Urgent call for Members of Parliament to screen the function of Governor on St. Maarten If members of parliament won’t defend themselves, how can they defend the people?
Dear Members of Parliament:
The continuing debate over screening candidate ministers and candidate minister plenipotentiary is upon us again.
Recall that on November 24, 2020, in the matter brought before the Supervisory Committee charged with overseeing the operation of the VDSM (Veiligheidsdients St. Maarten), the committee, presided by an honorable justice of the Court of First Instance of St. Maarten as prescribed in the Landsverordenining Veiligheidsdienst St. Maarten, ruled that the function of Minister is not a so-called “vertrouwensfunctie” and that therefore the VDSM has no legal basis for conducting any
screening on candidate ministers. Since we are on the topic of screening, it is time to determine if the function and office of the Governor, is itself a violation of overriding international law.
St. Maarten’s peremptory or jus cogens right to self-determination After pointing out to the International Court of Justice that “according to the Kingdom of the
Netherlands, the right of self-determination of peoples is …a permanent, continuing, universal and inalienable right with a peremptory character”1, the Kingdom went on to define the scope of that right.
Scope of the right of self-determination
In paragraph 2.2 the Kingdom stated: “Based on these formulations it must also be concluded that the decisions on the political status and the economic, social and cultural
development is made by the people itself, or their legitimate representatives, not by others.
Moreover, such decisions shall be made in full freedom, without any outside pressure or interference.”
In her letter of July 4, 2022, State Secretary van Huffelen confirmed to Pro Soualiga that: “In case of a conflict between a rule of international law with a peremptory character and national legislation, international law takes precedence over such national legislation.”
1 International Court of Justice, Legal Consequences of the Separation of the Chagos archipelago from Mauritius in 1965, (Request for an advisory opinion) Written Statement of the Kingdom of the Netherlands, February 27, 2018, par. 1.5
The peremptory norm mandate
This formulation by the State Secretary suggests that Parliament therefore has a mandate to screen all laws on St. Maarten to ensure compliance with the “jus cogens” or “peremptory” right to self-determination of the people of St. Maarten.
Is the function of Governor compatible with the “peremptory” right to self-determination?
If, as the Kingdom argues, “the decisions on the political status and the economic, social and cultural development are made by the people itself, or its legitimate representatives, not by others.
Moreover, such decisions shall be made in full freedom, without any outside pressure or interference.” then the question therefore arises if the function of a governor is not in conflict with the tenet that decisions are made by the people itself, not by others. The appointment of a Governor by the Kingdom Council of Ministers therefore appears to be in conflict with this principle. Having a governor appointed by “others” exercising anything other than ceremonial duties, such as exercised by the governor of say, St. Kitts, would appear to be a violation of St. Maarten’s right to self-determination.
Indeed if the decisions on economic, social, and cultural development are made “by the people itself, not by others” it begs the question as to what lawful function is there for a governor or a Kingdom Council of Ministers on St. Maarten.
The obligation of Parliament
As the legitimate representatives of the people of St. Maarten it is therefore incumbent upon Parliament to protect first of all its own integrity, then the right to self-determination of the people of St. Maarten. One way to do so is to follow the suggestion of the State Secretary and screen the function of governor to ensure compatibility with St. Maarten’s right to self-determination as defined by the Kingdom in the Written Statement. This would naturally include screening the
Kingdom Charter, as it too must conform to international law.
The obligation of the Governor
Until there is clarity on the legality of the function and office of Governor, Parliament and the Governor should refrain from any action which might violate international law, such as the peremptory right to self-determination, as he is instructed to in Article 22:2 of the “Reglement voor de Gouverneur van Sint Maarten”.
Sincerely,
Renate Brison.
