THE NETHERLANDS ANTILLES AND ARUBA, AN EMBARRASSING LEGACY OF THE DUTCH COLONIAL ERA? DUTCH DUTIES REVISITED FRANS A. NELISSEN AND ARJEN J.P. TILLEMA Decolonization in the late twentieth century sometimes differs markedly from the classicalpost-war decolonizationphenomenon. While colonies were then fighting for their independence, today (ex) colonies might have to spend their energy on efforts to prevent being forced into independence.In the case of the Antilles and Aruba, the Dutch seem to view the islands as a somewhat embarrassing legacy of the Dutch colonial era and are seeking to sever all constitutional links with the islands although sofar the Netherlands Antilles have refused to discuss independence at all, while Aruba appears to have some second thoughts about its 1996-independence choice.The issue raises questions of international law, most of them concerning the right of all peoplestoself-determination.The authorsdescribeandanalyze Dutch policy and conclude that it is not in line with Dutch duties under international law. 1. INTRODUCTION With regard to the still remaining colonies it was stated in the United Nations General Assembly in 1965 that "they present the widest conceivable variety in geography, in resources or the lack of them, and in needs. They each have their own different character and different requirements, but equal claims on our understanding and our concern (...). Many of them are too small to fend for themselves in the world. It may a problem of remoteness from markets and lines of communication. It may be a problem of bringing together, within one united community, people of different origin, religion or race. The problems are peculiar in every case. (...). There is no single solution. There is no single shibboleth, no single password which will open the way to the solution of their different and separate problems. It is no use hoping that, if we blow hard enough on the trumpets of immediate independence the practicable obstacles will all come tumbling down."1 This statement covers remarkably well, the case of the different islands which make up the political entity of the Netherlands Antilles: Bonaire, Curacao, Saba, St. Eustatius, St. Martin, and its former member, the island of Aruba. * Frans A. Nelissen is lecturer Public International Law at the Faculty of Law of the University of Groningen. Arjen J.P. Tillema is, among others, studying international law and student-assistant at the same university. 1. Dec. 1,1965: speech British representative Lord Caradon, U.N. GAOR (1386 plen. mtg.). Leiden Journal of International Law, Vol.2, No.l, May.'89 © 1989 Leiden Journal of International Law Foundation Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.8, on 30 Sep 2021 at 21:23:49, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0922156500001254 168 The Netherlands Antilles and Aruba 2 LJIL (1989) The territory of the Netherlands Antilles comprises 392 square miles including Aruba, with a 600-mile distance between the three comparatively largest islands, Curasao and the flanking islands of Aruba and Bonaire on the one hand, and the three tiny islands Saba, St. Eustatius and the southern part of St. Martin (the northern part being French) on the other. The largest islands, the main island being Curacao, all lie approximately 50 miles off the coast of Venezuela at the southern end of a chain of islands seperating the Caribbean sea from the broad Atlantic. The remaining ones, many miles to the north, are called the Upperwind or Windward Islands because of their altitude with regard to the north-east-tradewind. The total population is estimated at around 250.000 people. About 150.000 of them live in Curacao, the site of the government for the five-island country, most of the remainder (around 70.000) reside in Aruba, while less than 1.000 persons live on Saba. Each of the 6 islands of the Dutch Caribbean has a distinctive cultural climate, mainly based on different ethnic mixes. For instance, Curacao has always had a predominantly black population whereas there is a larger white element and a substantial Carribean Indian component in Aruba. The Dutch Caribbean has a relatively high standard of living - in 1984 per capita income was about $3500 - benefiting from a number of unique advantages and a special combination of Dutch legal orderliness in business and government plus a climate favourable for tourism. However, apart from an economic decline in the first half of the 1980's (things appear to be going somewhat better lately), Aruba and the Netherlands Antilles face a heavy burden stemming from their constitutional prosperity. After the Second World War colonies fought to gain their independence. That classical post-war decolonization phenomenon has been subject to change however. Nowadays former colonies - especially the smaller (island) territories - repeatedly seek a solution to the problems of their political aspirations in some kind of association with the mothercountry rather than seeking full sovereignty. This holds true for Aruba, which appears to have had some second thoughts about its 1996-independence choice - as will be explained later - and the Netherlands Antilles, which, instead of fighting for independence, oppose it. The Netherlands however, is seeking to sever its constitutional ties with the islands and pressures the Antilles to work towards full independence. It seems that these ex-colonies might better spend their energy on efforts to prevent being forced into independence. 2. See R.S. Klein and G. Faudiol, Trouble in paradise: managing an emergency in the Dutch Caribbean (Washington DC Georgetown University, 1985). 3. It is generally held that after the entering into force of the 1954 Kingdom Charter and, especially, the adoption of U.N. G.A. Res. 945 (X) in 1955 the territory is not 'non-selfgoverning' anymore under Chapter XI of the U.N. Charter, and can therefore be considered decolonized. However, as will be argued later, this does not imply that Dutch duties have ceased. See extensively on this and other questions discussed here related to the Antillean right to self-determination and corresponding Dutch duties; AJ.P. Tillema, The Netherlands Antilles and Aruba, a study in self-determination (to be published in Oct. 1989 on the Antilles). Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.8, on 30 Sep 2021 at 21:23:49, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0922156500001254 Nelissen and Tillema 169 2. HISTORICAL BACKGROUND The Second World War was a catalyst for new ideas and relations, also with regard to the colonial question. In August 1941 Winston Churchill and Franklin D. Roosevelt signed a joint Declaration with regard to their countries' long-term policies. In Chapter III of this so-called Atlantic Charter they proclaimed, inter alia, the 'right of each people to choose its own form of government'. The Dutch government in exile in London was acting in this spirit when Queen Wilhelmina of the Netherlands announced more autonomy for the overseas territories in a famous radio broadcast in 1942. However, the proposal was too little, too late for the colony in the East; in 1945 Soekarno and Hatta on behalf of the Indonesian people, proclaimed the independent Republic of Indonesia, and despite military intervention, the Dutch could not turn back the clock. The remaining overseas territories Surinam and the Antilles had been willing to modify the constitutional bonds at the Conference table. On the basis of Queen Wilhelmina's speech consultations took place on ways which the given promise could be fulfilled. A Round Table Conference in 1948 laid down the principles for a thorough revision of the constitutional relations between the participant territories. At this Conference the Antilles and Surinam made it clear that they wanted to remain within the Kingdom, although Surinam did not want to rule out the possibility that this would change at a later time. Pending the establishment of the envisaged new constitutional order within the Kingdom, the Interim Constitutional Rules of the Dutch Government came into being, for the Antilles in 1951. These Rules, which were approved by the parliaments of the two territories concerned, affected the immediate introduction of responsible government in the Netherlands Antilles and Surinam leding to the installation of a Western democratic form of government. The Netherlands had given up the right to interfere in the domestic matters of the territories, although, subject to consultations with the two countries, the ultimate responsibility for keeping law and order within its own borders rested with the Kingdom, de facto the Netherlands. Furthermore, the non-intemal affairs enumerated in the Interim Constitutional Rules remained within the competence of the Dutch authorities: namely defence, foreign affairs, nationality and treatment of aliens, shipping and aviation. It was decided to determine at a later stage exactly how these matters would be divided between the three parts of the Kingdom. To this end, the Dutch government came 4. See C. van Krimpen, HetAntillen dillema, herwaardering van het dekolonisatieprocesJ/8 Socialisme en Democratic (July/Aug., 1987). 5. See W.H. van Helsdingen, Het Statuui voor het Koninkrijk der Nederlanden, 194 (Staatsdrukkerij Den Haag,1957). 6. See PJ. Kuiper and PJ.G. Kapteyn, A colonial power as champion of self-determination: Nether- lands' practice in the periods 1945-1975,3 International Law in the Netherlands 177 (1980). As it would be later in Article 43 of the Charter of the U.N.. Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.8, on 30 Sep 2021 at 21:23:49, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.