NO DISPUTE MECHANISM, NO DEMOCRACY IN THE KINGDOM

The Dutch have a saying that perfectly makes the case for an independent settling of grievances between parties: “The butcher cannot approve his own meat”.Yet the Dutch, normally highly in favor of democratic principles and the rule of law everywhere else in the world, are dragging their feet to accept a dispute resolution mechanism (DRM) in their own neck of the woods, the Kingdom of The Netherlands (the Kingdom). The DRM is not a luxury or frivolity, but a cornerstone of democracy. Disputes are about broken promises. Without a means of settling disputes, there is no way to enforce the rules of the game, in this case the authorities of the self-government of Curaçao and those of the Kingdom. Without it the powerful will have no incentive to abide by the agreed promises and will always impose their will unilaterally. This is why the government of Curaçao should continue its fight for a DRM even if The Hague is not interested in good governance.

The case for a Kingdom Dispute Resolution

The raison d’être of a DRM is good governance. It’s about the importance that all partners within the Kingdom should attach to complying with their obligations. It’s also about mitigating imbalances between the stronger and weaker Kingdom partners by having the possibility of a rules-based dispute settlement rather than having power determine the outcome. And this is what the politicians in The Hague fail to see over and over again. The Dutch politicians during the period I was Member of Parliament of Curaçao, never shied away from reminding everyone that the population of The Netherlands is 17 million compared to less than the 300,000 of Aruba, Curaçao and Sint Maarten. There is no question that they are right about the numbers but do they realize that they are implying that somehow the less powerful should not be able to question the more powerful if they believe rules have been violated? If that were the case, why did The Netherlands fight for a World Trade Organization (WTO) rules-based and independent dispute settlement system? It could have easily agreed to have all disputes settled by the big boys of trade. And by all means, in that world The Netherlands is only a toddler. Fact is that The Hague does not want a DRM. Using the size argument illustrates lack of seriousness and probably adherence to some yesteryear colonial grandeur. And should there ever be a DRM, this must, according to these politicians, be in the hands of an institution linked to the government of The Netherlands. Adding insult to injury, they feel that the decisions reached by this inherently partisan institution should not be binding either; the final decision is always with the Government in The Hague.

A dispute resolution mechanism in countries with the same status as Curaçao, is not unknown. An example is the dispute resolution mechanism of the Kingdom of Denmark. Article 6 of the Act on Greenland Self-Government makes it possible when doubts arise between the Greenland Self-Government authorities and the central authorities in Denmark concerning the Self-Government authorities’ responsibility in relation to the central authorities in Denmark, for an independent board to settle these.

Dispute Resolution Mechanism

Whether Curaçao disputes it or not, it is The Hague that unilaterally decides if a decision is in accordance or not with the relevant rules. There is no way Curaçao can take recourse to any dispute settlement process. This is a blatant abuse of power and lack of respect for the rule of law. Below I make the case – not an exhaustive list by any means – for an independent and binding DRM.

Independent and binding.The DRM should be independent beyond a shadow of doubt. Independence is necessary in order to dispel any direct or indirect undue influence or even a reasonably believed possibility of undue (political) influence in the dispute trajectory. The government in The Hague has however been insisting that the dispute settlement should be in the hands of the Council of State which is an advisory body for both the governments of The Netherlands and the Kingdom. According to this proposal, the Council of State could very well be advising (since The Hague does not want any binding decisions) on a dispute between partners of the Kingdom that has arisen based on a decision that came into being after the same Council of State had previously agreed with. The President of the Council of State is also the reigning monarch of the Kingdom. Not exactly trias polica. And during the last century, every single vice-president of this council was a (ex) politician of The Netherlands. The Council of State is by no means independent. I am arguing for the creation of a Dispute Resolution Court (the Court) since there is no single existing independent institution that can settle disputes in a binding manner. Each partner of the Kingdom should nominate an equal amount of representatives to the Court. There should be high education, experience and integrity standards for these representatives. The President of this court must be a member of the Supreme Court.

Binding. Decisions pertaining to dispute settlement of the Court should be binding and cannot be influenced or (partially) changed by either of the disputing parties’ governments. No meddling and no ‘final word’ should be in hands of governments. If not, arbitrariness, not predictability will reign.

Predictability. A central objective of the Court is to provide predictability. This means that all partners in the Kingdom must have the insurance that what they consider to be a broken promise by the other is looked at independently, that agreements get enforced and that disputes are settled in accordance with the rules-based principals. The Court should be bound by its own precedents and decisions. This is necessary to safeguard against any kind of arbitrariness and subjectivity (depending on who happens to be in government). Predictability also strengthens the understanding and interpretation of existing rules.

Scope. The Court should be in the first place limited to disputes related to the autonomous authorities belonging to the governments of Curaçao, Aruba or Sint Maarten and the governments in The Hague. A dispute in this case concerns either the interpretation or application of the above-mentioned authorities. All disputes so far have been between the Kingdom government and either Curaçao, Aruba or Sint Maarten. It is however not inconceivable that disputes may arise between the individual partners (for example Curaçao v. Sint Maarten; The Netherlands v. Aruba or Sint Maarten and Aruba v. Curaçao). For that reason I believe that the Court should (maybe in a second and later phase) also settle any dispute that falls within the above-mentioned scope that could arise between two or more Kingdom partners.

Consultation. Every effort should be made to avoid a case be brought to the Court. The first stage in a dispute must be a consultation process. The Kingdom partner(s) who feel(s) aggrieved by the action or omission of the other(s) should request the latter to have consultations. The consultation process i.e. how the request for consultation should be done, how many days the Kingdom partner to whom the request for consultation is addressed, has to respond, etc., should be clearly described.

And finally, it is never safe to eat any meat that has not been independently checked. It should be clear that there can be no rule of law if the party that feels aggrieved by the actions or omissions of another cannot challenge these actions or omissions. The fact that the politicians in The Hague do not believe in the rule of law and good governance should not stop us from pursuing a DRM.

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