Overseas Territories Report
The authoritative journal on economic, social and political
developments in and affecting small island overseas countries, territories and
departments
Vol. IX No. 2 February 2010
Self-Determination
or Annexation?
The Case of Bonaire
__________________________________________________________________________________
by Dr. Carlyle G. Corbin
International Advisor on Governance
Former
US Virgin
Islands Minister of State for External Affairs
The recent postponement by the
Dutch Government of the 24th March referendum on the political
future of the people of Bonaire, coupled with the continued process of
annexation of the island in spite of efforts by the elected government to
consult its people on their political status choice, violate the inalienable
right of self-determination of the people of Bonaire as guaranteed under international
law.
Bonaire, one of the five island
jurisdictions of the Netherlands Antilles off the coast of South America, voted
in 2004 for “direct ties” with the Kingdom of the Netherlands. In referenda conducted
in the four other islands held between 2000 and 2005, Saba voted for “direct
ties” while St. Eustatius accepted that status
after first voting to stay within the present unified five-island country. This
was not possible, however, since the country in which they agreed to remain
would no longer exist as it would have to be dismantled. The remaining two islands of Curacao
and Sint Maarten voted for separate country status, albeit with significantly less
autonomy than presently exists.
Minimum Standards
for Political Integration Unmet
Since the 2004 Bonaire referenda,
however, the meaning of “direct ties” with the Kingdom was increasingly defined
by the Dutch political and administrative machinery as a form of “partial
integration/annexation,” and apparently not consistent with the understanding
of the people of Bonaire. As recent as 2008,
there was no elaboration on the meaning of “direct ties” in the Dutch Kingdom’s
Report to the Human Rights Committee
on its compliance with Article 1 (Right
to Self-Determination) under the International
Covenant on Civil and Political Rights (ICCPR). The Report merely stated
that “Bonaire, Saba and St Eustatius will
become ‘public bodies’ within the Netherlands
(and that) the Kingdom of the Netherlands
will then consist of the Netherlands
(with Bonaire, Saba and St Eustatius as public bodies), Aruba, Curacao and St Maarten.” [i]
Concern for the failure of
signatory countries to provide sufficient detail on Article 1 of the ICCPR
dealing with self-determination was expressed by the United Nations High Commissioner for Human Rights as early as 1984
in General Comment 12. [ii] Indications
are that this lack of elaboration persists. Accordingly, the Dutch Kingdom Report
was also silent on the nature of the lesser autonomous country status for Curacao and Sint Maarten, respectively without reference
to whether this status would meet the minimum standards of autonomous
governance according to international norms.
In this connection, there is a
temptation to seek to justify such lesser autonomous arrangements by citing UN
Resolution 2625 (XXV) which refers to “the emergence of any other political status
freely determined by the people.” However, the primary intent of that resolution
was limited to “recognis(ing) the emergence of differing
and flexible self-governing political models, with the understanding that the
minimum level of political equality, and the attainment of a full measure of
self-government, remained an essential prerequisite, as consistently reaffirmed
in the legislative authority contained in General Assembly resolutions to that
point.”[iii]
In other words, it was never the intention of the General Assembly, by Resolution
2625 (XXV), to legitimise political dependency models which did not provide for
a full measure of self government, but rather to acknowledge the evolution of
such political and constitutional arrangements as positive developments moving towards
a full measure of self-government as clearly defined in Resolution 1541 (XV). There
is no formal international process to assess the status of countries which have
had their autonomy reversed since the need to address such a development was
never anticipated.
Right of the People to be Consulted
Given
the democratic deficits emerging in the proposed ‘public body/public entity’
status, a new Bonaire government in 2009 began to enact procedures for a second
referendum to consult its people after a more thorough public education
programme on their legitimate political options. In this case, the idea was to
give the people of Bonaire the opportunity to determine
whether the kind of “direct ties” it wished with the Kingdom should be in the
form of the emerging partial political integration, or in the form of an
association.
It is acknowledged that integration
with full political rights, independence, and free association are the three
legitimate alternatives which constitute the internationally-recognised options
of political equality under United Nations General Assembly Resolution 1541
(XV). Under this international instrument, political integration must be
achieved on the basis of “complete
political equality (where) the people should have equal status and rights of
citizenship and equal guarantees of fundamental rights and freedoms…”[iv]
There is the additional
requirement, in the context of minimum standards of political equality, that
integration must provide for “equal
rights and opportunities for representation and effective participation at al
levels in the executive, legislative and judicial organs of government.” Direct
ties, as envisaged by the Dutch, appears not to conform with these
internationally-recognised minimum standards of political integration. A case
could be made, therefore, for the listing of Bonaire
as a non self-governing territory under the United Nations Charter until
integration with full political rights is realised. An independent assessment
of this ‘public entity’ status, as well as a review of the lesser autonomous
‘country’ status agreed by Curacao and Sint
Maarten, would shed considerable light on whether the relevant minimum
standards would be met.
Other requirements in relation to political
integration should also be taken into account, most notably, the requirement
that integration should “be the result of
the freely expressed wishes of the territory’s peoples acting with full
knowledge of the change in their status…”. Clearly, the insufficiency
of information on the details of the “public entity/public body” status did not
provide for the “full knowledge” of
the people before the 2004 referendum. Thus, the reasons articulated by the
Bonaire Government to consult the people in referendum are wholly appropriate.
The related matter is the
international requirement for the “freely
expressed wishes of the people.” Thus far, the people of Bonaire
have not yet had the opportunity to endorse the proposed status – as it has
evolved - through an informed and democratic process. This decision was made by
the political leadership in the Final Declaration of 2006, but was not
subsequently approved by the people in referendum in Bonaire, Saba nor St. Eustatius.
The Dutch Rationale
It is ironic that the main
rationale for the Dutch action to thwart the Bonaire
referendum is based on an interpretation that the March 2010 referendum, as
planned, “cannot withstand the test of international law.” It is not convincing,
however, that the Bonaire Referendum
Ordinance violated international law. On the contrary, what appears to be
in contravention of international law is not the Ordinance, but rather the denial
of the right of the people of Bonaire to
self-determination as required under the International
Covenant on Civil and Political Rights (ICCPR), and other pertinent human rights treaties and international
instruments.
Accordingly, it is relevant that General
Comment 12 of the Office of the High
Commission for Human Rights emphasises the requirement of the ICCPR that “all States parties (to the ICCPR) should
take positive action to facilitate realisation of and respect for the right of
peoples to self-determination (and that) such action must be consistent with
the State’s obligation under the Charter of the United Nations and under
international law.” The Dutch annulment of the Bonaire Referendum
Ordinance, and its earlier punitive
suspension of aid to that island jurisdiction because of its principled
position that the people must be further consulted, are incongruous to the
requirement to “facilitate” the
self-determination process. These actions are also inconsistent with Article 73
(b) of the United Nations Charter on the requirement of member States to
promote self-government.
Within this broader context, the
Dutch rationale in blocking the referendum is twofold: firstly, the lack of
clarity of the referendum question, and, secondly, voter eligibility. On the first point, a clear case
can be made for greater elaboration of the definitions of the referendum options,
and the implications of the proposed choices. One way to accomplish this task
is by utilising the definitions of the options of integration and free
association, respectively, as clearly defined in United Nations Resolution 1541
(XV), and which conform to the principle of absolute political equality. The
United Nations Needs Assessment Mission
in its report on its visit to Bonaire in
December, 2009 did not address the possibility that the partial integration on
offer by the Dutch might not have met international standards of full political
integration. This may not have been a part of their mandate.
The Voter Eligibility Question
On the second point of voter
eligibility, however, the issue is more complex. In this context, a clear
distinction must be made between voting in regular elections versus
participation in acts of self-determination such as the Bonaire
referendum where the people are asked to vote on their political future.
Reference to this effect was made in the
2nd February 2010 editorial in the Daily Herald that “…in the case of a referendum, it is not
unusual to deviate from normal voting rights for elections within the Netherlands Antilles.” [v]
In fact, such a deviation is
widely used in self-determination referenda which have historically been
governed by different voting eligibility criteria than that utilised for
general elections. The rationale for this is clear since it is the people with
an historic connection with the country/territory who have the distinct right
to determine the future of that country or territory. This is evidenced by a
number of examples historically, many of which have been endorsed by the United
Nations General Assembly, the Security Council and other relevant bodies. The
UN Needs Assessment Mission Report was silent on the differentiation between
referenda and regular elections. This, too, may not have been part of their
mandate.
Referendum Voter Criteria
The process in New Caledonia, a French overseas territory
in the Pacific, is a case in point where the validity of the electoral
franchise for the upcoming referendum – agreed by the French Government - was
confirmed by the United Nations Human Rights Committee. This UN body established
that “a
differentiation between residents as regards their relationship to the
territory, on the basis of length of residence requirement…did not have the
purpose or effect of establishing different rights for different ethnic groups
or groups distinguished by their national extraction.” [vi] The European
Court of Human Rights concurred with this assessment in its 2005 decision. [vii] This amounted to a recognition of the
legitimacy of a ten-year residency requirement for voting in the
self-determination referendum. [viii] The UN Human Rights Committee concluded that
“the (ten-year voter eligibility)
criteria established are reasonable to the extent that they are applied
strictly and solely to ballots held in the framework of a self-determination
process.”
The Committee further held that
the differentiation in voter eligibility was “based on objective grounds” that were “reasonable” and “not
discriminatory.” The European Court of Human Rights, in its
decision, also concurred with the 15 July 2002 Views of the United Nations Human Rights Committee on the New Caledonia residency
requirements, which stated, inter alia, that:
“…the criteria governing the right to vote
in the referendums have the effect of establishing a restricted electorate and
hence a differentiation between (a) persons deprived of the right to vote…and
(b) persons permitted to exercise this right owing to their sufficiently strong
links with the territory whose institutional development is at issue.” [ix]
Given this legitimisation of a
ten-year requirement for a political status referendum by the United Nations Human Rights Committee,
it is difficult to determine the reasonableness behind the relevant
recommendations of the United Nations
Needs Assessment Mission which termed as “problematic” the five-year
requirement originally recommended by the Bonaire
Referendum Committee. On the contrary, it is the recommended “reasonable compromise solution” of a
six-month residency period put forth by the UN mission that should be deemed
unreasonable, as far as the people of Bonaire are concerned. In any case, the Bonaire Referendum Ordinance was later
adopted with a three-year residency
requirement – still well within the parameters of what was determined reasonable by the United Nations Human Rights Committee,
and confirmed by the European Court of
Human Rights, but nevertheless regarded as excessively long by the UN Needs Assessment Mission.
If this exercise was designed for
the purpose of protecting the political rights of European Dutch citizens, rather
than the Antillean Dutch citizens, who constitute the people of Bonaire, then there would be some basis for the short
voter residency requirement recommended by the United Nations Mission. Of course, the Mission’s
equality of rights argument would, then, also be applied to the Antillean Dutch
citizens who are hardly equal to their fellow citizens in Europe
in terms of political rights within the Kingdom. (This significant inequality of political rights was even recognised by
the Dutch Committee on the Democratic Deficit of the Kingdom Government, but whose recommendation to give voting rights to
the people of the present Netherlands Antilles in parliamentary elections was set
aside ).
Several other examples of special
voter eligibility requirements are worth noting to further illustrate the
point, including the 1999 political status referendum in East
Timor which limited the franchise to natives and offspring of at
least one parent who was born in the territory. No less than the United Nations Security Council, by
resolution, “welcome(d) the modalities for the (1999) popular consultation of
the East Timorese through a direct ballot.” The United Nations actually
conducted the balloting of this restricted franchise.
The situation in Western Sahara is also instructive because it legitimised
a further variation on the distinctiveness of the electoral franchise in an act
of self-determination, in this case, based on ethnicity. It is the United
Nations which is organising this restrictive voter registration for the
long-delayed self-determination referendum there.
Even the American – administered
territories have instituted unique electoral measures on that basis with the
adoption by the Guam Legislature of the Chamorro
Registry defining voter eligibility in an upcoming referendum on
self-determination based on family lineage and descendency. There have been no
legal challenges thus far arguing that the rights of “other United States citizens” resident in that
territory were being infringed upon – perhaps the quid pro quo is that the
people of the US territories
have no voting rights in the United
States political system. The United Nations
has acknowledged these specific eligibility requirements for Guam
by General Assembly resolution.
Conclusion
Given established precedent, and
taking into account the rulings of the European
Court of Human Rights, and the United
Nations Human Rights Committee, respectively, it is difficult to concur
with the view that a three-year residency requirement for what amounts to an
act of self-determination on the political future of Bonaire
violates international law. In fact, the three-year requirement would appear
well within the parameters of established international precedent.
It is to be recognised that the
voter eligibility requirements contained in the Bonaire Referendum Ordinance
might be seen by some as a “conflict with the public interests of the Kingdom”
and may even be seen as counter to what some have suggested is a grand strategy
to increase European Dutch presence and political power in the Antilles, and by
extension, heighten Dutch influence in the Caribbean. Notwithstanding these
perceptions, the voter eligibility requirements were properly designed to
protect the interests of the people of Bonaire,
and have clear international precedent.
As the March 2010 timetable
approaches for the vote in the Dutch Second Chamber on the package of draft
laws for the three islands to be partially integrated, decisions will have to
be taken by the elected government of Bonaire in determining the way forward,
even as the Dutch continue to exert inordinate political, economic and other pressures
on the situation with the apparent aim of bringing the island in line with what
some view as a Dutch plan of annexation. In this regard, the Dutch suspension
of financial assistance to development projects in Bonaire
until the island “falls in line” is disappointingly heavy-handed, as is the
disparaging public comments made about the situation by certain Dutch
politicians.
In the final analysis, the
rationale used to thwart the Bonaire
referendum leans more on the basis of political consideration rather than any
convincing interpretation of international law and precedent as far as voter
eligibility in referenda is concerned. However, the need for clarification of
the referendum question is duly recognised and easily adjusted.
All parties should be in
agreement that the overriding principle is the self-determination of the people
of Bonaire. This is an inalienable right, and
cannot be dismissed so easily for the sake of an external legislative timetable.
In this light, there remains considerable scope for a resumption of discussions
leading to a satisfactory resolution with the backing of appropriate
international support. The alternative may require taking the issue to the
relevant international tribunals where the entire spectrum of issues could be put on the table for
comprehensive examination by the international community.
Notes
[i] Consideration of Reports
submitted by States Parties under Article 40 of the International Covenant on
Civil and Political Rights: Addendum Antilles, Human Rights Committee. CCPR/C/NET/4/Add.2. 9 June 2008. Original:
English.
[ii] See.
General Comment No. 12, The Right to Self-Determination of peoples (Art. 1). 13
April 1984.
[iii] Carlyle Corbin, “Criteria for the Cessation
of Transmission of Information under Article 73(e)” in “Overseas Territories
Report, Vol. V, No. 5. August 2006.
[iv] See Principle VIII of Resolution 1541 (XV) of
15 December 1960.
[v] thedailyherald.com, “Editorial – Wrong
Message,” 2nd February 2010.
[vi] See “Views of the United Nations Human Rights
Committee, dated 15 July 2002” as cited in Py v. France 11 January 2002.
[vii] European Court of Human Rights, “Case of Py
v. France.
pp. 11-12. 11 January 2005.
[viii] New
Caledonia Institutional Act (no. 99-209). Article 188
(c). 19 March 1999.
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