The most recent COVID 19 cost-cutting measures of the CFT and State Secretary Knops proposed to the Kingdom government for their meeting of Friday, May 15, 2020, violate human rights, worker’s rights. Furthermore, the COVID 19 cost-cutting measures are contrary to statements of UN officials to respect human rights and especially economic and social rights during the COVID 19 pandemic.
1. Measures violating private sector worker’s rights only in Caribbean countries of the Kingdom
- 20 percent reduction contribution of employees from the private sector receiving the wage subsidy.
- 20 percent contribution of employees by reducing their working hours by 20 percent.
These measures violate the following ILO conventions and recommendations:
- C98 THE RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 ;
- R091 THE COLLECTIVE AGREEMENTS RECOMMENDATION, 1951;
- R092 THE VOLUNTARY CONCILIATION AND ARBITRATION RECOMMENDATION, 1951;
- C154 - COLLECTIVE BARGAINING CONVENTION, 1981
- By the Kingdom government imposing the cuts on the private sector employers and workers this will infringe the rights of the unions to collective bargaining. The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent.
- The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Any such interference would appear to infringe the principle that workers and employers organizations should have the right to
organize their activities and to formulate their programs.
2. Measures violating public sector worker’s rights only in Caribbean countries of the Kingdom
- reducing the salaries in government, salaries at government entities, introduce a solidarity levy or curb other expenditures.
- to reduce the total salary package of Members of Parliament and ministers by 25 percent until further notice,
- to eliminate the indexing for this group.
- all employees in the (semi) public sector, including government-owned companies and government-subsidized organizations, have to take a 12.5 percent cut of the total salary package per July 1 until further notice.
- For this group too, there is no indexing to take place.
- directors and other high-ranking officials within the (semi) public sector, including government-owned companies and publicly financed organizations, cannot earn more than 130 percent of the prime minister’s salary.
- implement the long-overdue increase of the pensionable age for civil servants from 62 to 65 years per July 1, 2020
- replace the end wage regulation by the middle-wage regulation.
These measures violate the following ILO conventions regarding public servants:
- C87 freedom of association and protection of the right to organize convention, 1948,
- C151 - labour relations (public service) convention, 1978 = convention concerning the protection of the right to organize and procedures for determining conditions of employment in the public service;
- C154 - collective bargaining convention, 1981
- By the Kingdom government imposing the cuts on the public sector workers and workers in semi-public or subsidized entities infringes the rights of the unions to collective bargaining. The right to bargain freely with government or privatized management of government-owned companies or subsidized entities with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent.
- The Kingdom government should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers and employers organizations should have the right to organize their activities and to formulate their programs.
3. For both private-sector workers and public sector workers these cost-cutting measures violate the following articles in the International Covenant On Economic Social Cultural Rights:
- Art 2.1 the principle of progressive realization of all economic social cultural rights; cost-cutting measures are regressive measures
- Art 2.2 the non-discrimination principle; by only targeting public sector workers in the Caribbean countries of the Kingdom to pay
for the unemployed and self-employed persons constitutes a proposal to enact geopolitical and racial discrimination in the
State the Kingdom of the Netherlands
- Art 7 the right to just and favorable working conditions; fair wages with equal pay for equal work sufficient to provide a decent living for workers and their dependents; the civil servant salaries and wages are already unequal to the ones in the European part of the Kingdom; cost-cutting measures applied only to public servants in the three Caribbean countries in the Kingdom increase the differences between the salaries in the two parts of the Kingdom which constitutes an act of racial discrimination and apartheid.
4. Measures violating all worker’s and their family members in St Maarten
- age to receive the elderly pension AOV should also increase from 62 to 65 per July 1, with a limited transition arrangement for persons who are 60 or 61 on July 1.
This Measure Also Violates Art 9 The Right To Social Security In Old Age.
- Based on the principle of progressive realization, even though increasing the age to receive an old-age pension in the European part of the Kingdom is already increased, why the old age pension maxima in the Caribbean part also not being made equitable with the one in the Netherlands?
5. All these cost-cutting measures intended to affect only the workers in the Caribbean countries in the Kingdom. These measures do not respect human rights. The State the Kingdom of the Netherlands was forewarned in a letter of an Independent Expert of the United Nations not to use a lack of financial resources argument to implement cost-cutting regressive income measures on workers and respect human rights.
COVID 19 AND HUMAN RIGHTS (April 15, 2020)1
The UN Independent Expert Juan Pablo Bohoslavsky in his letter to the States on April 15, 2020, on COVID 19 and Human Rights said:
- that too often, when discussing human rights and in particular economic, social, and cultural rights, the first argument that comes from those responsible for ensuring their realization, is the lack of financial resources to realize these rights.
- that governments emphasize on the “progressive realization” aspects of economic, social and cultural rights, but omit to look at their core and immediate obligations and the positive obligations of States to generate, adequately allocate and make use of the maximum of their available resources to move as expeditiously and effectively as possible towards the achievement of the full realization of those rights.
- that States should immediately invest in the health sector and medical equipment (including regarding COVID-19) and reinforce social
safety nets and decent incomes.
- that States should also invest in nutrition, housing, education sectors, and local small-scale environmentally sustainable farming and agricultural production.
- This crisis should not be used as an argument to accept new ways of cutting wages and other social rights from jobs, as some firms (and
States) are doing.
- that States should provide financial support to individuals and households in need, through in a first phase, an emergency universal basic income and/or helping employers paying their wage bills, depending on the circumstances, and in a second phase, establishing a solid and universal social security and protection system, allowing for the realization of an adequate standard of living.
- that this approach does not prevent governments from operating as payers of last resort to cover companies’ costs and pay salaries during the crisis if needed. But this policy would be only justified if it is implemented TO AVOID RETROGRESSION IN ECONOMIC AND SOCIAL HUMAN RIGHTS.”
- that States must dramatically increase spending that targets inequalities and poverty caused by the COVID -19 crisis, and not just bail out corporations, banks, and investors without human rights or social conditions attached.”
- “Measures including unconditional cash transfers to maintain an adequate standard of living, provision of emergency shelters, a halt
in evictions and cuts in the provision of electricity and water services must be considered immediately,”
- that private debt payment should be suspended for individuals financially crippled by the health crisis. During this period, these
loans should not bear interest.
1 UN Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights in a publication issued in Geneva on April 15, 2020, in chapter 3 under the paragraph heading “Getting rid of the resource excuse”
Right to development and right to self-governance violated!
The CFT and the Kingdom government are violating the rights to development and the right to self-governance of the countries in the Caribbean part of the Kingdom.
The CFT has proposed cost-cutting measures in the budgets of St Maarten since 10-10-10, which
has resulted in skeleton budgets with insufficient means to realize the development of St Maarten.
Struck by the disaster caused by hurricane Irma and Maria and now by the COVID 19 pandemic the Kingdom government is still the main responsibility for implementation of the Sendai Framework for Disaster Risk Reduction. The National Recovery and Resilience Plan to address the recovery after Irma is financed by the Dutch Trust fund and managed by the World Bank, separate from the annual and multi-annual budgets.
The Sint Maarten Support and Relief Plan (SSRP) to address the COVID 19 social, economic, and financial consequences has not been kept separate from the 2020 budget. The 2020 budget was already approved by CFT before it was presented to parliament. By incorporating the SSRP it in the 2020 budget of St Maarten instead of keeping it a recovery plan separate from the 2020 budget, the CFT, and State Secretary Knops are demanding cost-cutting measures in the plan and insisting on the financing of the plan by savings on cost-cutting measures to be imposed on the active workers in the formal sector of Sint Maarten.
These cost-cutting measures are contrary to commitments the Kingdom made by signing, ratifying international human rights treaties, and respecting democratic decisions of the United Nations General Assembly among which the Sendai Framework for Disaster Risk Reduction.
The CFT proposed the following:
- the St. Maarten Stimulus and Relief Plan (SSRP) – support for the unemployed and self- employed persons, can be financed with the cost-cutting measures in the 2020 budget mentioned before
- St. Maarten still needs to come up with a detailed plan as to how it will further bring down the costs of the SSRP and/or find additional financial coverage for the SSRP within its own budget. St. Maarten is urged to present a document with the proposed saving measures to the CFT
1. The Sendai Framework recognizes that the State has the primary role in reducing disaster risk.2 “It is the primary responsibility of states to prevent and reduce disaster risk, including through cooperation - 19(a).” The State responsibility, however, should be shared with all stakeholders, including local governments and the private sector3. How the responsibility has been shared with local governments in the European part and in
the Caribbean part of the Kingdom?
This principle of the primary role of the State to prevent and reduce disaster risk, articulates the primacy of the state and its institutions in discharging the responsibility to focus on risk, understanding it and taking the necessary measures with the purpose of preventing its creation, reducing it and strengthening resilience by addressing exposure, vulnerability and, when applicable, hazards’ characteristics. It implies that the activities necessary to discharge such “primary” responsibility are fundamental, expected, and required. It points to the fact that preventing and reducing disaster risk is a priority for the state and as such, it needs to be reflected in legislation, policies, strategies, plans, programs, investments, and organizational measures. It also indicates that this responsibility includes the duty to cooperate and seek the cooperation of
2 https://www.preventionweb.net/sendai-framework/sendai-framework-for-drr. The Third UN World Conference on Disaster Risk Reduction was held in Sendai, Japan, from 14 to 18 March 2015. The Sendai Framework was subsequently endorsed by consensus by the UN General Assembly with resolution A/RES/69/283 on 3 June 2015.
3https://www.preventionweb.net/files/46694_readingsendaiframeworkfordisasterri.pdf
other states in order to take the necessary measures to prevent and reduce disaster risk. This principle may be complemented by 19 (g), (i), (j), (k), (l) and (m).
“Sections III, IV, and V of the Sendai Framework are closely interlinked and define what needs to be done by whom and how. In particular, section IV identifies priority actions which are the responsibility of states to implement.
In the discharge of such responsibilities, states can expect, mobilize and utilize the contribution of stakeholders, as articulated in section V. Both states and all other stakeholders are required to implement the priority areas in line with the guiding principles of section III.
Section IV articulates the priority areas along two lines: actions that need to be carried out by each state within national boundaries, and
actions that need to be carried out internationally in cooperation with other states and stakeholders.”4
2. For the Caribbean territories in the Kingdom of the Netherlands, the primary responsibility of the State thus is with the Kingdom government! The Kingdom also has a Treaty with member states and associate members of the Association of Caribbean States about cooperation on natural disasters.5
- What are the legislation, policies, strategies, plans, programs, investments, and organizational measures of the State the Kingdom of the Netherlands to implement disaster risk reduction and management for natural phenomena like hurricane, earthquake and tsunami, epidemic, or pandemic, among others?
- What are the measures the State the Kingdom of the Netherlands has implemented to plan
for, to prevent, to mitigate, to prepare, to respond to a disaster to reduce the risks?
- How is the management structure of disaster risk reduction, especially taken into consideration the constitutional reforms in the Kingdom of the Netherlands?
“The Netherlands apply the Manual on Decision Making Procedures during Crises for Disaster Assistance to the Netherlands Antilles and Aruba”.6 “The authorities in the Caribbean countries of the Kingdom are responsible for their emergency management under the responsibility of the Minister of General Affairs, head of the Disaster Bureau. The national Bureau of the Disaster Coordinator is responsible for the coordination at the practical and political-administrative level. Governors may employ the armed forces for assistance in matters of security and public order by requesting the Commander of the Dutch Navy in the Dutch Caribbean for assistance”.7 How the Kingdom government is
taking care of its primary responsibility?
3. The Sendai Framework for Disaster Risk reduction stipulates also the principle of Protection of persons and their assets while promoting and protecting all human rights including the right to development8 – 19(c).
- This principle requires that in taking all the necessary measures to prevent and reduce disaster risk, states and all other stakeholders promote and protect all human rights.
- Civil and political rights, economic, social and cultural rights, elimination of racial
discrimination and discrimination against women, children, and persons with disabilities’
rights, to mention just a few, have a direct bearing on participation, capabilities,
4 https://www.preventionweb.net/files/46694_readingsendaiframeworkfordisasterri.pdf
5 Santo Domingo de Guzman, applicable since April 17, 1999, until today
6 Letter of the State Secretary of Interior Affairs June 21, 2000, to the Second Chamber. Note relief after hurricane and progress emergency management and rebuilding program in connection with hurricane Lenny, char. KR00/U68855
7 Disaster Management on the Netherlands Antilles and Aruba, paragraph 4.5 on page 26 of The Netherlands Red Cross report with an analysis of Dutch legislation and policy in light of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (the so-called IDRL Guidelines): “Legal Aspects of International Disaster Response in Dutch Emergencies and Crisis Situations” – The Hague, 2020.
8 https://www.ohchr.org/Documents/Issues/Development/DeclarationRightDevelopment_en.pdf
vulnerabilities, resilience, the possibility of taking risk-informed decisions, accountability, etc. and thus on disaster risk reduction.
Declaration on the Right to Development
Article 1.1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
Article 3 1. States have the primary responsibility for the creation of national and international conditions favourable to the realization of the
right to development.
As illustrated before the measures imposed only on workers in the Caribbean part of the Kingdom are discriminatory and constitute a regressive instead of progressive realization of the economic social
and cultural rights acquired. By the way, the realization of economic and social, cultural rights in the Caribbean part of the Kingdom is not yet equal to the realization of these rights in the European part of the Kingdom. Regressive measures only increase the gap in the equitable realization of these rights in the Kingdom of the Netherlands.
4. The following statements of United Nations Human Rights officials clearly establish the obligation of the Kingdom government to address the disasters with respect for the realization of human rights.
UN CHIEF WARNS GOVERNMENTS TO HEED HUMAN RIGHTS IN CORONAVIRUS RESPONSES (23 April 2020)9
U.N. Secretary-General Antonio Guterres said the coronavirus outbreak is “fast becoming a human rights crisis.” In a statement Thursday, he called on governments to ensure that health care is available and accessible to all people, that economic aid packages help those most affected, and that everyone has the ability to obtain food, water, and housing.
COVID-19: EXCEPTIONAL MEASURES SHOULD NOT BE COVER FOR HUMAN RIGHTS ABUSES AND VIOLATIONS. (27 April 2020)10
As Governments face the formidable challenge of protecting people from COVID -19, UN High Commissioner for Human Rights Michelle
Bachelet has called on them to ensure human rights are not violated under the guise of exceptional or emergency measures.
COVID-19 GUIDANCE (13 May 2020)11
Respect for human rights across the spectrum, including economic, social, cultural, and civil and political rights, will be fundamental to the success of the public health response and recovery from the pandemic.
Emergency Measures
Governments have to take difficult decisions in response to COVID-19. International law allows emergency measures in response to significant threats – but measures that restrict human rights should be proportionate to the evaluated risk, necessary and applied in a non- discriminatory way. This means having a specific focus and duration and taking the least intrusive approach possible to protect public health.
5. The Kingdom of the Netherlands has a moral obligation to implement the Declaration on the Right to Development signed by the Kingdom of the Netherlands in 1986.
The ratification of the International Covenant on Civil and Political Rights as well as the International Covenant on Economic Social and Cultural Rights since 1979 provided a legal obligation to an equal realization of human rights for the people in the Caribbean part of the
Kingdom just as the people in the European part of the Kingdom.
9 https://www.voanews.com/covid-19-pandemic/un-chief-warns-governments-heed-human-rights-coronavirus-responses
10 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25828&LangID=E
11 https://www.ohchr.org/EN/NewsEvents/Pages/COVID19Guidance.aspx
Article 5 of the Declaration on the Right to Development stipulates: “States shall take resolute steps to eliminate the massive and flagrant violations of the human rights of peoples and human beings affected by situations such as those resulting from apartheid, all forms of racism and racial discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-
determination.
Article 8 1. States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.
The skeleton budgets of the countries in the Kingdom, like the ones from St Maarten since 10-10-10, have not budgeted the full and equal realization of human rights in this territory of the State the Kingdom of the Netherlands. The recent cost-cutting measure proposals to address the effects of COVID
19 in the Caribbean countries in the Kingdom are measures contrary to the realization of the right to development, and do not eradicate but increase all social injustices in the Kingdom of the Netherlands.
6. All colonial people have the right to a full measure of self-governance according to art 73 of the Charter of the United Nations. But the people of the Caribbean islands in the Kingdom of the Netherlands have not yet obtained a full measure of self-government. As a matter of fact, the people of the islands still have limited sovereignty. Compared with the degree of autonomy the people of the Netherlands Antilles had, the constitutional status of the islands do not provide them an equal status in the Kingdom of the Netherlands. The responsibility of the Kingdom of the Netherlands as a member state of the United Nations is clearly outlined in the following articles of the Charter of the United Nations.
Article 73
1. Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet
attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against
abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary- General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectivel y responsible other than those territories to which Chapters XII and XIII apply.
Article 74
Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.
The Kingdom is a member state since 1945. Are the decisions and measures being taken by the Kingdom government in The Hague in 75 years (three-quarters of a century) and the most recent measures and instructions were given to the islands in the Caribbean complying with what is expected from the Netherlands as a member state of the United Nations?
State obligation vs autonomous country obligation to realize human rights!
1. The constitutional reforms in the Kingdom of the Netherlands were internal changes within the State the Kingdom of the Netherlands, but with no consequences for the implementation of international treaties in the territories of the Kingdom of the Netherlands.12
Note 1.
By a communication received on 30 December 1985, the Government of the Netherlands informed the Secretary-General that “the island of Aruba which was a part of the Netherlands Antilles would obtain internal autonomy as a separate country within the Kingdom of the Netherlands as of l January 1986". The said change would have no consequence in international law. The treaties concluded by the Kingdom which applied to the Netherlands Antilles, including Aruba, would continue, after 1 January 1986 to apply to the Netherlands Antilles (of which Aruba is no longer a part) and to Aruba.
Note 2.
By a communication received on 11 October 2010, the Government of the Netherlands informed the Secretary-General that "[t]he Kingdom of the Netherlands currently consists of three parts: the Netherlands, the Netherlands Antilles, and Aruba. The Netherlands Antilles consists of the islands of Curaçao, Sint Maarten, Bonaire, Sint Eustatius, and Saba.
With effect from 10 October 2010, the Netherlands Antilles will cease to exist as a part of the Kingdom of the Netherlands. From that date onwards, the Kingdom will consist of four parts: the Netherlands, Aruba, Curaçao, and Sint Maarten. Curaçao and Sint Maarten will enjoy internal self-government within the Kingdom, as Aruba and, up to 10 October 2010, the Netherlands Antilles do.
These changes constitute a modification of the internal constitutional relations within the Kingdom of the Netherlands. The Kingdom of the Netherlands will accordingly remain the subject of international law with which agreements are concluded. The modification of the structure of the Kingdom will therefore not affect the validity of the international agreements ratified by the Kingdom for the Netherlands Antilles: these agreements, including any reservations made, will continue to apply to Curaçao and Sint Maarten.
The other islands that have until now formed part of the Netherlands Antilles – Bonaire, Sint Eustatius, and Saba - will become parts of the Netherlands, thus constituting ‘the Caribbean part of the Netherlands’. The agreements that now apply to the Netherlands Antilles will also continue to apply to these islands; however, the Government of the Netherlands will now be responsible for implementing these agreements. In addition, a number of the agreements that currently apply to the Netherlands are hereby declared applicable, from 10
October 2010, to this Caribbean part of the Netherlands. The agreements concerned are listed in the Annex which also includes a declaration, regarding the International Covenant on Civil and Political Rights, on the modification of the internal constitutional relations within the Kingdom..."
2. All international treaties ratified by the Kingdom have applicability in all territories of the Kingdom regardless it's constitutional makeup (so whether the territory is called “extraordinary municipality,” or “autonomous country within the Kingdom”) according to art 29 of the Vienna Convention on the law of Treaties.13
Article 29. TERRITORIAL SCOPE OF TREATIES Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.
3. State arrangement of Sint Maarten (Staatsregeling Sint Maarten) 14 in art 81b establishes that all international treaties ratified by the Kingdom are applicable for Sint Maarten as legal regulations unless exception is made when ratifying the regulation. (see Treaty Database of the Kingdom of the Netherlands 15)
HOOFDSTUK 6 Wetgeving en bestuur
- 1. Algemene bepaling over wettelijke regelingen
Artikel 81
De geldende wettelijke regelingen in Sint Maarten zijn:
12 https://treaties.un.org/Pages/HistoricalInfo.aspx?clang=_en
13 https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en#EndDec
14 http://decentrale.regelgeving.overheid.nl/cvdr/images/Sint%20Maarten/i240625.pdf
15 https://verdragenbank.overheid.nl/
a.het Statuut voor het Koninkrijk der Nederlanden;
b.overeenkomsten met andere mogendheden en met volkenrechtelijke organisaties, voorzover zij voor Sint Maarten bekrachtigd zi jn;
c. rijkswetten en algemene maatregelen van rijksbestuur die volgens het Statuut voor Sint Maarten verbindend zijn;
d.deze Staatsregeling;
e.onderlinge regelingen als bedoeld in artikel 38, eerste lid, van het Statuut, voor zover door een bevoegd orgaan van Sint Maarten daaraan wettelijke kracht is verleend;
f.onderlinge regelingen als bedoeld in artikel 38, tweede lid, van het Statuut;
g.landsverordeningen, waaronder tevens begrepen de eenvormige landsverordeningen;
h.landsbesluiten, houdende algemene maatregelen;
i.ministeriële regelingen;
j.verordeningen van openbare lichamen, als bedoeld in artikel 97, tweede lid, en zelfstandige bestuursorganen, als bedoeld in artikel 98, tweede lid.
4. Constitutional responsibilities vs State responsibilities
Referring to Art 43 of the Charter of the Kingdom that the realization of human rights is a country affair, does that mean that the Kingdom government is not any longer responsible as State party to all human rights treaties, to realize the human rights in the Caribbean parts of the Kingdom on an equal footing with the European part in the Kingdom?
The Kingdom's government has to guarantee human rights.
Does this mean that the countries in the Kingdom are autonomous and that they autonomously have to address the disasters as if they are states? Does this mean that they autonomously have to realize the human rights with all the skeleton budgets and cost-cutting measures imposed by the Kingdom government?
34 years passed after ratification of the International Covenant on Economic Social and Cultural Rights inequality in economic social and cultural rights (unequal social protection floor, poverty) as well as inequality in civil and political rights (democratic deficit) is still predominant in the Kingdom government.
5. Constitutional differences in the Kingdom (“extraordinary municipality”, “autonomous country within the Kingdom”) constitute a political, jurisdictional status of limited sovereignty.
As a consequence or affect the people in the Caribbean part of the Kingdom are being hindered or limited in realizing their human rights on an equal footing to the people in the European Netherlands.
The people of the Caribbean Netherlands (Bonaire, Saba, Statia) are being kept as second class citizens in the Kingdom, and the people in the Caribbean countries within the Kingdom (Curacao, Aruba, Sint Maarten) are being kept as third-class citizens in the Kingdom.
Article 2. Universal Declaration of Human Rights
1. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or other status. 2. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 1 of the Convention on Elimination of all Forms of Racial Discrimination (Kingdom Signed: 1966, Ratified: 1971) 1. In this
Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 4. Special measures are taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the
maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
The constitutional difference is de facto a ground for discrimination in the realization of human rights, which is prohibited according to art 2 of the Universal Declaration on Human Rights. We can label this other status ground of discrimination as “geopolitical distinction ” in the State the Kingdom of the Netherlands.16
16 https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en#EndDec
THE BUDGET SHOULD REFLECT POLICIES TO REALIZE HUMAN RIGHTS!
1. Art 100 of the State arrangement of Sint Maarten (Staatsregeling Sint Maarten) 17 establishes that the budget of receivables and expenditures should be balanced, but we can deviate from the balanced budget norm in connection with the recovery of damage caused by extraordinary events, among which natural disasters. This was the case with hurricane Irma and Maria. This is also the case with the COVID 19 pandemic.
Artikel 100
- 1.De begroting van de ontvangsten en de uitgaven van het Land wordt bij landsverordening vastgesteld.
- 2.De jaarbegroting en de meerjarenbegroting zullen sluitend zijn. Indien dit nodig is in verband met het herstel van schade veroorzaakt door buitengewone gebeurtenissen, waaronder natuurrampen, kan volgens regels gegeven bij of krachtens rijkswet of landsverordening, worden afgeweken van de eerste volzin.
2. Art 3 para 1 of the National Accountability Ordinance (Landsverordening Comptabiliteit) 18 establishes that all receivables and expenditures should be based on legal regulations (referred to in art 81 of the State arrangement of St Maarten).
So the expenditures to realize all human rights stipulated in ratified international treaties according to art 81b also have to be budgeted. These should be budgeted, in order to be realized on a non- discriminatory way throughout the Kingdom of the Netherlands, with the same equitable norms as in the Netherlands. The objective should be to achieve for the people of St Maarten as a minimum the same human development index as the people of the Netherlands have achieved and as a maximum what they are striving to achieve.
Artikel 3
1.Behoudens het tweede en derde lid, wordt het stelsel van baten en lasten, op basis van wettelijke aanspraken op en door derden, als verslaggevingstelsel gehanteerd.
3. Art 4 para 2 of the National Accountability Ordinance (Landsverordening Comptabiliteit) speaks explicitly about cooperation means of the Netherlands, which have to be separately estimated as receivables and expenditures!
Cooperation means refer to financial means (grants or loans) to finance the expenditures estimated
to comply with all legal arrangements mentioned in art 81 of the State arrangement of St Maarten.
Artikel 4
1.Alle baten en lasten, voor alle entititeiten in de collectieve sector met uitzondering van die in de sociale zekerheid, worden geraamd en verantwoord tot hun brute bedrag onder het ministerie of adviesorgaan waaronder die entiteit ressorteert.
2.Samenwerkingsmiddelen van Nederland ontvangen worden separaat als bate en last geraamd en verantwoord, waarbij de uitgaven naar functie worden ingedeeld.
4. The Committee for Financial Supervision (CFT) and the Kingdom government do not respect neither human rights nor the right to development.
Since 10-10-10 they have been proposing and imposing (instructions) cost-cutting measures to balance the budgets of the countries in the Caribbean part of the Kingdom, which resulted in 9 years
of skeleton budgets instead of right to development budgets.
17 http://decentrale.regelgeving.overheid.nl/cvdr/images/Sint%20Maarten/i240625.pdf
18 https://decentrale.regelgeving.overheid.nl/cvdr/XHTMLoutput/Actueel/Sint%20Maarten/156293.html
The CFT and State Secretary Knops again are proposing the Kingdom government to impose cost-cutting measures on the Caribbean countries of the Kingdom as a condition to get liquidity support. Again the CFT and the Kingdom government by doing so are not treating the citizens and especially businesses and workers in the Caribbean part of the Kingdom the same way as in the Netherlands in this COVID 19 pandemic.
5. To achieve progressively the full realization of all economic, social, and cultural rights adopting a budget based on the human rights-based right to development policies are “appropriate means”. This budgeting to achieve a non-discriminatory equitable realization of all human rights has to be
done with the maximum of the available resources of the State party. All of this is according to art 2 par 1 of the International Covenant on Economic Social and Cultural Rights!19
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the presents Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.
6. All capital investments, as well as current expenditures estimates, should be in the budget and finance not only with tax income or retributions of St Maarten but also with cooperation means of the Netherlands to the maximum of the available resources in the State.
To realize a balanced budget for St Maarten based upon the equal treatment principle all citizens of the Kingdom in the Caribbean territories in the Kingdom should receive all these cooperation means as a grant.
Just as the citizens in the Netherlands are not being charged interest for realizing their basic human rights, so also the St Maarten citizens should not be penalized with loans and interest to comply with all legal arrangements mentioned in art 81 of the State arrangement of St Maarten.
7. With St Maarten being a territory in the State has limited resources, the Minister Plenipotentiary as a member of the Kingdom Council of Ministers upon the instruction of the Council of Ministers of St Maarten has to request and defend the equal human rights realization for the people of St Maarten in all measures and decisions to be taken by the Kingdom government.
Nature of State parties obligations - CESCR General Comment 3 (1990) on Art 2 (..) “to take steps” (…)
- Thus while the full realization of the relevant rights may be achieved progressively,
- steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned.
- Such steps should be deliberate, concrete, and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.
=> Since 1979 until now is 41 years is certainly not a reasonable short time (5 years should be the maximum)
8. The government of St Maarten, the Parliament of St Maarten, the CFT and the Kingdom government all have to respect human rights and the right to development of the people in the Caribbean part of the Kingdom to achieve an equal human development level in the Kingdom of
the Netherlands. No more skeleton budgets but Right to Development budgets!
19https://www.ohchr.org/EN/professionalinterest/pages/cescr.aspx
