Judge calls American-Dutch Friendship Treaty applicable

PHILIPSBURG--The American-Dutch Friendship Treaty is directly applicable in St. Maarten, which means that citizens of the United States are subject to the same rules as European Dutchmen, where residence permits are concerned. A judge in the Court of First Instance established this Monday in a case filed by US national Ricardo Perez.

Perez, his wife and two children had appealed a decision of the minister of justice to turn down their requests for a so-called "Declaration of Admission by Law" ("Van Rechtswege Verklaring" in Dutch).

The judge ordered the minister of justice to make a new decision within eight weeks on Perez's request to admit him and his family to St. Maarten.

Perez has been living in St. Maarten and is Director of SXM Managing Services NV, the managing company since June 2010 of Oyster Bay Beach Resort.

Perez had applied for a Declaration of Admission by Law in May 2010, as mentioned in Article 3 of the Ordinance on Admission and Expulsion LTU.

According to Minister of Justice Roland Duncan, who was represented during the June 7 court hearing by attorney-at-law Amador Muller, the request for a permit had been turned down because the applicant had not met the requirements for admission.

The minister had further claimed that there was no "international obligation" to grant the application. Neither were there any "compelling humanitarian reasons" to grant a residence permit, the minister had added.

According to the plaintiffs, the minister's decision to turn down the request for a residence permit was in violation of the 1956 Treaty of Friendship, Trade and Shipping between the Kingdom of the Netherlands and the United States. This treaty stipulates that Americans are to be submitted to the same rules as European Dutch.

In the LTU it is stated that European Dutch will be admitted if they can provide a declaration of good conduct and have housing and sufficient income. According to Judge René van Veen, Perez meets these requirements and therefore should have obtained a permit.

The LTU allows a Dutch national to stay in St. Maarten as a tourist for six months. If he/she is going to work on the island or if he/she wants to stay longer than six months, he/she needs to apply for a Declaration of Admission. Contrary to other nationals, Dutch citizens may await the approval of such declaration on the island. He/she is also allowed to work during that time.

Article 2 (i) of the US-Dutch Friendship Treaty states that nationals of either party are permitted to enter the territories of the other party and to remain therein for the purpose of trade between the territories and to engage in related commercial activities, as well as for the purposes of developing and leading the operations of a company in which they have invested a substantial amount, and for other purposes subject to the laws in connection with the admission and residence of foreigners.

In Article 3 of the treaty it is specifically mentioned that, in any part of the Kingdom of the Netherlands, US nationals should receive the same treatment as Dutch nationals who are not born in that part of the Kingdom.

The minister had claimed that the treaty would not be directly applicable and that the plaintiff's request had been rightfully turned down.

However, the judge said this standpoint was neither supported in the text of the treaty, nor in jurisprudence on the matter. In different cases, the Court of First Instance of Aruba, as well as the Court in The Hague and the High Council had all ruled in favour of the treaty's applicability.

Therefore, the judge came to the conclusion that the minister had wrongly disregarded the provisions of the Friendship Treaty and its protocol. He thus ruled the previous decision null and void and ordered the minister to make a new decision on Perez's request.

Country St. Maarten will also have to foot the bill for the legal procedures of these cases, which the judge set at the total amount of NAf. 6,200.

It is not yet known if the minister of justice will appeal this decision. In administrative cases, one may file for appeal until six weeks after the verdict.

(Source: The Daily Herald Sint Maarten)

25 July 2011

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