Published On: Mon, Nov 19th, 2018

Statia in Peril: The case against “Public Entity” – REVISED

Julio R. RomneyBy Political Analyst, Julio R, Romney

The Court of First Instance in Philipsburg is scheduled (on Tuesday, November 20, 2018) to hear open arguments from the dissolved insular Government of Sint Eustatius which was taken into receivership on February 7, 2018 by its Central Government – The Government of the  Netherlands. The dissolved Government officials are of the opinion that the Government of the Netherlands infringed on Statia’s “right to a full measure of self-government” as established by the United Nations and further concluded that the action of the Netherlands is in violation of international law as indicated by the Vienna Convention on the law of Treaties and now seeks the Court of First Instance ruling to reverse the receivership action of the Government of the Netherlands.

To put this into perspective, with the dissolution of the Netherlands Antilles, on October 10, 2010, Sint Eustatius became a Public Entity/Body of the constituent state of the Netherlands. In other words, integrated into the Netherlands as a municipality and as such properly governed under the Constitution of the Netherlands. With the Central Government of the Netherlands having the statutory authority to “exercise supervision” or to oversee the local administration of Sint Eustatius, as provided for under Article 132 of the Constitution of the Netherlands.

Based on media reports, out of concern in which the Government was being administered, the Government of the Netherlands established a committee to investigate the operation and functioning of the Government of Statia. The Committee reported back that the Government of Statia was in a state of “lawlessness and financial mismanagement, threats and insults and the pursuit of personal power”. To this end, the Government of the Netherlands, invoked Article 132 of the Constitution through an Act of Parliament (namely the Temporary Act on Neglect of Duty in Sint Eustatius) and thereby dissolved the local elected government and appointed a “Government Commission” to oversee the governing of the Island.

In defense or to support the claim that with the dissolution of the local elected Government of Sint Eustatius, Statia’s right to a full measure of self-government is infringed upon – the dissolved local elected Government of Sint Eustatius  cited Article 73 of the United Nations Charter and insofar as the dissolution action of the Netherlands being in violation of international law  Articles 26 and 27 of the Vienna Convention on the Law of Treaties is cited. In addition there is also much talk about the use of Article 2 and 103 of the United Nations Charter to further solidify the case. An abundance of caution should be exercise here and the identified Articles should be closely examined with respect to the audience, intent and jurisdiction of the articles.

First and foremost, it is highly questionable whether or not, more likely not, Article 2 of the United Nations Charter can be used to further solidify the case against the receivership action taken by the Netherlands. Clearly Article 2 establishes the United Nations as membership base on the principle of sovereign equality. In other words the content of the Charter speaks to an agreement for adherence between members with the notion that Members are equally sovereign. Respectfully, Sint Eustatius is not sovereign and as such not a member of the United Nations, but only a lower administrative body (municipality of the Netherlands) of a sovereign member of the United Nations – the Kingdom of the Netherlands. This is addressed in the 7th part of Article 2 which states that “nothing contained in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matter to settlement under the Charter”.

As for article 103, this Article addresses a conflict between Members, where their obligations under the Charter shall prevail. Again, Sint Eustatius is not a member of the United Nations and the conflict is of a domestic nature between the local government and its Central government, so there is nothing to prevail within the realm of the United Nations Charter.

With that said and in regard to the view that the dissolution of the local elected government, Statia is deprived of “a full measure of self-government” which is recognized in Article 73 of the United Nations Charter as paramount and encourages all its members to promote self-government in its administration of territories. Operationally, the basis of self-government warrants that administrative governed bodies to have self-rule and control of their internal affairs, free from external government control or outside political authority.  Where self-rule does not extend to the right to unilaterally do as pleases within the Constellation, but expect to be govern or follow the established rules and regulations of the Constellation.

In addition, given the factors which are further laid out in Article 73 of the United Nations Charter, with respect to establishing whether or not “a full measure of self-government is being attained, to include: ensuring respect for the culture of the territory, its peoples political, economic, social and educational advancement, their just treatment and their protection against abuses; take into account the political aspiration of the peoples of the territory and assist them in progressive development of their political institutions according to the particular circumstances and stage of advancement, and; the promotion of constructive measures of sustainable social and economic development, there appears to be no claim that little or no attention is being paid to these factors by the Government of the Netherlands or the Kingdom of the Netherlands. Nor that with the receivership of the local Government of Statia their full measure of self-government will be hindered. On the other hand, the documented reason for the receivership of the local government, by the Government of the Netherlands, is based on the “lawlessness, financial mismanagement and the pursuit of personal power of the local Government” investigational findings of the committee which speaks directly to Article 73(a) factor of the UN Charter in ensuring the establishment of “a full measure of self-government”.

Second, without prejudice to Articles 26 and 27 of the Vienna Convention on the Law of Treaties, they have no binding force on the lawfulness of the Government of the Netherlands dissolving the local elected Government of Sint Eustatius. Specifically the Temporary Act on Neglect of Duty in Sint Eustatius that was for the dissolution of the local elected Government of Sint Eustatius. In general the Vienna Convention on Law of Treaties applies to agreements between states. While the Temporary Act on Neglect of Duty in Sint Eustatius is presumably an agreement between the Government of the Netherlands and the local elected Government of Sint Eustatius it is not a treaty. What is a treaty? A treaty is an agreement entered into by two or more states, mainly of sovereign powers.  Again, these Articles do not apply to the circumstances of Sint Eustatius.

It is evident that Statia’s peril points to a political discourse or argument rather than a legal case. The crisis is integrated into its political status as a Public Entity (of the Netherlands), a political statutory arrangement that the local polity seems not to be prepared for or likely did not fully understand from its inception. All parties must take care to determine the needs and welfare of the people of the Territory of Statia and place these before politics. The suggestive path forward here is through political dialogue in institution-building and likewise comprehension.

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Publisher’s note: This article has been revised by the author at the request of the publisher. Revision publication date is November 27, 2018.