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1. The Kingdom’s new configuration

The Kingdom of the Netherlands is engaged in a process of constitutional reform, which is now beginning to coalesce. The process relates to the Netherlands Antilles, currently comprising the islands of Curaçao, St Maarten, Bonaire, St Eustatius and Saba. Aruba will retain the separate country status it has had since 1986. Although many in the Kingdom are hoping that the new structure will be in place by the start of 2010, it is as yet uncertain whether this deadline can be met.

The reforms were prompted by referenda on the political future of the Netherlands Antilles, which were held between 2000 and the end of 2005 on each island. The outcome was clear: the islands no longer wished to be part of the Netherlands Antilles as it is today, though they did not want to slacken their ties to the Kingdom to any extent.

At present, the Kingdom of the Netherlands consists of three countries with equal status: the Netherlands Antilles, Aruba and the Netherlands. Thus, the Caribbean parts of the Kingdom – the Netherlands Antilles and Aruba – are not ‘overseas dependencies’ of the Netherlands, but full, autonomous partners within the Kingdom, alongside the Netherlands. The three countries enjoy a high level of internal autonomy. Foreign relations and defence are classified as ‘Kingdom affairs’. The overarching government of the Kingdom consists of the Council of Ministers for the Kingdom, which meets in The Hague. Both the Caribbean constituents of the Kingdom are represented on the Council by a minister plenipotentiary. The government of the Netherlands Antilles has its seat in Willemstad, Curaçao; that of Aruba has its seat in Oranjestad.

Under the new system, the two largest islands of the Netherlands Antilles – Curaçao and St Maarten – will obtain country status, comparable to that of the Netherlands Antilles and Aruba within the Kingdom’s current structure. Once the new arrangements take effect, the Netherlands Antilles will cease to exist as a country. The Kingdom will then consist of four, instead of three, countries: the Netherlands, Aruba, Curaçao and St Maarten. The details of this new arrangement will be worked out in a series of negotiations involving all parts of the Kingdom. It has also been agreed that the three smaller islands – Bonaire, St Eustatius and Saba – will have a direct tie to the Netherlands. In practice, their position will be more or less comparable to that of a Dutch municipality, with certain modifications to take account of their location in the Caribbean region.

The reforms will have no impact on responsibility for foreign relations. Specifically, this means that:

• there will be no change in the Kingdom’s external borders;

• like defence, foreign relations will continue to be a ‘Kingdom affair’;

• as is already the case at present, there will be one Minister of Foreign Affairs, and he or she will have final responsibility for foreign relations for the whole Kingdom;

• the Ministry of Foreign Affairs in The Hague and the missions will continue to serve the whole of the Kingdom and its constituent parts;

• treaties and conventions may only be concluded by the Kingdom, not by its constituent parts (although their scope may be limited to one or more parts of the Kingdom).

2. Round-Table Conference

On 15 December 2008 the three countries that currently make up the Kingdom and the five island terrritories of the Netherlands Antilles participated in a Round-Table Conference (RTC), held on Curaçao. The purpose of the conference was to take stock of the constitutional reform process and map out the course for the next phase. The RTC was chaired by Prime Minister Jan Peter Balkenende, though not as prime minister of the Netherlands, but rather as chair of the Council of Ministers for the Kingdom. The conference reached an accord, which included agreements on the police and law enforcement. The accord also provides measures for sound budgetary policy, financial management and oversight, to ensure that the islands have a healthy start. In exchange for Kingdom-level supervision in the areas of law enforcement and public finance, the Netherlands purges 70% of the Antilles’ public debt, as a goodwill gesture from one Kingdom partner to another, so as to ensure that the remaining debt, which will be passed on to the new entities, would be manageable. The RTC also reviewed the draft constitution and other draft laws for the ‘new’ countries (i.e. Curaçao and St Maarten), using criteria for good governance, law enforcement and sound budgetary policy that had been agreed in 2005. These draft laws must still be considered by the representative assemblies in accordance with normal legislative procedures. On Curaçao the results of the RTC will be put to a vote, in a referendum to be held in the spring of 2009.

With the completion of the Round-Table Conference in December 2008, the process entered a new phase. Until then, the focus had been on working out the details of the structure and drafting the necessary laws and regulations (preparatory phase). Now the goal is to oversee the passage and introduction of the draft laws and regulations, create the necessary institutions and take practical measures (implementation phase). In 2009 the parties will turn their attention to carrying out the measures outlined in the accord and conclude further agreements on the new constitutional arrangement. On that basis it will become clear when the new constitutional structure will take effect. All the parties involved are doing their utmost to move the process along, and many hope that the new structure will be in place by 2010. There is, however, some doubt as to whether this date is feasible.

The islands of Bonaire, St Eustatius and Saba are moving ahead expeditiously towards full integration into the Dutch polity. Draft versions of the most important legislation for these three islands were ready by December 2008. With the aim of improving the quality of public services the first package of specific measures will be implemented on these islands in January 2009, in the areas of education, security, public health and infrastructure.

3. Elements of the new structure

3.1 Financial oversight

Some time ago a Financial Supervision Authority was established in the Netherlands Antilles to supervise the public finances of Bonaire, St Eustatius and Saba, under the ultimate responsibility of the Council of Ministers for the Kingdom. The Authority will soon be doing the same for the country of the Netherlands Antilles and the islands of Curaçao and St Maarten. It has been agreed that a similar supervisory construction will be maintained under the forthcoming constitutional arrangement. The underlying supervisory principles will be a balanced budget and a cap on contracting debt.

3.2 Joint Court of Justice

The existing Joint Court of Justice of the Netherlands Antilles and Aruba will be converted into the Joint Court of Justice of Aruba, Curaçao, St Maarten and the Caribbean Territories of the Netherlands (i.e. Bonaire, St Eustatius and Saba).

3.3 Public order and security

Responsibility for maintaining public order, safety and security and running the emergency services on Curaçao and St Maarten will fall to the respective Ministers of Justice of the new countries. On Bonaire, St Eustatius and Saba the responsible parties will be the Dutch Minister of the Interior and Kingdom Relations and the Dutch Minister of Justice.

3.4 Public Prosecution Service

Under the new plan, investigative and prosecutorial powers will rest with a single overarching procurator general for all parts of the Kingdom that currently comprise the Netherlands Antilles: the new countries of Curaçao and St Maarten and the three islands that will henceforth be part of the Netherlands (Bonaire, St Eustatius and Saba). Each of the countries will have its own advocate general, who will be in charge of that country’s public prosecution service, under the responsibility of the country’s government. In the interest of clarity it is worth restating that the situation in Aruba will not change in any respect as a result of these reforms. That country will continue to have its own procurator general.

3.5 Police

The new countries of Curaçao and St Maarten will each have their own police force. The islands of Bonaire, St Eustatius and Saba will share a single police force, making a total of three forces for the five islands. These forces will cooperate in many ways. Structural arrangements will be made for cooperation in combating organised and cross-border crime and for operational support. Police officers will be authorised to operate on and may be deployed to any of the islands.

(16 February 2009)