Lawyer Brison says Kingdom ties not in compliance with UN Charter

By John van Kerkhof

PHILIPSBURG–The Kingdom Charter, which came into force October 28, 1954, is in contravention with the Charter of the United Nations (UN), as it denies the islands of the former Netherlands Antilles (NA) a full measure of self-government, according to attorney-at-law Denicio Brison

He arrived at this conclusion after studying the Kingdom Charter, the UN Charter, as well as a large number of the world organisation’s resolutions. He also studied literature on the subject and spent many hours perusing documents at the UN headquarters in New York and elsewhere in preparation for his doctoral thesis.

All his studies point to one direction: the Kingdom as we know it cannot hold. “The islands should be delivered from the galling bonds of the Kingdom and should be replaced with what I call the Peaceable Kingdom,” Brison says.

“A Kingdom without mutual reproach, scolding and frictions. Would that even be possible? The answer is ‘yes,’ and even without making any changes to the Charter. No complicated legal construction and certainly no arguments, but a Kingdom in which partners interact peacefully and the stumbling blocks of the past are no hindrance anymore. There only are to remain three direct ties between the countries: nationality, foreign affairs and defence. For the rest the partners are to arrange their own existence independently. The biggest winner in this construction? All Kingdom partners. The Netherlands no longer needs to be firm and worry about guarantee functions and governors. The latter will disappear from the stage altogether, while the first become dead letters, only applicable in case of emergencies when a country needs support after a disaster, or something like that,” Brison explains.

‘Missing link’

The crucial factor, or the “missing link” as the lawyer calls it, is Article 103 of the UN Charter, which is also known as the “UN Superior Rule/Norm.” The UN takes a special place among the international organisations, as the High Court of the Netherlands pointed out in April 2012. The European Human Rights Court, as well as the International Court of Justice, both established that the obligations of UN members under the UN Charter always have precedence over any other treaty or regional arrangement.

The Kingdom Charter is one of those treaties. “The answer to this question can be found in UN resolution 747 of November 27, 1953. The Charter of the Kingdom of the Netherlands was submitted to the UN in two languages, English and Spanish. The International Law Commission (ILC), another important legal entity to which the High Court often refers to in its verdicts, also defines ‘treaty’ with the word ‘charter.’ Of these institutions of authority we learn that the Charter is indeed a treaty,” says Brison.

He claims the Kingdom Charter has failed review by the UN’s General Assembly on December 15, 1995. The Assembly adopted two motions with two amendments, from which it emerged that the obligations under Article 73 of the UN Charter were not met.

“The stumbling blocks were the position and function of the Governor, and Articles 43, 44, 50 and 51,” Brison is stating. These articles concern the so-called guarantees or safeguards pertaining to, for instance, legal rights, liberties, and good governance, as well as the annulment of legislative and administrative measures, and the issuance of General Measures of Kingdom Governance.

“They [UN General Assembly – Ed] were of the opinion that these articles were thwarting the islands’ full measure of self-government as laid down in Article 73 of the UN Charter,” Brison says. “St. Maarten never completely decolonized and still enjoys the protection of Article 73 of the UN Charter,” as one of his doctoral thesis’ reads.

Paramount

In Article 73 it is stated that “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: …to develop self-government.”

“It, therefore, is an obligation to the Netherlands and a ‘right’ for the islands. Every time the Netherlands makes use of one of these contested articles there is a conflict between the right granted to the Netherlands under the Kingdom Charter and its obligations under Article 73, which is the obligation to develop self-government. And in such cases, the High Court says, the obligation, and, therefore, also the rights based on the UN Charter, are paramount over the obligations and rights as mentioned in the Kingdom Charter.”

Brison says that Article 73 of the UN Charter also states that the interests of the inhabitants of the territories are paramount. “This means, therefore, that the interests of the inhabitants of the territories have priority over the Kingdom Charter. The word ‘paramount’ does not allow for any other interpretation. Besides, the obligations under the UN Charter are peremptory. There is no room for politics or deviation.”

It is Brison’s conclusion that there is a conflict every time the Dutch Government wants to make use of Kingdom Charter articles 43, 44, 50 and 51. “These articles simply cannot be used. They may remain in the Statute, but do not carry any weight.”

The Hague does not play a role where it concerns the full measure of self-government. “The UN General Assembly is the islands’ discussion partner in this,” Brison is stating. “The General Assembly is the only entity entitled to do this,” says Brison. He points out UN Resolution 945, which is stating that it is the “competence of the General Assembly to decide whether or not a non-self-governing territory has attained the full measure of self-government referred to in Chapter XI of the Charter of the United Nations.”

All this leads Brison to his conclusion that the islands can make use of their right to a “full measure of self-government” and change their own constitutions without interference from the Netherlands. “Through this they can, for instance, abolish the position of the Governor, or put the signing of decisions and ordinances in other hands. With this construction the Dutch Government can let the islands find their own way, and not make the same mistake as in Indonesia. Then, the Netherlands can and may be proud in reference to the UN Charter and justify her new relations with the islands. She will then be acting in total conformity with the UN Charter. There will be peace in the Kingdom.”

Source: The Daily Herald https://www.thedailyherald.sx/islands/67775-lawyer-brison-says-kingdom-ties-not-in-compliance-with-un-charter