St. Maarten completely in control

By Hilbert Haar

It does not happen very often that St. Maarten gets help from an unexpected source on the other side of the ocean. In the middle of the discussions about the conditions the Dutch government has attached to financial assistance for the reconstruction of the island after Hurricane Irma, such help came last week from Flora Goudappel, a professor in European law.

Her opinion – published in the quality newspaper Trouw last Thursday – will give our government some additional ammunition in its discussions with The Hague. Goudappel’s message: St. Maarten is in control of everything. St. Maarten has to ask for help and then the other countries in the kingdom have to deliver based on their abilities, Goudappel says. For European relief funds St. Maarten can also act independently, the professor argues.

Remarkably, Goudappel observes, the opinions about the future of St. Maarten are predominantly presented from a Dutch point of view, preferably based on economic analyses. “The reactions regarding the island sum up like this: inlijven (incorporate) or afstoten (repel). These verbs indicate that their authors assume that this is supposedly an action from the Netherlands. That is not correct: the citizens of St. Maarten decide about their future within the kingdom.”

Goudappel furthermore notes that St. Maarten has the right to self-determination, as established in article 1 of the United Nations charter. This right has been given to the population in (predominantly) decolonization processes. The population of St. Maarten decides whether it is satisfied with the current status within the kingdom – not the Netherlands. “It is not the former colonizer who decides about the fate of its former colony, but the former colony itself,” Goudappel writes.

The whole kingdom has a say in the follow up to any decision by the citizens of St. Maarten. That has to be a unanimous decision of the four countries in the kingdom – the Netherlands, Curacao, Aruba and St. Maarten. This applies to the choice for independence as well as to a choice for a different status within the kingdom, Goudappel says.

If such a decision would lead to a change of the current situation, the Kingdom Charter must be amended. “On this topic the four countries in the kingdom are equal and they all have to negotiate and agree,” Goudappel says. “This is therefore about the kingdom as a whole, not about a one-sided wish of the Netherlands. Whether it is economically interesting to keep St. Maarten within the Kingdom or not, the population has the say about it, not the Netherlands alone.”

Goudappel also examined the question who is going to release funds for the reconstruction. The professor says that there are two options: on a national or a European level.

This is where Goudappel’s opinion becomes really interesting. She refers to article 36 of the Kingdom Charter that regulates mutual help and assistance. The article does not only apply to the Netherlands, but also to Curacao and Aruba.

Says Goudappel in her opinion: “There are no indications, also not in the history of the law, that conditions could be attached to this. Even better: the article says that it may not lead to meddlesomeness (‘bemoeizucht’). St. Maarten has to ask for help and then the other countries have to deliver based on their abilities to do so.”

St. Maarten can in principle act independently for European relief funds, Goudappel notes. For the European Union, St. Maarten is one of the overseas countries and territories. This means that a part of European legislation applies to St. Maarten and that the country has access to many, but not all, European funds.

The French part of the island is a part of the European Union and it has direct access to all European funds, including the Solidarity Fund; that is the largest European fund, earmarked for emergency assistance and reconstruction. The so-called Echo-Fund is for non-European countries and it does not apply to St. Maarten.

Options for direct emergency assistance are mentioned in the regulations for the overseas countries and territories about the European Development Fund. St. Maarten can apply to that fund on its own; it does not need the Netherlands to do so. The European Commission has recently announced that St. Maarten, just like the French part of the island, is allowed to call on the Solidarity Fund. This can also be done without permission from the Netherlands.

Goudappel’s conclusion: “St. Maarten is completely in control.”

What stands out in Goudappel’s observations? Not that St. Maarten has free reign where European funding is concerned. We knew that already. No, what stands out is the hot potato The Hague is trying to shove down the government’s throat: the conditions that must be met in exchange for receiving reconstruction assistance.

It never made any sense in the first place, but Goudappel has now established beyond a reasonable doubt that there is no basis for making these demands in the Kingdom Charter. It is therefore about time that the kingdom government starts playing by the rules.