Instead of negotiating liquidity support from weakness, they can now, under international law, demand liquidity support from the administering state, not as loans, but as grants in aid.
The Pivot: From CoHo to article 73 UN Charter
With the admission by the Dutch State on April 23, 2021 and the confirmation by a judge in the court of first instance on St. Maarten on May 7, 2021, that the islands were never decolonized, the former Netherlands Antilles (all six islands) has once again landed on the UN’s list of Non-Self-Governing territories (NSGT). Of course, there are many bridges to cross to arrive at the final destination, but that does not prevent the islands from beginning to plan for life as an NSGT, even if it were to be for a brief sojourn before moving back into the Kingdom, this time as fully decolonized islands.
A New World of possibilities
Once under article 73, the entire negotiating posture of the islands changes. For one, the UN Decolonization committee becomes their partner in any negotiations with the Netherlands. The benefits of being under article 73 are decidedly in favor of the islands. Article 73 carries no responsibilities for the islands, while the Administering State bears full responsibility for amongst others the economic well- being of the inhabitants of these islands. This changes the negotiating positions of the islands radically. Instead of negotiating liquidity support from weakness, they can now, under international law, demand liquidity support from the administering state, and not as loans, but as grants in aid, since repaying loans will be a drain on the economies of the territories whose economic well-being it is the Dutch State’s responsibility to ensure. The negotiations will take place under the aegis of the UN Decolonization Committee and COHO will have a tough time passing muster before the committee as its provisions conflict with the aims and objectives of Article 73, which are, a “Full Measure of Self-Government” for these islands. All in all, a much-improved position over the present squabbling over liquidity support.
Retroactivity
Since the islands were never decolonized, the responsibility of the Dutch State reaches back to 1955. This implies that all loans repaid since that date can be reclaimed as repayment was done without a proper legal basis. The Netherlands as the administering State, may not convert its responsibilities under article 73 into loans.
The Articles on Responsibility of States for Internationally Wrongful Acts
A violation of the right of self-determination by the administering State amounts to an internationally wrongful act that entails the international responsibility of that administering State. This is the stated position of the Dutch State as reflected in paragraph 4.1 of it “Written Statement” to the International Court of Justice (ICJ) of February 27, 2018.
The Court having found that the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, it follows that the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State. (ICJ, LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965,- Feb. 25, 2019, Par. 177)
A sound argument can therefore be made that the failure to decolonize the islands since 1955 represents a violation of their right to self-determination and therefore constitutes a wrongful act entailing the international responsibility of the Kingdom of The Netherlands.
Veto Rights
Article 73 furthermore enunciates the principle that the “interests of the inhabitants of these territories are “paramount”. This obliges the Netherlands to adopt this principle in its negotiations with the islands. So far the Netherlands has always maintained a firm upper hand, but this obligation gives the islands a veto right since the Netherlands is obliged to operate from the principle that the rights of the inhabitants are paramount.
