also have no influence on the composition of the Upper House, the Senate. Both Houses do decide on kingdom affairs, but cannot be called a full-fledged kingdom parliament.

The so-called democratic deficit has been debated for many years. The Council of State considers it time to settle this debate. This realistically should and can be done within the present Charter. Not by creating new bodies, but by granting the right to vote to all Dutch citizens, including all residents of Curacao, Aruba and Sint Maarten who have Dutch nationality. This only requires amending the Dutch Elections Act (Kieswet), not the Kingdom Charter nor the Dutch constitution (Grondwet).

This active right to vote for all obviously has practical significance, although limited. However, it also has an important symbolic value, namely that all citizens in the Kingdom are equal and equally entitled to participate in the election of the Kingdom's highest legislative body. I expect that with the introduction of this right to vote, parties will include more Caribbean candidates in their lists and will actually campaign here as well, although the electorate compared to the Netherlands is of course not large. But it can just make a difference, for instance in preference votes. Hopefully, this will also contribute to more mutual understanding and better cooperation.

A second possibility to build some more equivalence into the relations is to strengthen the countries' position in decision-making on Kingdom affairs by emphasising the role of the three minister plenipotentiaries in the Kingdom Council of Ministers. After all, they represent Caribbean interests in the Kingdom Council of Ministers. And that is no easy task, given the relations within that council of ministers, where it can quickly become 16 to 3.

It is wise if the ‘gevmins’ are given more space to put forward their views and more time to discuss their mandate with their own government. To be maximally effective, it is also important that the minister plenipotentiary is authoritative as a person and can do his or her job with knowledge and experience. This will have to be explicitly weighed in the distribution of posts in the formation of a new cabinet. It is an extremely important post for which administrative, diplomatic, intellectual and social gifts are indispensable.

The last point from our advice I would like to mention, concerns the lack of dispute resolution.

The numerical imbalance in the Kingdom council of ministers means that Caribbean countries can easily be outvoted by the Netherlands. Since 2010, the Charter has included an assignment to create arrangements for settling disputes between the countries and the Kingdom. Almost 15 years later, however, there is still no general settlement and the design itself has now become the subject of dispute. To put it mildly, that was not the intention.

The Council of State advocates putting new energy into this relevant topic and makes \concrete suggestions to this end in the advisory opinion. Disputes at the Kingdom level are rarely of a purely legal nature; there are often also political administrative considerations at play, which are ultimately considerations that require a political administrative judgement. That is not something a regular judge can simply decide upon. Therefore, in my view - and that of the Council - it is wise that any independent dispute settlement consists of two elements: a) completely binding on questions of constitution and law, and b) very weighty on any additional political administrative deliberations, which can then only be deviated from on very sound and exceptional grounds. This method is not new: it has worked quite well on disputes deriving from financial supervision within the framework of the Kingdom law on financial supervision. Why not broaden this method that has already proven its value?

Either way, it is time to resolve this. This can be done if all parties are willing to move beyond their previously held positions. It is once again not about who is right, but about reaching a workable compromise that benefits the countries' citizens.

Reactions so far

Our advice has been well received so far. In The Hague it was handed over to the Chair of the Kingdom Council of Ministers, prime minister Schoof, and to the state secretary for Kingdom relations. The advisory opinion was also presented to the governors and prime-ministers of Aruba, Curacao and Sint Maarten. The parliament of Curacao organised a technical briefing, in Aruba it was suggested to organise a Kingdom Conference about the topics of the advice. The Sint Maarten prime minister has asked the Council of Advice for a reaction. We of course hope for a positive approach of the Council of Advice, also given the fact that in preparation of the advice of the Coucil of State, the Council of Advice of Sint Maarten was involved and gave its views and suggestions.

In The Hague the advice is being studied by BZK, other departments and both Houses of Parliament and I expect it to be subject to discussions within IPKO.

It was also well received by local media and by a number of outstanding scientists. Some of them wanted nevertheless to change the Charter and I hope – also tonight – to have convinced them of the idea that such attempts are unnecessary and politically futile. Do our citizens have time for more decades of constitutional fairy tales and unachievable vistas? Or do we start using the tools already available?

In conclusion

Any narrative about our Kingdom must take into account the greatly changed international relations since 1954. The interdependence of countries and peoples is ever increasing. Globalisation brought people from far away close, both literally and figuratively. Economic activities are closely linked internationally and migration has become a common phenomenon in all parts of the world and thus also in the Kingdom. All this makes mutual cooperation vital. This is true for a medium-sized country like the Netherlands in Europe and it is true for small countries like Curacao, Aruba and Sint Maarten. So why not look in the first place at deepening cooperation with old and trusted partners?

It is important to once again establish the notion that the frameworks of the existing Charter offer room to start deepening and broadening political, administrative and social cooperation right now. And the same Charter also provides ample opportunities for targeted intervention if the soundness of governance is persistently and seriously at stake.

The Charter will remain to be the foundation of our Kingdom for many years to come. Firstly, because there is no reason in substance or practice to make major changes now and, secondly, because the political possibilities of making such changes are, in reality, nil. We can spend our time and energy better, especially given the social, economic and geopolitical problems facing the countries and the Kingdom.

With the present Charter in hand, much more can be arranged jointly, if we dare to do so politically. If we really want to give substance to the Kingdom, substance to the meaning of permanent union. This can be done in small, but meaningful steps. With perseverance, reasonableness and, if possible, a bit of wisdom.

Thank you.