The dispute settlement procedure for the Kingdom in perspective

Publication

13 January 2016

In the first week of January, it was announced that, on the eve of the Inter-Parliamentary Kingdom Consultations (IPKO), the delegations of the Caribbean countries of the Kingdom had reached an agreement on the content of the dispute settlement procedure for the Kingdom. A proposal was proudly announced and presented to the Dutch delegation. Several media headlined a historic moment; it would be unprecedented that the joint parliaments of the Caribbean countries of the Kingdom submitted an initiative bill for a kingdom act. This is actually not possible under constitutional law, but the idea of an initiative of the Caribbean parliaments gives hope and courage. However, the Dutch delegation of the IPKO does not support the Caribbean initiative. According to the Dutch delegation head, Jeroen Recourt, the proposal is premature and the governments have to make the next move. What is the background, history and context of this dispute settlement procedure? And what do the most recent developments mean to the relationships in the Kingdom?

Charter
A dispute settlement procedure for the Kingdom. For more than sixty years it has been discussed, written about, and debated on, and there still is no procedure. But after this proposal we seem to be a little closer. Since the last major amendment to the Charter for the Kingdom on 10 October 2010, which marked the dissolvement of the Netherlands Antilles, the kingdom's act legislator has a difficult assignment. Article 12a of the Charter stipulates that by kingdom act "provisions have to be made for the handling of disputes between the Kingdom and the countries, designated by kingdom act".

An impossible task?
At first glance, the assignment of the kingdom act legislator seems quite clear. Step 1: Draw up a draft procedure laying down what the countries have agreed or discussed on concerning this topic in the run-up to 10 October 2010 and since then. Step 2: Initiate the kingdom act procedure (Articles 14-19 of the Charter) to lay down the procedure and let it take effect.

If only it were so simple. In fact, a lot has to be provided for in the kingdom act. Food for constitutionalists, politicians and other enthusiasts. The following questions are debated on, written about and discussed endlessly:

a. What body can the disputes be submitted to?
b. What parties can submit a dispute?
c. What disputes can be submitted?
d. What review criteria does the body charged with the dispute settlement use?
e. What rulings can be given?
f. Is a ruling binding?
g. What happens if a country does not observe a ruling?

If you would compare the dispute settlement procedure with a spontaneous match of street football, it comes down to the questions who the referee is, what rules apply (whether or not use the offside rule, with or without a goal keeper who also plays in the outfield), whether the referee they have appointed from their midst can disqualify someone with a red card and what happens if a player refuses to leave the field after a red card. These are not only important questions from a legal perspective. Also from a historic and cultural perspective, the setup of a dispute settlement procedure for a trans-Atlantic state is many times more complicated than a football match between neighbors.

Lack of input and absence of consensus

Meanwhile, the need for a dispute settlement procedure has increased. As a result of the instructions given to the Governors of St. Maarten and Aruba in 2013 and 2014, major disputes have arisen. They have surely made the Caribbean cries for help for an independent arbitrator who gives binding rulings, louder and clearer. The discussion is gradually becoming a battle with strong language such as "The Hague dominance" and "democratic deficit".

Officials in The Hague (notably the Ministry of the Interior and Kingdom Relations) already seem to be drafting a procedure for quite some time. Unfortunately, it has not led to a final proposal yet. First, because of lack of input from the Caribbean countries and later because it has proven to be impossible to reach political consensus on the content of the procedure, despite IPKOs and Kingdom conferences. Minister Plasterk made a proposal for a temporary dispute settlement procedure in 2015, which strongly resembles - as far as procedure and content are concerned - the appeal to the Crown in Article 26 of the Financial Supervision Act. When a dispute arises, the decision-making process in the Council of Ministers of the Kingdom is put on hold and the Council of State for the Kingdom is called in. After hearing the objections of the country that has instituted the dispute, the Council of State for the Kingdom subsequently issues 'advice' to the Council of Ministers of the Kingdom. The Council of Ministers of the Kingdom will have the final say and can, provided that it is substantiated, deviate from the advice of the Council of State for the Kingdom. As expected, this proposal was not received well by the Caribbean countries.

Will it finally happen?

Minister Plasterk's proposal and the by now rejected bill of the Caribbean parliamentarians are definitely steps in the direction of a final dispute settlement at kingdom level. There is still an ocean in between, but the will to bridge it seems stronger than ever. It is high time to fulfill the assignment in the Charter.

About the author
Aubrich Bakhuis joined VanEps Kunneman VanDoorne as an attorney law in July 2015. Aubrich is an innovative lawyer with a passion for both the commercial as well as the scientific aspects of the law. Having gained experience as a legal counsel, he became a Ph.D. candidate in Caribbean constitutional and administrative law at the Erasmus University in Rotterdam. Aubrich publishes regularly in Dutch and Caribbean legal media.