Dutch-American Friendship Treaty back in court – Minister Duncan wants limits to equal rights for AmericansPOSTED: 08/28/12 12:15 PM
St. Maarten – The Justice Ministry is close to completing an in-depth study of the Dutch-American Friendship, Commerce and Navigation Treaty of 1956. Based on the findings, Minister Roland Duncan plans to write a narrower definition of two terms in this treaty with the apparent objective of making it more difficult for American citizens to call on it for obtaining residency in St. Maarten.
Yesterday the administrative court heard three cases of Americans who wish to be admitted to St. Maarten by right. Judge René van Veen will pronounce his decision on September 11.
Tina Marie Abbott, co-owner and director of Michael’s Day Cruises NV, a company that exploits the floating bar Lady C in Simpson Bay had received four times a temporary residence permit. Abbott pointed out to the authorities on July 13, 2010 that it were incorrect if she had to ask again for an temporary permit and she asked to honor her right to be admitted by right.
The government took its time: almost ten months later, on April 1, 2011 Abbott’s request was denied. She filed an objection against this decision the following month.
Claire Lorraine Talmi-Zarrelli and her husband Shai went though similar procedures. On May 20 of last year the Talmi’s filed an appeal against the refusal by the Justice Ministry to admit them by right. On December 19 of last year the court ordered the ministry to take a decision about the appeal. On February 20 of this year, the ministry declared the appeal inadmissible and refused to admit the Talmi’s by right. The couple appealed the decision.
Ricardo Perez and his family are also waiting for admittance by right.
Duncan motivated the refusal by conceding for the first time that the Friendship Treaty is directly applicable in St. Maarten. “The minister reconciles to the treaty’s direct application.”
Like in Abbott’s case, the minister then pointed out that the treaty gives equal rights to American citizens and European Dutchmen, but that these rights are not unlimited.
Those limitations are that an American has equal rights if he wants to do business in St. Maarten, if he wants to invest a significant amount in a company, or if he wishes to stay here for other purposes.
Attorney Stefan Fox, the attorney for the Talmi’s, told the court that the minister’s decision to deny admittance by right “goes against the law, the treaty and the general principles of good governance.”
mr. Fox pointed in particular to the treaty’s stipulation that Americans have equal rights to European Dutch if they wish to stay on the island for “other purposes.” They only have to show a statement of good behavior, that they have housing and that they have sufficient means to support themselves.
mr. Fox told the court that the Talmi’s have invested in two companies (an accountant firm and an internet company). “They have invested thousands of dollars. Years ago the local government gave them the opportunity to invest by issuing residence permits. They also received permits to act as the directors of their companies.”
The last residence permit the couple received is dated February 10, 2011 and it has in the meantime expired, while a new permit has not been issued yet. This has led to uncertainty, mr. Fox said.
Tina Marie Abbott finds herself in a similar situation. “There is no doubt in her mind that she has the same rights as European Dutch,” her attorney mr. Elvia Moenir-Alam told the court.
The attorney for the Justice Ministry, mr. Amador Muller did not submit a pleading, but made a brief statement. mr. Muller referred to the explicit limitation in the Friendship Treaty. “That is the crux,” he said. “But what is significant and what are other purposes? The minister is working on an interpretation for those terms. An extensive study of the topic has almost been completed and when that is done the minister will soon announce a general policy.”
mr. Muller asked the court to postpone the hearing for at least six weeks to give Minister Duncan the opportunity to complete the policy. “Then we will be able to present a motivated decision,” he said.
mr. Wim van Sambeek, the attorney for Ricardo Perez noted that Minister Duncan had already announced this new policy in a letter dated September 12, 2011. He also told the court that Perez’ request has to be assessed based on current policy and not on a policy in the making. “The minister is apparently already working for a year on this new policy, and a year ago he said that the policy was almost completed. Such repeats do not contribute to the credibility of the minister’s statements. They are reason to ask the court to impose a penalty. Perez realizes that he has not explicitly asked for a penalty but is of the opinion that the court could take such a decision and should take such a decision, considering the minister’s tarry.”
Judge van Veen did not immediately honor the request for a postponement. He will include this decision in his ruling on September 11.