COURT IN FIRST INSTANCE OF SINT MAARTEN
Case number: SXM202000774
Judgment dated March 23, 2021 (in case of advance)
PRO SOUALIGA FOUNDATION,
based in Sint Maarten,
represented by its board members RL Brison and PD Brison,
THE STATE OF THE NETHERLANDS (Ministry of the Interior and Kingdom Relations),
residing in The Hague,
authorized representative: mr. CR Rutte (Sint Maarten) and mr. JWH van Wijk (The Hague),
The parties will hereinafter be referred to as Pro Soualiga and the State.
1 The course of the proceedings
The course of the proceedings
2 The facts
According to the extract from the commercial register, Pro Soualiga was founded on July 24, 2020 with the aim of: “to promote, in the broadest sense, the educational, social, political, constitutional, cultural, economic and environmental development and progress of the people and the country or Sint Maarten. ”
In a letter from Pro Soualiga dated 23 July 2020 to the State Secretary for the Interior and Kingdom Relations, she asked him to consult with her about the possibilities to summarize her position, very briefly: the decolonization process of Sint Maarten has not been completed, judge. Because the State Secretary did not respond within the period of 14 days set by Pro Soualiga, she submitted the claims announced in this letter to this Court.
According to draft articles of association, an extraordinary meeting of the board of Pro Soualiga took place on December 21, 2020 in which it was decided to change the foundation’s purpose, as follows:
The objectives of the Foundation are:
The exploitation of a non-profitable and charitable organization assisting in and offering:
To take court and other legal action in order to promote the right to a full measure of self-government and self determination pursuant to the Charter of the United Nations of St. Maarten, Aruba, Curacao, Bonaire, St. Eustatius and Saba.
To file petitions at the United Nations and other international bodies and countries to achieve the objectives set forth above.
To engage with the government of Aruba, Curacao, Bonaire, Saba and St. Eustatius and St. Maarten and the government of the Netherlands to achieve the objectives set forth above sub 1.
To pursue the decolonization of the above islands, by means of court action against the Dutch State and by presenting the matter of the decolonization of the islands mentioned before the United Nations, other international organizations as well as other countries,
To pursue the removal of the function of governor and the removal of articles 44, 50 and 51 from the Kingdom Charter in order to make the Kingdom Charter United Nations compliant.
To obtain a United Nations resolution for all six islands mentioned above, or for any one, as the case may be, declaring that the right of self-determination has been exercised, that the full measure of self-government has been obtained and that Chapter XI of the United Nations Charter no longer applies. ”
On November 5, 2020, a majority of the Parliament of Sint Maarten passed a motion, which includes the following passage:
“Endorses the initiative and legal actions of Foundation Pro Soualiga related to the decolonization of the former Netherlands Antilles, as well as the private initiative in Curaçao with a comparable objective.”
3 The dispute
Pro Soualiga requests that the General Court, in a judgment declared provisionally enforceable, take the following decisions:
Because the GA refused in resolution 945X to declare that the right of self-determination has been exercised The Statute has been created in violation of the right of self-determination
By analogous application of the State’s position in section 4.8. of his Written Statement The Statute is therefore “ab initio” null and void.
Chapter XI UN Charter still applies to Sint Maarten
The Charter was not drawn up in accordance with “international law”, or at least not “having regard to international law”.
The State is under the obligation to ensure that St. Maarten is included on the UN list of NSGTs.
That the State is under the obligation to complete the decolonization of Sint Maarten in accordance with UN Resolution 65/119 by 31 December 2020 at the latest.
That making use of the Statute is unlawful while the GA has not stated:
a. That the islands have achieved a full measurement of self-government
b. The right of self-determination has been exercised
c. Chapter XI of the UN Charter can no longer be applied to Sint Maarten. ”
The State requests the Court of First Instance to declare Pro Soualiga inadmissible or to dismiss its claims by awarding an enforceable judgment, ordering Pro Soualiga to pay the costs of the proceedings.
The arguments of the parties are discussed in more detail below, insofar as they are relevant to the assessment.
4 The assessment
Inadmissibility due to insufficient interest
The State argues that Pro Soualiga should be declared inadmissible in its claims and substantiates this, briefly and succinctly, as follows. By answer: Pro Soualiga has not demonstrated that it stands up for an own interest, that is to say an interest that is independently protected by the norms on which the claims are based (Article 73 UN Charter and the right of self-determination). Pro Soualiga does not represent the entire population; it is represented by Parliament and the government. It has been neither asserted nor proven that Pro Soualiga is representative of a “(even slightly) defined group of residents of Sint Maarten with a certain political or constitutional view.”(paragraph 2.6. answer). Article 3: 305a paragraph 1 of the Dutch Civil Code requires that the objective that the foundation promotes must be described in its articles of association and that actual activities in this area must be completed. Both requirements are not met. Furthermore, it has not been made sufficiently clear which concrete interests it wants to achieve for the population of Sint Maarten with this procedure. By rejoinder: the motion adopted by Parliament does not imply that the Foundation would be democratically legitimized and would represent the population of Sint Maarten. Only Parliament and the Government can determine this jointly. It is up to these bodies to take actions to realize the right to self-determination, as they see it. The General Court cannot assume that the statutes have been amended because only a draft of these statutes has been submitted. In any case, the change took place too late to make up for the defect in the previous articles of association.
Briefly and succinctly stated , Pro Soualiga responds in its reply as follows to this defense of the State. With the “endorsement” of the States as shown in the motion , Pro Soualiga can rightly claim that it does indeed represent the population of Sint Maarten. It is now democratically legitimized and for that reason can already be received. Its statutes have also been amended.
The Court considers the following. Article 3: 305a of the Dutch Civil Code reads as follows:
1. A foundation or an association may institute legal proceedings aimed at protecting similar interests of other persons, insofar as it represents these interests by virtue of its articles of association.
2. The legal person is not admissible if, in the given circumstances, it has made insufficient efforts to achieve the claims made by consulting with the summoned party.
3.The legal claim cannot serve to pay compensation in cash.
4. An act cannot be the basis for a legal claim as referred to in the first paragraph, insofar as the person affected by this act objects to it.
5.A judicial decision has no effect on a person for the protection of whose interests the legal claim extends, and who opposes the effect of the decision against him, unless the nature of the decision means that the effect is not limited to can be excluded from this person.
For the sake of completeness, it is noted that this article deviates from the regulation in the Dutch Civil Code. It has since been modernized. On Sint Maarten the “old” article applies as it originally stood in the Civil Code of the Netherlands Antilles.
Since Pro Soualiga has not challenged its original statutes, the General Court has to make do with the representation of its statutory purpose as it appears from the trade register (see 2.1.). In the view of the Court, it goes without saying that the statutory description as stated in the trade register is insufficient, because it is formulated much too generally, to be able to support the legal claims brought. Pro Soualiga also sees this because it states that it has now rewritten its statutes. However, the State rightly points out in its rejoinder that only draft statutes have been brought into question by Pro Soualiga. The Court must therefore assume that these articles of association have not actually been drawn up by the civil-law notary and therefore do not exist legally.
Even if the articles of association were laid down by a notarial law, it would apply that they cannot be based retroactively on the legal claims instituted. Article 3: 305a of the Dutch Civil Code does not provide for this.
Furthermore, the aforementioned article implies an obligation to actually develop activities by Pro Soualiga. Such activities are lacking now that Pro Soualiga was founded the day after sending its letter to the Secretary of State. Logically, therefore, there have not been any actual activities before. Nor has any implementation been given to the obligation of paragraph 2 of the aforementioned article of law; the mere writing of a summons letter with a proposal to initiate legal proceedings before the court in a certain way does not meet the concept of “conducting consultations” .
These considerations mean that Pro Soualiga must be declared inadmissible in its claims.
The passed motion in the States
Needless to say, the General Court also pays attention to Pro Soualiga’s argument that, thanks to the adopted motion, she represents the population of Sint Maarten. That argument does not hold. This judgment is interpreted by the Court as follows. The motion is not a (constitutional) legal figure from which third parties, such as Pro Soualiga, can derive rights or which may create obligations for third parties. An adopted motion is no more or less than a decision by Parliament in which it expresses an opinion or a wish. This judgment usually focuses on acts or omissions of the Government that are controlled by Parliament, or it is an appeal by Parliament to the Government as co-legislator to bring about desired legislation. Parliament alone cannot determine that Pro Soualiga is entitled for or on behalf of the Country of Sint Maarten to conduct these proceedings or to take other actions; they can only say that they support it(“Endorse”) . Only if the Government, together with the Parliament, by means of a National Ordinance, or the Government alone (with the tacit consent of the Parliament) by means of a National Decree, decides that Pro Soualiga may act on behalf of the Country of Sint Maarten can it state that it is democratic. is legitimated. This does not alter the fact that Article 44 of the Constitution stipulates that Parliament represents “the entire people of Sint Maarten” . They represent this in the capacity of controller of the government and co-legislator and this article establishes that the States are given power by the entire people. See in this regard the following quote from the Explanatory Memorandum to the Constitution (page 42):
Article 44: Representation
Sint Maarten is a parliamentary democracy. The will of the people is the basis of the authority of the government. This will is expressed in a directly, periodically, freely and secretly elected parliament, the States. Naturally, the provision that Parliament represent the entire Sint Maarten people should not be understood in a private law sense. Parliament does not act on behalf of the Sint Maarten people, as a representative acts on behalf of a representative. From a constitutional point of view, the provision not only expresses that Parliament fulfills a central function in the unified state of Sint Maarten, but also that the members of Parliament may not behave as advocates of local, regional or other interests based on other criteria, but that they stand for the general interest of the entire Sint Maarten people, This provision means that the representation of the Sint Maarten people is not strictly related to the number of electors of the Parliament or to the electoral system on the basis of which the members are elected. In principle, this relationship is regulated in Article 46 of the Constitution. “
Thus, Pro Soualiga cannot claim that it represents the population of Sint Maarten, so that it does not meet the requirements of representativeness of Article 3: 305a BW via this route.
Another defense of admissibility is being brought up by the State, namely that the legal claims instituted are time-barred. However, this is not addressed to the General Court now that the first defense of admissibility is effective. Nor does the General Court assess the substantive arguments of the parties.
As an unsuccessful party, Pro Soualiga will be ordered to pay the costs, as stated in the decision.
5 The decision
declares Pro Soualiga inadmissible in its claims,
orders Pro Soualiga to pay the costs of the proceedings, estimated on the part of the State at nil in disbursements and at NAf. 2,500.00 to the authorized salary and declares the legal costs order enforceable in stock.
This judgment was rendered by mr. AJJ van Rijen, judge, and pronounced in open court on 23 March 2021 in the presence of the registrar.