GREAT BAY--Nearly three years after St. Maarten and France signed an agreement intended to finally establish a precise legal boundary between the northern and southern sides of the island, the treaty is moving through the final stages required before it can enter into force.
The Permanent Committee of Kingdom Affairs and Inter-Parliamentary Relations (CKAIR) of the Parliament of St. Maarten is scheduled to discuss the proposed Kingdom Act approving the border treaty on Wednesday, August 12.
The discussion comes at an important stage in a process that has moved at different speeds on the French and Kingdom sides. France has now completed its parliamentary approval of the agreement, while approval within the Kingdom of the Netherlands remains pending. St. Maarten Parliament is not being asked to independently ratify the treaty. Its consideration forms part of the formal Kingdom legislative procedure through which the country can examine and provide input on a proposed Kingdom Act that directly affects St. Maarten.
The treaty was signed at Belle Plaine/Belvédère on May 26, 2023, by then Prime Minister Silveria Jacobs on behalf of the Government of the Kingdom of the Netherlands and French Interior and Overseas Minister Gérald Darmanin on behalf of France. Its purpose is to establish a precise boundary between St. Maarten and Saint-Martin, connecting the eastern and western endpoints previously established under the countries' 2016 maritime boundary agreement.
The Kingdom Act is required because the treaty formally establishes an international boundary of the Kingdom. Although the physical boundary concerns St. Maarten and Saint-Martin, the Dutch explanatory memorandum states that the agreement is considered to apply to the Kingdom as a whole because it determines a boundary of the Kingdom.
Wednesday's discussion therefore comes before the Kingdom has completed its approval. Under the Kingdom legislative procedure, proposed Kingdom Acts are submitted to the Dutch States General and simultaneously transmitted to the Parliaments of Aruba, Curaçao and St. Maarten when applicable. The Parliament of the country concerned is entitled to examine the proposal before its public consideration in the Dutch House and may submit a written report.
The CKAIR discussion on Wednesday should not be interpreted as St. Maarten Parliament being asked to sign or independently ratify the border treaty. Rather, Parliament is being given its formal opportunity within the Kingdom legislative process to scrutinize an agreement that will directly affect St. Maarten's territory, laws, property administration, border management and relations with the French side.
The distinction is also important because the Government of St. Maarten was already involved in negotiating the treaty before it was signed in 2023. The current stage provides the elected Parliament of St. Maarten with its own opportunity to consider the Kingdom legislation required to complete the approval process.
If the Kingdom approval process is completed and both parties subsequently exchange the notifications required under Article 17, the agreement will finally take legal effect, providing a formally agreed boundary for an island whose division between the French and Dutch sides dates back more than 378 years.
Once the treaty enters into force, a joint border commission will be established to oversee its implementation, maintenance and continued documentation.
According to the Dutch explanatory memorandum, the commission will comprise three representatives from each party, with both sides able to bring in additional experts. It will oversee matters including border markers, maintenance plans, inspections and technical issues arising from implementation. Meetings are to alternate between the Kingdom and France and take place at least once annually when requested by either delegation. Decisions require unanimity.
If the commission cannot resolve an issue, it can be referred to the foreign affairs ministries of the Kingdom and France for further consultation. The treaty separately commits both parties to pursuing additional agreements governing cross-border cooperation, particularly mechanisms that operate at the local St. Maarten and Saint-Martin level.
Dutch authorities have also acknowledged that implementation will not be accomplished entirely at the Kingdom level. The explanatory memorandum states that local legislation in St. Maarten will have to give effect to aspects of the treaty where necessary, particularly where the agreement creates rights or obligations affecting individuals, businesses and property owners.
What the treaty actually does
The agreement goes considerably further than drawing a line on a map. It sets out the geographical coordinates of the border, including 15 points through the Oyster Pond area and hundreds of coordinates along the land boundary. It connects that boundary to the eastern and western maritime endpoints established under the 2016 agreement.
Oyster Pond is formally designated as internal waters, while vessels of all nationalities retain a right of innocent passage. Dutch and French vessels are also guaranteed reciprocal rights in both Oyster Pond and Simpson Bay Lagoon, subject to the laws applicable on each side, including access, navigation, anchoring and traditional small-scale fishing.
The treaty also establishes rules for maintaining and identifying the border. Existing physical features, including walls, monuments and roads, can be used as border markers. In areas where access is necessary for maintaining the boundary, a strip of up to four meters, two meters on either side, may be kept clear of vegetation. Maintenance costs are generally to be shared equally by the parties.
New construction would generally not be permitted within two metres on either side of the boundary, although exceptions could be agreed in particular circumstances. Existing legally constructed buildings are protected, but reconstruction or major alteration would have to comply with the rules established under the treaty and the applicable laws of the side on which the property is located.
The agreement contains specific protections for people and companies whose legal or economic circumstances change because of the newly formalized boundary. Acquired rights are to be respected, and affected economic activities can continue subject to the laws of the territory under which they fall. Properties that must be moved from one cadastral, mortgage or other official register to another are to be registered with the competent authority within two years after the treaty enters into force.
The parties are also required, as far as possible, to regularize affected personal, corporate and administrative situations within 12 months of the agreement taking effect.
A boundary dating back to 1648
The need for a modern boundary agreement stems from a centuries-old uncertainty. The Treaty of Concordia, signed on March 23, 1648, divided the island between France and the Dutch Republic but did not establish a precise boundary line. Dutch explanatory documents accompanying the current legislation state that no subsequent agreement ever comprehensively settled the exact course of the border.
For much of the island's history, that ambiguity did not lead to significant problems. Oyster Pond, however, became a major point of disagreement. The Kingdom maintained that the entire water area belonged on the Dutch side, while France argued that the boundary should run through the middle of the bay based on equidistance between the two shores.
The dispute took on greater practical significance because of development at Oyster Pond, including the marina and the former Captain Oliver's operation. French government documentation shows that Dutch-side permits had historically been issued for development in the area and that questions over which country's law and administrative authority applied became increasingly difficult, particularly following Hurricane Irma and attempts to reconstruct damaged infrastructure.
France and the Kingdom had already reached agreement in 2016 on portions of their maritime boundary in the Caribbean, but Oyster Pond was deliberately left unresolved because their positions remained too far apart. Negotiations on the island boundary continued separately.
French records show that legal consultations took place as early as October 2015. Technical and geographic work continued in subsequent years, including a French expert mission in 2019. In 2021, the Kingdom shifted its position on Oyster Pond and accepted the principle that the waters would be divided based on equidistance. Technical discussions then accelerated, with the historical Werbata map and physical features such as old stone walls used to help determine the land boundary.
A formal negotiating round was held in September 2022, producing agreement on the boundary. The Dutch explanatory memorandum states that the eventual settlement divides Oyster Pond along a median line. It also notes that, as a consequence of the agreed boundary, reconstruction of the marina falls on the French side. The Kingdom accepted the Oyster Pond settlement as part of a broader agreement on the remaining sections of the boundary.
Importantly for St. Maarten, the Dutch government states explicitly that the boundary agreement was reached with the active involvement of St. Maarten, since it directly concerns the territory of the country.
