Our Border, Their Vote

The border issue is a reminder.

Despite meeting on the issue on Wednesday upcoming (see related story), St. Maarten’s Parliament will not make the final parliamentary decision on whether the Kingdom approves the 2023 border agreement. That reality is understandably frustrating, but the issue deserves more than righteous indignation.

St. Maarten is an autonomous country within the Kingdom of the Netherlands, but foreign affairs are handled at the Kingdom level. International treaties are therefore concluded by the Kingdom, even when they mainly concern one of its countries. In international law, the border with Saint-Martin is considered a boundary of the Kingdom. On the ground, however, it is plainly St. Maarten-Saint Martin border. Constitutionally, there is nothing extraordinary about that arrangement. Democratically, it is harder to dismiss righteous indignation.

It is also important to be fair about how the agreement came about. St. Maarten was not left out of the negotiations. The Government of St. Maarten was actively involved after years of technical talks and formal negotiations. It therefore had a real role in shaping the final agreement. But government involvement is not the same as parliamentary approval. Parliaments represent the people who will have to live with the consequences. St. Maarten’s Parliament does have influence and mechanisms for amendment etc, but when the Kingdom Act eventually comes to a vote, the votes are cast by members of the Staten-Generaal. St. Maarten’s elected representatives do not have a vote there.

That is not a new constitutional problem. The democratic deficit within the Kingdom has been debated for years. The Kingdom has no separate Parliament in which all four countries exercise equal voting rights on Kingdom affairs. Dutch parliamentarians ultimately vote on Kingdom legislation, while parliamentarians from Aruba, Curaçao and St. Maarten participate without equivalent decision-making power. The border treaty simply makes that arrangement unusually easy to understand.

Kingdom Acts, Ministers Plenipotentiary and articles of the Charter can seem distant from everyday life. Oyster Pond does not. People can stand there. Property owners can point to land affected by the boundary. Businesses can be affected by which jurisdiction applies. The agreement deals with property rights, construction near the border, physical boundary markers and the creation of a joint border commission. St. Maarten may also have to adjust local laws to put parts of the treaty into effect because of a border agreement whose final parliamentary approval it did not itself determine.

The constitutional explanation is that St. Maarten exercises its international sovereignty through the Kingdom. But a citizen can still reasonably ask: if this is our territory, why does our Parliament not have the final word on defining it? There is, of course, a valid argument for the existing system. The Kingdom cannot realistically operate internationally as four separate states depending on which country happens to be affected by a treaty. Foreign governments need to know who they are negotiating with, who can legally bind the Kingdom and who is responsible for carrying out an agreement. Giving every constituent Parliament an independent veto over Kingdom treaties could make foreign relations difficult to manage.

The present structure tries to balance those realities by involving the Caribbean countries early, giving them "representation" within Kingdom institutions and allowing their parliamentarians to participate in the legislative process. That system has a constitutional logic, but constitutional logic does not automatically settle the question of democratic legitimacy.

So, the cold reality is that the final parliamentary votes will not be cast in Philipsburg or Marigot, and this underlines something that is often conveniently blurred in political discussion and hollow representation debates; a reminder so to speak: St. Maarten is an autonomous country, but it is not a sovereign, independent state.

That constitutional reality, coldly in this instance, is as clear as the new line on the map.

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