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Wednesday, November 01, 2017

Is it legal to attach conditions to an offer for financial aid?

By Roeland Zwanikken , filed under: Uncategorized

Is it legal to attach conditions to an offer for financial aid?

Art. 36 of the Kingdom Charter stipulates that the Netherlands, Aruba, Curacao and Sint Maarten (will) provide each other aid and assistance. According to the Explanatory Notes, countries within the Kingdom will consult, assist and cooperate with each other. Furthermore: they are supposed to consider each other’s justified interests and to support each other, both morally and material, as far as reasonably possible. According to the Explanatory Notes the above can be considered a cooperation between countries in the Kingdom on a voluntarily basis. The following questions can be raised:
- Does the article stipulate that under circumstances, countries within the kingdom can demand financial assistance from other countries in the Kingdom?
- Does the article stipulate how financial aid should be quantified in practice? Can Sint Maarten, based on this article, demand payment of amount X from the Netherlands, Arbua and Curacao?
- Can one country sue another country if it would believe that this other country doesn’t provide sufficient financial aid?

The answer to all these questions is: no.

In every imaginable form of relationships (human or on country level: bilateral- or multilateral) it is very common that parties negotiate about conditions of agreements, they intend to enter. Volunteer organizations (like for example the Red Cross) provide aid, but will - as a rule - set conditions before funds or material aid will be released.

Professor Goudappel (Trouw, October 19, 2017) stated in her opinion that ‘there are no indications, also not in the history of the law, that conditions could be attached to this.’ This may be true; however, the opposite is true as well: nowhere in art. 36 of the Kingdom Charter, the explanatory notes or the history of the law, it is stated that countries do not have the right to negotiate about conditions to be attached to an offer to provide financial aid. The conclusion of professor Goudappel in this regard is therefore not convincing at all.

From a constitution point of view, under the circumstances, a political agenda can be attached to the offer to provide financial aid, as it is part of the political game, according to a recent opinion of constitutional expert Professor Arjen van Rijn.

In addition: neither in art. 36 of the Kingdom Charter nor in the Explanatory Notes on this article, it is stated that the (mutual) commitment to provide each other aid and assistance, may not lead to any form of interference. It is just (too) simplistic to assume that St. Maarten just has to ask for help and that then the other countries must deliver, whatever Sint Maarten deems reasonable.

It is correct to state that, as an autonomous state, Sint Maarten is completely in control of everything within the country and that it has the right to self-determination. However, warranting greater goods like good governance, proper administration and legal certainty, are Kingdom affairs. It also must be noted that according to the Kingdom Charter every country within the kingdom must arrange its own affairs and its own finances (!), while all countries within the Kingdom should be willing to support each other.

The above considerations reveal the sensitive point in the negotiations and demonstrate that it is not so black and white, as presumed by the editor of the Today in his opinion of October 22, 2017, in which he jumped into the conclusion that ‘it has now been established beyond a reasonable doubt that there is no basis for making these demands in the Kingdom Charter.’

It cannot reasonable be disputed that after hurricane Irma, Sint Maarten is not able to arrange its own internal affairs (itself) and to be financially self-supportive, while (i) nowhere in the Kingdom Charter it is prohibited to attach conditions to an offer for financial aid, (ii) from a constitutional point of view and under the circumstances it is not illegal to attach a political agenda to this offer and (iii) the Kingdom Council also has an obligation to warrant good governance and proper administration, based on this legislation. Finally: (iv) Sint Maarten already committed itself to both conditions set by the Dutch government; therefore, it cannot be said that the autonomy of Sint Maarten is infringed upon, because of the imposing of these conditions.

Based on all the above, in my view it is not incomprehensible that the Netherlands attached two conditions to the offer for substantial financial aid.