PHILIPSBURG:--- Decisions on Statia, are to be made by the people of Statia themselves, not by others, moreover, such decisions shall be made in full freedom, without outside pressure or interference. (Written Statement of the Kingdom of the Netherlands, 2018, par. 2.2)
Esteemed Island Council Members of St. Eustatius
Esteemed Regeringscommissaris
Esteemed Members of the mediation team.
Oranjestad, St. Eustatius July 27, 2022
Geen enkele staat mag strijdig met jus cogens regels handelen, en elke staat is verplicht schendingen tegen te gaan!
L.S.
Introduction:
The report you are currently contemplating has been overtaken by events. In case you might not have noticed, on July 4, inst. State Secretary van Huffelen introduced two new words, “jus cogens” into the constitutional lexicon of the islands of the former Netherlands Antilles, that have, unbeknownst to you, permanently and totally altered Kingdom relations. Indeed, as of that date the Kingdom as we knew it has ceased to exist. We are now in a transition phase, even though most people are not aware.
The New Paradigm in Kingdom Relations In the July 4th letter, the State Secretary confirmed that (a) the right to self-determination is a “jus cogens” or peremptory norm, and (b) in the event of a conflict between the “peremptory norm” and national or municipal (Kingdom) law, the peremptory norm prevails and (c) acknowledged the Written Statement as a legal source from which the islands may derive certain rights. In sum, the letter confirms that no law which violates Statia’s “jus cogens” right to self-determination can operate on Statia.
Can Statia claim the “peremptory right to self-determination” as a “Gemeente”?
In case the relevant people of the colonial territory have opted, in full freedom, for integration in or association with an existing State, this does not, however, end the applicability of the right of self-determination to that people nor does it terminate the corresponding legal obligation of the State in which the territory has been integrated, or with which the territory has become associated, to respect and promote the right of self-determination of those people in the new, post-colonial situation. (Written Statement of the Kingdom , 2018, par. 2.4)
Those are the words of the Kingdom of the Netherlands: the peremptory right to self-determination does not terminate after integration!
Obligations erga omnes
Pro Soualiga takes the liberty to intervene in this matter because, as the Kingdom of the Netherlands explains in inter alia, paragraph 4.5 of its 2018 Written Statement:
…because of the fundamental character of the right of self-determination under international law, the corresponding obligation on the part of the members of the international community must be deemed to have an erga omnes character as well.
Pro Soualiga as a lawfully constituted Civil Society organization under the laws of St. Maarten has an erga omnes obligation to take action whenever the right of self-determination is under threat.
Fatal flaw in the report
The report fails to question whether the ‘Tijdelijke Wet” meets the test as explained by van Huffelen. That is: Does the “Tijdelijke Wet” violate Statia’s “jus cogens” right to self-determination? By failing to apply this preliminary examination, the report has invalidated itself. We shall explore this in more detail below. The report makes the fatal error of assuming that the “Tijdelijke Wet” is lawful legislation.
Higher Supervison:
The report is on shaky legal ground where it recommends Higher Supervision. This concept is wholly opposed to the concept of the“jus cogens” right to self-determination and should be rejected out of hand.
What is meant by the “peremptory or jus cogens” right to self-determination?”
First of all, please note that “jus cogens”,” peremptory norm” or “super-customary norm” are used interchangeably.
In paragraph 2.2. of its Written Statement of 2018, the Netherlands gives a succinct definition:
On the basis of these formulations, it must also be concluded that the decisions on the political status and economic, social, and cultural development are made by the people themselves, or its legitimate representatives, not by others. Moreover, such decisions shall be made in full freedom, without any outside pressure or interference.
This definition clearly makes the entire report obsolete. The report pretends to make decisions that under the “jus cogens” right to self-determination only concerns the people of Statia, not outsiders, and it endorses outside pressure and interference such as the “Tijdelijke Wet” and “higher supervision”. All of these instruments are clearly in conflict with the“jus cogens” right to self-determination, as defined by the Kingdom of the Netherlands.
Can Statia agree to violate a jus cogens norm?
Often the issue of a voluntary agreement to Dutch intervention is raised. Any agreement to violate jus cogens norms is null and void, ab initio as the Kingdom of the Netherlands explains in par. 3.8 of the Written Statement of 2018:
Given the peremptory character of the right of self-determination of… peoples, any such title is null and void ab initio, in accordance with the principle ex injuria jus non oritur.
How the Hoge Raad views “jus cogens” norms
Het folterverbod heeft een absoluut karakter: geen enkele uitzonderlijke omstandigheid, ongeacht of het gaat om een oorlogstoestand, een oorlogsdreiging, binnenlandse politieke onrust of welke andere openbare noodsituatie ook, kan worden aangevoerd als rechtvaardiging voor foltering (art. 2 lid 2 Verdrag tegen foltering). (ECLI:NL:PHR:2014:369, r.o. 2.2 ) Omdat het folterverbod volkenrechtelijk tot het ius cogens wordt gerekend, moet een verplichting van Nederland op grond van het uitleveringsverdrag met de V.S. wijken voor een verplichting van Nederland op grond van het folterverbod. (ECLI:NL:PHR:2014:369, r.o. 3.16) While in the Written Statement of the Kingdom of the Netherlands to the International Court of Justice of February 27, 2018 the Kingdom posited: Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination” (par. 3.9) The Kingdom clearly acknowledges the right to self-determination and the prohibition against torture (folterverbod) both as “peremptory” or “jus cogens” (dwingend/absoluut recht) norms.
The Kingdom of the Netherlands to the rescue of Statia?:
. ..It could hardly be explained (to the people of Statia),.. that the right of self-determination was in their case a kind of constitutional fiction. Such an interpretation would deprive the [draft] Covenants [on Human Rights] and the United Nations of all moral authority”). (par. 3.6 Written Statement of the Kingdom of the Netherlands, 2018)
Conclusion:
In light of the novum contained in the letter from van Huffelen (which we have attached for your perusal) we recommend that this report be withdrawn as it conflicts with the contents of van Huffelen’s letter, but more important, it is probably null and void because it contemplates and recommends acts (Higher Supervision) that are clearly in conflict with a super-customary norm of international law.
Sincerely
Pro Soualiga,
Oriens ex Occidente Lux
Cc: Staatssecretaris van Huffelen
Rijksministerraad
Eerste Kamer
Tweede Kamer
