1. History

By the beginning of the Second World War, the internal relations within the Kingdom of the Netherlands had for the most part retained their centuries old colonial features. Though officially no longer labelled colonies, the so-called overseas territories in Asia and the Western Hemisphere were, in essence, still ruled on behalf of the Netherlands in Europe.

The discussion on a revision of the nature of that relationship, which had already existed for many years in the overseas territories and within opposition circles in the Netherlands, gained momentum during and after the war.

During that period, almost all non-independent countries began to feel a strong desire to go their own way. In the" Atlantic Charter" the Allies recognised the right of all peoples to choose freely their own form of government. The radio broadcast by Queen Wilhelmina on 7 December 1942 was an important landmark. The Queen said to be aware of the need to restructure the Kingdom, in order to put relations between its constituent parts on a more equal footing. A conference was planned to review the existing relations between the Netherlands and its overseas territories. The Republic of Indonesia gained full national independence in the post-war period.

Immediately after the war, delegations from Suriname and the Netherlands Antilles presented a petition to the Queen, expressing their strong desire for autonomy. As a result of these developments, the constitutional structure of Suriname and the Netherlands Antilles was reviewed in order to transfer responsibilities to Surinamese and Netherlands Antillean organs as fully as possible under the existing Constitution. At a conference held between the three countries, the basic principles of a new form of government were drawn up, based on the foundations of freedom, equality and solidarity. This was partially embodied in the new constitutional structures of the two overseas territories, of 1949 and 1950.

The basic principle of these constitutional structures was the granting to these two countries of autonomy in the conduct of their internal affairs. In 1954 an agreement was reached on a definitive structure for political relations between the three countries.

2. The basis: The Charter

The Charter for the Kingdom of the Netherlands was proclaimed on 29 December 1954. It still functions today, only slightly modified over the years.

The Charter, the written constitution for the Kingdom as a whole, embodies the structure of the Kingdom. It is a constitutional arrangement of a unique kind which was voluntarily accepted by the participating countries as the highest ordinance. In 1954 these countries were the Netherlands, Suriname and the Netherlands Antilles. Since Suriname left the Kingdom in 1975 and Aruba seceded from the Netherlands Antilles on January 1, 1986, the Kingdom has consisted of the Netherlands, the Netherlands Antilles and Aruba. When Aruba left the Netherlands Antilles it was agreed that it would become fully independent by 1996. However, the article stating the scheduled independence has been rescinded in 1995 on Aruba's own insistence.

The Charter provides for an umbrella-construction covering the three countries, each of which has its own internal Constitution. It is the basis for mutual relations between the three countries and relations with other countries and international organisations. The tasks and responsibilities of the organs of the Kingdom are based on the Charter, which has to be taken into account in all legislation and administration, both in the Kingdom as a whole and in the individual countries.

The preamble to the Charter states its most important principles. The Charter creates a voluntarily accepted constitutional order, in which the participating countries conduct their internal affairs autonomously and their common affairs jointly on the basis of equality, whilst according each other mutual assistance.

The acceptance of the Charter once and for all put an end to the Kingdom's colonial past. The equal status of the countries is explicitly laid down in the preamble to the Charter and determines relations between them, as laid down in the Charter.

The new nature of mutual relations within the Kingdom has been recognized by the international community. In 1955 the General Assembly of the United Nations decided that the compulsory annual report, which has to be published for all non-self-governing territories, could be discontinued.

3. The key elements of the Charter

3 .1 Kingdom affairs

Basically, the individual countries conduct their own affairs.

However, the Charter includes a limited number of affairs which are conducted jointly, known as "Kingdom affairs". All these are laid down explicitly in the Charter. This ensures the autonomy of the individual countries. The Kingdom may not extend its domain against the will of the constituent countries.

The most important Kingdom affairs are contained in article 3 of the Charter: the maintenance of the independence and the defence of the Kingdom, and foreign relations. Others include Netherlands nationality, the regulation of the nationality of vessels and the standards required for their safety. Finally, there is the supervision of the admission and expulsion of Netherlands nationals and the setting of general conditions for the admission and expulsion of aliens. Elsewhere in the Charter, in article 43, a further affair of the realm is mentioned, namely the protection of fundamental human rights and freedoms and also legal certainty and proper administration. However, the individual countries are charged with the task of safeguarding these rights. The Kingdom may only intervene if they fail in this duty.

The number of Kingdom affairs could be extended if the three countries agreed to do so: according to article 3, paragraph 2, other matters may be declared to be Kingdom affairs in consultation.

3.2. Autonomy

The fact that the list of Kingdom affairs given in the Charter is exhaustive means that in other respects the individual countries are basically free to manage their internal affairs autonomously. This is dealt with in article 41 of the Charter.

As stated above, each of the three countries has its own Constitution. They are free to determine their own rules with regard to the organisation of the state, administration of justice, civil law, criminal law, etc., as long as they meet the requirements of article 43 of the Charter, cited in paragraph 3.1. This article, which must be regarded as one of the cornerstones of the Charter, finds concrete expression in the fact that all three countries are parliamentary democracies with independent judiciaries.

The Charter also includes a "concordance article" as to the legislation of the countries. Article 39 states that regulations in a number of areas may not differ. The article states as follows:

  1. Civil and commercial law, the law of civil procedure, criminal law, the law of criminal procedure, copyright, industrial property, the office of notary and provisions concerning weights and measures, shall be regulated as far as possible in a similar manner in the Netherlands, the Netherlands Antilles and Aruba.
  2. Any proposal for drastic amendment of the existing legislation in regard to these matters shall not be submitted to or considered by a representative assembly until the Governments in the other countries have had the opportunity to express their views on the matter. However, in practice the countries enjoy a large degree of freedom, even in these matters. The article is not worded in such a way as to establish an obligation to place proposals before the other Governments. If this does occur, it is on a voluntary basis. In practice there exist a number of consultative bodies and co-operation structures at the working level. However, there still are considerable differences in certain areas between the three countries.

3.3 Mutual aid and assistance

The special relationship between the countries of the Kingdom is expressed in article 36 of the Charter, which states: "The Netherlands, the Netherlands Antilles and Aruba shall accord one another aid and assistance."

Where reasonably possible, the countries support each other both morally and materially. The difference in size between the Netherlands on the one hand and the Netherlands Antilles and Aruba on the other and the ensuing differences in economic strength and defence capability has resulted in a situation where the Netherlands renders assistance in order to improve the economic strength and defence capabilities of the others. The fact that the Netherlands Antilles and Aruba are relatively small, also has as a consequence that they can not possess enough expertise in many, often essential, areas. At the request of these countries, the Netherlands therefore provides a great deal of help in the form of personnel, either for shorter periods to work on a specific project, or for longer periods.

For example, Dutch judges and Dutch staff of the Public Prosecutor's Department are put at the disposal of the Netherlands Antillean and Aruban governments to ensure that the judiciary and Public Prosecutor's Departments of both these countries have sufficient staff.

4. Organs of the Kingdom

The number of Kingdom affairs is only limited. Thus, for practical reasons, no entirely separate organs have been created to deal with them. As a rule, Kingdom Affairs are dealt with by organs consisting of competent bodies of the Netherlands, reinforced with representatives of the Netherlands Antilles and Aruba. This is true of the Council of Ministers of the Kingdom, the States General (parliament), the Council of State and the Supreme Court.

4.1 The Council of Ministers of the Kingdom

The Ministers Plenipotentiary who represent the governments of the Netherlands Antilles and Aruba have a seat and voting rights on the Council of Ministers and on the permanent Boards and special committees of the council when affairs of the Kingdom which affect the Netherlands Antilles or Aruba are discussed.

Thus constituted, the Council of Ministers is the council of ministers for the entire Kingdom. The Minister Plenipotentiary acts on behalf of his government, which appoints and removes him. He is answerable to his own government, not to the States General.

The governments of the Netherlands Antilles and Aruba are also entitled to appoint, in addition to the Minister Plenipotentiary, a Minister with advisory vote to participate in the Council of Ministers' discussions, if a particular matter makes this desirable.

4.2. The Parliament of the Kingdom

If a statutory regulation has to be introduced which will also apply in the Netherlands Antilles and Aruba (a so-called "Kingdom Statute"), the States General constitutes the parliament of the Kingdom.

The Queen sends drafts of Kingdom Statutes, simultaneously with their submission to the States General, to the Representative Bodies of the Netherlands Antilles and Aruba. The latter have the right to examine the draft and to submit, if necessary , within a fixed period of time, a report on the draft before it is debated in the States General. The Minister Plenipotentiary is given the opportunity of attending the debate on the draft in the States General and of furnishing to the Houses such information as he considers desirable. The parliaments of the Netherlands Antilles and Aruba may send special delegates to the meeting of the States General at which the draft is debated, in order to furnish information. The Ministers Plenipotentiary and the special delegates are empowered to propose amendments during the debate in the Second Chamber (Lower House). Before the draft of the Kingdom Statute is put to the vote, the Ministers Plenipotentiary are given the opportunity to express their opinion on the draft. If one of them declares his opposition to the draft, he can request the House to postpone the vote until the next meeting. If, after the Minister Plenipotentiary has declared his opposition to the draft, the House accepts the draft with a majority of less than three-fifths of the votes cast, the debate is adjourned and further discussion takes place in the Council of Ministers of the Kingdom. Whenever one or more special delegates is present at the debate in the House, the rights referred to above devolve upon him.

4.3. The Council of State of the Kingdom

In accordance with the Charter, the Council of State, the most senior advisory body to the Crown, also acts as the Council of State for the whole Kingdom. At the request of the Netherlands Antilles and Aruba, a representative of each of the countries can join the Council. The Netherlands Antilles have availed themselves of this possibility.

4.4. The Supreme Court

If the government of the Netherlands Antilles or Aruba so desires, the Kingdom provides for the addition of a member or advisory member to the Supreme Court, the most senior legal body. As well as fulfilling its role within the Netherlands legal system, the Supreme Court also acts as the court of appeal for the Netherlands Antilles and Aruba.

5. The Governor

The Queen is the head of the government of the Kingdom and also of each of the three countries. Since circumstances prevent the Queen from exercising her powers in person in all three countries, Her Majesty appoints Governors to act as Her representatives in the Netherlands Antilles and Aruba. Together, the Council of Ministers and the Governor form the government of the Netherlands Antilles or Aruba.

However, the Governor is not only the representative of the Queen as the head of the government of the country, he also represents the government of the Kingdom. In this latter capacity his powers and responsibilities are laid down in a Kingdom Statute (the Governor's Instructions). The Governor is commander-in-chief of the armed forces in his country. To put it simply, he protects the general interests of the Kingdom. He may face the delicate task of acting against the wishes of the competent ministers, if he believes this is required in the interest of the Kingdom.

The Governor is only obliged to act if the interests of the Kingdom are clearly at stake. The fine line between a situation which warrants action and one which does not, cannot be laid down in a formula. Tact, sound policy and the ability to read the situation at any given moment are therefore essential qualities in a Governor if he is to be able to do his job effectively.

It is customary for the post of Governor to be held by a resident of the Netherlands Antilles or Aruba.

6. External relations

Foreign relations are maintained by the Kingdom as such, not its constituent parts. The conduct of Kingdom affairs is regulated by Section 2 of the Charter. Reference is made in particular to article 11, paragraph 3, which states that Kingdom affairs shall be conducted jointly, whenever matters affecting the Netherlands Antilles or Aruba are involved.

This in no way excludes the possibility of one of the countries representing its own interests abroad. This seems to imply an overlap between autonomy in internal affairs and Kingdom responsibility for foreign relations. However, it is not always the case that responsibility for these affairs is automatically assumed by the Organs of the Kingdom. Indeed, article 6 of the Charter states that, wherever possible, the Organs of the Countries shall participate in the conduct of such affairs. If the matter in question has no direct bearing on Kingdom policy as a whole, the country involved will generally act on its own behalf abroad, under the flag of the Kingdom (after having informed or consulted with the Ministry for Foreign Affairs or the relevant diplomatic mission).

This is in line with the longstanding endeavours to act in accordance with the spirit, and, naturally, the terms of the Charter in seeking to involve the overseas territories in the Western Hemisphere fully in the management of foreign relations within the Kingdom as a whole, while giving them as much elbowroom as possible in this field. Of course, this "exercise of independence" by the countries in matters in which they enjoy autonomy is subject to certain limitations, as indicated above. The unity of Kingdom policy must be preserved, the interests of another part of the Kingdom could be affected, the responsibilities of the Minister for Foreign Affairs and the tasks of the Kingdom's representatives abroad must be taken into account and inter-state rules and customs must be enforced. The Kingdom as a whole offers adequate co-ordination when these issues are at stake. The form and scope of this co-ordination depends on the degree of importance of the issues referred to. It could be that the countries only need to provide information to the Organs of the Kingdom.

However, consultation involving the Kingdom as whole or action by the Organs of the Kingdom may be necessary in some situations. The obligation to adhere to the Kingdom's rules on these matters is laid down in the Charter: Article 41 - the counterpart to Article 6 - which, after having stated that the countries conduct their affairs independently, goes on to say that the interests of the Kingdom are a matter of common concern to the countries. Article 37 is also significant in this connection, stating that the three countries shall consult each other on all matters which affect two or more of the countries.

One situation in which the countries act on their own behalf, is when negotiating treaties affecting matters which essentially fall within their autonomous sphere of interest and which only apply to one of the countries. It is entirely customary for the country involved to conduct negotiations itself, sometimes with help (logistic or otherwise) from the Kingdom. If, at any stage of the negotiations, it appears that the interests or affairs of the Kingdom are at stake, this is noted at that particular stage. It goes without saying that negotiations are ultimately held in accordance with the rules applying when the Kingdom accedes to a treaty; only the Kingdom has the authority to sign a treaty. This means that the Ministry of Foreign Affairs always submits the draft to the other countries and the competent bodies in the Netherlands.

This practice ensures that the interests of the Kingdom are taken into account throughout the proceedings and that a certain balance can be maintained between the interests affected by the treaty.

Further discussion in the Council of Ministers of the Kingdom, the Council of State of the Kingdom and the States General, and the States of the country or countries to which the treaty shall apply (not in the States of the countries where the treaty will not apply) are the cornerstone of the procedure. There is no question of the treaty being merely rubberstamped or given a cursory assessment by the Kingdom at any stage. However, it must always be remembered that the express desire on the part of one of the countries to sign a particular treaty is an important consideration and that denial of this can only occur with good reason. It is even less likely that the Kingdom would veto such a treaty on the grounds that it would not benefit the country concerned, as such a pronouncement would contravene the principle of national autonomy.

The entering into and pursuance of the type of negotiations referred to here is a question of interaction between the Organs of the Kingdom and the countries concerned, which will differ according to individual circumstances, but is based on mutual trust between the partners and protection of the interests of the Kingdom. Approval of such agreements can be granted either tacitly or by Kingdom Statute. If the government regards tacit approval as a possibility, it simultaneously submits the agreement with an explanatory memorandum to the States General, and to the representative bodies of the Netherlands Antilles and/or Aruba, in so far as the agreement affects these countries .

If neither the Second Chamber (Lower House), or 30 of its members, nor the First Chamber (Upper House), or 15 of its members, nor, if appropriate, the Minister Plenipotentiary of the Netherlands Antilles or of Aruba requests within thirty days of the submission of the agreement that the approval of it be subject to an act of parliament, approval is deemed to have been granted by the States General. If the request is made within thirty days, the government must submit a draft Kingdom Statute to the States General.

The full involvement of the Kingdom's parts in the Western Hemisphere in the management of foreign relations has entailed an increase in these countries' independence in this field over the years, particularly in matters which essentially fall within these countries' autonomous spheres of interest. This has certainly been the case with regard to neighbouring countries. The Kingdom has no desire to dispute geographical facts and natural relations with neighbouring countries.

Of course, differences of opinion or interpretation do sometimes occur, but in these cases it has always proved possible to find a solution within a Kingdom context.

Time and again it becomes clear that the two countries in the Western Hemisphere greatly appreciate the opportunity to maintain contacts and promote their own interests in the manner outlined above; the Kingdom's structure has not proved restrictive or inappropriate in this respect.