PHILIPSBURG — Since 2010, the Kingdom Charter contains an article that orders the establishment of a dispute regulation but fifteen years later that piece of legislation is still a pipedream because the Caribbean countries and the Kingdom government are unable to reach an agreement about it.
The Kingdom Council of State issued an unsolicited advice about this issue and the outgoing government of Prime Minister Dick Schoof has now clarified its opinion about it in a so-called position paper. This reaction will not be welcomed in Philipsburg, Willemstad and Oranjestad because the Dutch government has dismissed the advice from the Council of State and proposes instead to revive its own dispute regulation. This will no doubt cause uproar in the Caribbean because this proposal was withdrawn earlier after vicious opposition from the countries.
More than six years ago, in January 2019, the permanent parliamentary committee for Kingdom Relations paused its investigation into the dispute regulation saying it wanted to wait for reaction from the kingdom Council of State about an amendment that was tabled by Labour Party MP Joris Thijsen and that was approved with a large majority in the Dutch parliament.
Thijsen proposed to establish a department for kingdom disputes within the Council of State. Said council was critical, saying that this would endanger its independence, considering that the department would consist of members of its department for advice, Caribbean members of the Council of State and three extraordinary councilors. These councilors are nominated by the three Caribbean countries but that they are appointed by Royal Decree.
The Kingdom Council of Ministers saw no reason to consider a change of the procedure, Raymond Knops, at the time minister of Home Affairs and Kingdom Relations, informed the parliament, even though a large majority of that same parliament had voted in favor of the Thijsen-amendment.
The outgoing government of Prime Minister Dick Schoof, confronted with the advice from the Council of State, stuck to the guns of its predecessors, saying that the proposed solutions had problems as well. Schoof expressed a preference for the earlier withdrawn draft-law, saying: “This is the best feasible proposal.” The outgoing cabinet is willing to revive this law. It is of course unclear what the position of the next Dutch government will be.
The Council of State advised to let the dispute regulation handle concrete decisions that intervene in the governance of the Caribbean countries and to declare decisions by the department of disputes about legal aspects binding. Its decisions about policy-issues should be read as serious advice and that diverging from them would only be possible based on substantial grounds.
The Schoof-cabinet objects to this, saying that it is difficult to distinguish legal and policy disputes. “They are often about matters whereby policy and legal aspects are closely interwoven.”
Furthermore, the cabinet notes that the Council of State does not limit the subjects that can be submitted to a department of disputes for review. “The earlier withdrawn draft kingdom law did exclude certain subjects and it also offered the option to bypass he dispute regulation for urgent cases.”
And with that, the Dutch government basically decided that its own proposal for a dispute regulation is the best possible solution. Whether this will finally put the arguments about the dispute regulation to bed, remains is uncertain because Aruba’s minister plenipotentiary has just submitted a new proposal.
This proposal is a well thought out document, but it still contains provisions that the Dutch government will not agree with. Aruba proposes for instance the Kingdom Council of State as the referee about disputes between the Kingdom and one of the Caribbean autonomous countries. It also proposes that the advice from the Council of State about a dispute will be binding.
In a way, this sidelines the Kingdom Council of Ministers because it would have no other choice than to do the Council of State’s bidding. Currently, given the composition of this council, the Netherlands will always have the upper hand. And giving up control is not on the agenda of the outgoing Dutch government.
St. Maarten has expressed its agreement with Aruba’s draft law in a letter from the parliament’s president, Sarah Wescot-Williams.
But the establishment of a dispute regulation still has a long way to go. If the Dutch government refuses to agree, it will fall back on its own draft dispute regulation. That, in turn, will cause political uproar in the Caribbean countries. It is good to remember that the Dutch withdrew an earlier version of this law after Curacao, Aruba and St. Maarten expressed serious objections.
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