PHILIPSBURG:---The court of appeal ruled in favor of the country St. Maarten and the Kingdom on Wednesday when the verdict was rendered.
Cactus Tree “Captain Olivers Restaurant and Marina submitted an appeal against the verdict rendered by the court of first instance on November 24th, 2020.
The attorneys representing Cactus Tree submitted six points of contention as their ground for appeal all of which were rejected by the appellate court.
In its ruling, the court made clear that Captain Olivers Restaurant and Marina is located in a disputed area and that safety and security take priority.
The appellants also filed for a conditional alternative claim. Its conclusion is that the Court will quash the verdict and still allow their alternative claims.
In memorandums of reply, with exhibits, received on 29 April 2021 and 12 April 2021 respectively, the Country and the State contested the grounds of appeal. Their conclusion is that the Court will uphold the contested judgment, with the appellants being ordered to pay the costs of the appeal proceedings.
Cactus Tree contested the fact that the French authorities had conducted controls both at the restaurant and marina which they said are not within the French territory, this claim could not be justly proven since both business establishments are located in a disputed area, and possibly within the French territory.
The appellants argued that the country had issued permits for the operation of restaurants and marinas and had collected taxes and other dues. The court ruled that the country did everything possible to safeguard the rights of the business owners, it also ruled that there was no agreement between France and the Kingdom about the exact land border between Sint Maarten and Saint Martin.
The border dispute was discussed in 2014 between representatives of the countries involved and Saint Martin. They have agreed to maintain the existing situation. Maintaining the existing situation was also later confirmed between them.
France and the Kingdom of the Netherlands have since established the maritime border between them in the Maritime Border Treaty of 6 April 2016.
At least in the period between 2014 and 2017, French authorities carried out checks at Captain Oliver's. Following an audit on 26 October 2016, the Kingdom of the Netherlands requested clarification from France. Following an incident that took place on 26 June 2017 at Captain Oliver's, the Kingdom of the Netherlands has again requested clarification from the French authorities, both orally and by means of a 'note verbale'.
In this regard, the Kingdom of the Netherlands and the French authorities have also brought to the attention of the existing agreement that commercial activities undertaken in Oyster Pond under a Sint Maarten permit may not be inspected.
In 2017, the Country also protested in writing against the French actions and inspections at Captain Oliver's and furthermore drew France's attention to the importance of 'good neighborliness'. In these letters, the Country also points to the importance of the agreement to maintain the existing situation in the disputed area.
Captain Oliver's has held both the State and the Country liable in writing in 2017 and 2018 for the damage suffered by Captain Oliver's as a result of the incidents and inspections by the French authorities in the disputed area.
In the proceedings, the appellants claim, in short, a declaratory judgment that the respondents have acted unlawfully towards the appellants, as well as
compensation for the damage suffered by the appellants as a result has to be made by the State. In the alternative, they claim, after the amendment of the claim in the event that it is judged that the checks took place on French territory and that therefore no wrongful act was committed because the respondents did not have jurisdiction', declaratory judgments that - according to the Court - the appellants have made payments to the Country of leasehold canon, rights for the establishment and other permits, taxes and social premiums, with an order from the Country to reimburse all amounts paid in relation thereto.
In the contested judgment, the Court rejected the claims, ordering the appellants to pay the costs of the proceedings.
In essence, the Court has considered that the plots of Captain Oliver's are located in an area where there is no agreement between the Netherlands and France about the course of the border between the two countries so it cannot be determined by the law of Sint Maarten whether the parcels are legal in Sint Maarten than in France. Why nor can it be judged that the parcels are located in Sint Maarten (and the checks by French gendarmes were therefore carried out in Sint Maarten). The Court also considered that, whether the disputed territory is French or Dutch, the State has no effective control there, and the State has no legal obligation to guarantee the fundamental rights of the appellants. The State can only be expected to try to safeguard those rights. It ruled that, according to the 'demarches' and 'notes verbal through the agreement with France of 2014 regarding the status quo and the consultations that the State is conducting with France, the State has made sufficient efforts to safeguard those rights of the appellants. and prevent imminent infringements. In doing so, the Court also considered that the claims are closely related to questions of national security and foreign policy, in which policy areas the State and the Country have a large scope for policy and assessment. It had not been stated or proved that the State and the Country
have acted outside their policy and discretion, nor that they have not taken Captain Oliver's interests into account.
With regard to Captain Oliver's reproach to the country for forbidding him to carry out work at the marina and the restaurant, the Court ruled that this cannot be successfully sued in this civil action, the alleged construction ban with more durable and resistant material could have been challenged in the court, but it has not been argued or proven that Captain Oliver's has successfully used an administrative legal remedy against the construction ban, so that the minister's possible refusal of VROMI has formal legal effect in this case so that the Court had to assume the lawfulness of this prohibition.
In the introduction to their statement of appeal and with the first ground of appeal, the appellants dispute the Court's judgment that the plots of Captain Oliver's are located in the disputed area.
This argument is rejected. From the 'notes verbal of 7 July 2017, 13 August 2018, and 7 March 2019 submitted by the State in the first instance, but also from the letter of 8 February 2021 from the Minister of Foreign Affairs to the relevant minister of France, it is undeniable that the plots of Captain Oliver's are located in the disputed area. In appeal, the appellants only contest that opinion with their argument that Sint Maarten considered those plots in the past - when granting permits and issuing the plots (in the long lease) to Captain Oliver's - as belonging to its territory, about which (currently:) the country has jurisdiction. These circumstances may indicate that (in the past: the Island Territory of Sint Maarten and now: the Country) considered those parcels as belonging to its territory, but that view is relevant to the question at issue here whether the area concerned is disputed, is of no significance. The fact that respondents, as the appellants still argue, called the French checks at Captain Oliver's illegal, does not change that: in the opinion after all, the defendants committed a violation of the 2014 status quo agreement.
The second and third grounds of appeal are directed against the judgment of the first judge that, insofar as Captain Oliver's claims are based on the assertion that the French authorities have intervened on the territory of the Kingdom of the Netherlands, this proposition is ignored, since this is not established and protection of fundamental rights by a state, other than by way of exception, only takes place on the territory where that state has jurisdiction. If it is assumed that Captain Oliver's is located on French territory, the jurisdiction of the State can therefore only be assumed exceptionally. Apart from the exception - about which nothing has been stated - in that case, the State is not obliged to respect the fundamental rights of the appellant's protection and they can turn to the French courts. If it is assumed that the actions of the French authorities did take place on Dutch territory, then the State, in the absence of effective control, can only be expected to try to guarantee the fundamental rights in the disputed territory. The Court held "that the Kingdom of the Netherlands has made sufficient efforts to safeguard fundamental rights of Captain Oliver's and to prevent imminent infringements. The 'demarches' and 'notes verbale' mentioned in the statement of the facts of this form testifies to this. has the kingdom der Nederland and to avert imminent infringements already made an agreement with France and Saint Martin in 2014 that the existing situation
in respect of the disputed area will be maintained. The Kingdom of the Netherlands is also currently holding talks with France about the to establish final land boundary “This has been finalized and the French authorities have full control of the water and land rights where both businesses are located.”
In the explanation of the second complaint, the applicants misunderstand that the Court of First Instance did not assume that the disputed territory constitutes French territory, but merely examined what would be legal if that were the case. For the rest, the explanatory notes contain only repetitions of those on the first ground of appeal. The complaint therefore fails.
In the explanatory notes to the third ground of appeal, it is denied that the appellants (could have) turned to the French judge. However, the judgment of the Court is correct, since the appellants believe that the French authorities have acted unlawfully. The basis of the denial by applicants is that the French once referred Captain Oliver to the Land when they wanted to build the marina. However, it does not make clear why the appellants could not approach the French courts in respect of the checks carried out by the French authorities.
Incidentally, the appellants have not submitted any document showing that reference.
With the fourth ground of appeal, the appellants dispute the Court's standard applied for the assessment of the alleged unlawfulness of the actions of respondents. It is argued that this standard is incompatible with the obligation of a State to uphold and guarantee the fundamental rights of citizens, as assumed by the Court. To that extent, the ground of appeal fails on the same ground as the previous grounds of appeal.
Insofar as the ground of appeal contests the correctness of the judgment cell that the progress is closely related to questions of national security and foreign policy and that in these policy areas, the State and the Country should be given a broad policy and
discretion is due, the grievance also lacks doe! since that judgment is correct.
The fifth ground of appeal is first of all against the judgment of the Court that in these proceedings the refusal of the Minister of Housing, Spatial Planning and the Environment to permit Captain Oliver to carry out work on the marina and the restaurant, against which Captain Oliver's has not appealed to the decision, has legal force so that civil liability of the Country for that refusal cannot be assumed.
The objections raised by the appellants cannot alter that judgment.
Insofar as the grounds of appeal complains that the Court of First Instance has concluded from all the considerations made above that neither the State nor the Country acted unlawfully towards Captain Oliver's that ground of appeal is only elucidated with the statement that the efforts Respondents would not have been aimed at France respecting the agreements regarding the status quo.
This argument already fails because it is refuted by what has been established in this case about the protests of the State against France and what the State has undertaken to arrive at a border treaty with that country.
With the sixth ground of appeal, the appellants contest what the Court of First Instance. However, these considerations are superfluous, so the complaint cannot lead to the annulment of the contested judgment.
All in all, the Court of Appeal also leads to the judgment that, against the background of the broad discretion and discretion referred to above respondents could reasonably have decided to act as they did. There is therefore no wrongful act.
The enhanced requirement
On appeal, the appellants have conditionally increased their claim with a subsidiary claim, in the event that it is ruled 'that the checks took place on French territory and that no unlawful act was therefore committed because the respondents did not may enter such jurisdiction'.
The appellants demand declaratory judgments
(I) that they paid the Land leasehold canon, license fees, taxes, and social premiums without legal basis, while the Land had no jurisdiction over Captain Oliver's and its business operations; and
(II) that all those payments made by the appellant were not due, with an order from the Country to repay it.
Partly in view of the explanatory notes, this claim must apparently be understood as meaning that it has been brought in the event that it should be held that the Country should not have granted the said permits, should not have levied taxes and social security contributions and should not have exercised the leasehold right. could (or could) have been granted, on the grounds that Captain Oliver's parcels are located on French territory. As is clear from the foregoing, that is not the opinion of the Court.
All grounds of appeal therefore fail, and it is not necessary to rule on the alternative claim. The contested verdict should therefore be affirmed, with the costs of the appeal against the appellants.
