American-Dutch Friendship Treaty back in court

POSTED: 06/8/11 1:55 PM

Justice Minister Duncan contests that treaty applies

St. Maarten – Once again the American-Dutch Friendship Treaty will take center stage at the courthouse this afternoon when Ricardo Perez, the director of SXM Maritime Services will ask the judge to declare that the treaty is directly applicable in St. Maarten. In the past, courts in Aruba as well as in St. Maarten have ruled that this is the case, but the government refuses to comply with it, fearing an influx of American citizens.

In June of last year, then opposition leader and currently Prime Minister Sarah Wescot-Williams told this newspaper that the Friendship Treaty (officially the Treaty of Friendship, Commerce and Navigation) applies in St. Maarten and that it supersedes local legislation.

. “I am baffled by the answer the Executive Council has given to the SHTA about this subject,” she said. “The government apparently thinks that it can duck the system.”

She dismissed the Exco’s argument that the treaty does not apply because St. Maarten is not a country yet. “The treaty is applicable and when people want to call on it, the government will have to look at it.”

In a meeting that took place days before Wescot-Williams made this statement last year, the government told the Hospitality and Trade Association SHTA that the treaty does not automatically mean that Americans living in St. Maarten do not need work permits. National Alliance MP Hyacinth Richardson, who was Commissioner of Labor Affairs at the time, told the SHTA however that the treaty “can be used to substantiate appeals if permits have been denied.”

On May 17, the Court in First Instance ordered the Island Council to take a new decision about a request for a director’s license by Mathew Leblanc. The Island Council had refused the license because Leblanc had earlier applied for a work permit which had been denied. It argued that Leblanc, by asking for a director’s license, was attempting to circumvent the national ordinance on the employment of foreigners.

But the court declared this decision incorrect. On February 22 the court ruled that Americans in St. Maarten are subject to the same rules and regulations as European Dutch. “The defendant (the Island council – ed.) has stated that based on the national ordinance on the employment of foreigners, European Dutch are exempt of a work permit. The court can only conclude that the decision (to refuse the director’s license – ed.) lacks proper justification. The defendant cannot reproach the plaintiff that he applied for the director’s license to circumvent the ordinance on employment for foreigners because this ordinance does not apply.”

Then acting Lt. Governor Reynold Groeneveldt told this newspaper in August of last year that the island territory would appeal the court ruling. The appeals court published its decision on February 7 of this year.

The plea memorandum filed on behalf of Justice Minister Roland Duncan in the Perez-case contains a reference to this court ruling. “The court has voided the ruling of the first judge and declared the appeal founded.”

From this, the Justice Minister concludes that this confirms the position of the Island Council, “namely that the treaty is not directly applicable.”

However, the court ruling of February 7 does not contain a single reference to the Friendship Treaty. It deals exclusively with the island council’s refusal to grant a director’s license to The Crew’s Nest bar and restaurant for Michael Leblanc.

The basis for this ruling is quite technical. The court concludes that the lower court should have declared inadmissible the appeal of The Crew’s Nest against the island council decision “due to the lack of interest” (the company has in the director’s license). The Appeals Court noted that Leblanc is an employee of the company, that this position does not require a director’s license, and that it has not been established that Leblanc will become the company’s proprietor or operator.

In his plea Minister Duncan builds on this ruling by concluding that the Friendship Treaty is not applicable in the Perez-case. “Taking everything into account it does not appear that international obligations are reason to grant the request.”

Perez is fed up with the fact that he has to apply for work permits, and he has now decided to contest the government’s position in front of a judge.

Judge mr. R.J. van Veen said in an interim ruling in February of last year already that the Friendship Treaty is open for one interpretation only – that Americans in what were then the Netherlands Antilles are subject to the same rules as European Dutchmen.

President Dwight D. Eisenhower signed the Friendship Treaty more than fifty years ago, on November 5, 1957 with the Dutch Foreign Minister Beyen and Minister without portfolio Joseph Luns. One month later, the treaty went into effect.

Article II sub 1 of the treaty states that either party (the United States and the Kingdom of the Netherlands) “shall be permitted to enter the territories of the other party and to remain therein for the purpose of carrying on trade between the territories of the two parties and engaging in related commercial activities; for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital; and for other purposes subject to the laws relating to the entry and sojourn of aliens.”

Under sub 2 the treaty states that nationals of either party shall be permitted “to travel in each other’s territories freely, and to reside at places of their choice.”

The same article also states that parties are free “to gather and to transmit material for dissemination to the public abroad.” This facilitates Dutch journalists to work in the United States, and American journalists to work in the Kingdom – and therefore also in St. Maarten.

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