One Island, Two Nations and a European Union: St. Martin

Gerhard Hoogers & Gohar Karapetian

University of Groningen & Carl von Ossietzky-University of Oldenburg

Named after the famous early Christian Saint Martin of Tours, on whose name day in 1493 Columbus reached the island, St. Martin is the smallest island in the world falling under the sovereignty of two different countries and the only place in the Caribbean under the sovereignty of   two different EU Member States: France and the Kingdom of the Netherlands. Since 1648, the basis for the division of the island, and of the very uneventful and frugal coexistence of the two parts, has been the Treaty of Concordia. On the basis of this Treaty, the island is not only partitioned, but the French and Dutch nationals residing on both sides of the island have the right to freely move, live and work on both sides of the island. Up to the present day, France and the Kingdom of the Netherlands still adhere to the legal validity of this Treaty. The Concordia Treaty, facilitating frictionless movement of persons and trade, is an illustration of the fact that culturally and socially, both parts of the island have many characteristics in common. Paradoxically, though, this commonality may be under threat from the very fact that the whole of the island is conjoined with the European Union, a polity founded with the aim of removing borders and barriers between countries and peoples.

Over the past 370 years, the legal status of both sides of the island has changed many times. Over time, the Dutch side, Sint Maarten, has gained the status of one of the four constituent Countries of the Kingdom of the Netherlands (the other three being the Netherlands proper, Aruba and Curaçao). As an autonomous Country within the Kingdom, Sint Maarten has its own Constitution, Parliament and Government, creating its own laws on the vast majority of subjects that, under the Charter for the Kingdom of the Netherlands, fall within its autonomous powers. Saint Martin, on the other hand, underwent the French development of integrating its former colonies, especially those that were already part of the French Empire in the 17th century, more and more into the Métropole. As a Collectivité d’outre-mer, French domestic law is still generally applicable and French citizens living there enjoy complete voting rights for the French political institutions.

This very different constitutional status is, to a certain extent, mirrored by the different status both parts of the island enjoy under European law. It is here that the problem mentioned above arises. Whereas Sint Maarten is an OCT (Overseas Country and Territory), only loosely tied to the legal framework of the EU, Saint Martin is an OR (Outermost Region), where essentially all EU law is in force. On the other hand, both the citizens with a Dutch and those with a French passport on the island are by virtue of their nationality citizens of the EU. Because of its autonomy under Dutch and European law, Sint Maarten is entitled to regulate the entry, residence and exit to its own territory autonomously. It has done so via the Landsverordening Toelating en Uitzetting (LTU). Under the LTU, only Dutch nationals born in Sint Maarten or Curaçao, Bonaire, Sint Eustatius and Saba – and under more stringent conditions Dutch nationals from Aruba – have free access to Sint Maarten. Everyone else needs some form of permit from the Sint Maarten Government. Saint Martin falls under the French alien and asylum code. Under this French law, all citizens from one of the countries of the European Economic Area (EEA) and Switzerland have free access to the territory of the Collectivité. Both parts of the island are in compliance with the European norms in force respectively; Saint Martin also fully complies with the free movement granted by the Concordia Treaty. Sint Maarten’s LTU does not, however.

This problem is mirrored by another: is the Concordia Treaty itself applicable in the context of the divergence in constitutional and EU status? We believe that the Concordia Treaty cannot be invoked for the benefit of, for instance, French nationals who want to move to Sint Maarten, because that would violate binding principles of EU law. In its Commission v. Italy and other decisions, the European Court of Justice (ECJ) has made clear that such agreements can never be invoked with the aim of infringing upon the workings of the EU-Treaties and the autonomous legal order of which they are the foundation. This might even go so far as to oblige a Member State to denounce a prior agreement with a third state. However, the question whether the Concordia Treaty is in line with EU law remains unanswered. From the Eman & Sevinger decision of the ECJ, it follows that the Kingdom of the Netherlands had to redress the unequal treatment of its nationals: by regulating the right to vote of all Dutch nationals living outside of the Netherlands under the same terms, either by limiting it to the Dutch nationals living outside of the Kingdom, or by extending it to Dutch nationals living in Aruba and the Netherlands Antilles. From this point of view, it seems that the Concordia Treaty – while it cannot be enforced by either of the two sovereign powers on St. Martin – is in violation of the EU principle of non-discrimination as interpreted by the ECJ. From that perspective, Sint Maarten’s choice would either be to extend the right to live and work in Sint Maarten to all EU-citizens resident in Saint Martin, or to negate that right to French nationals there, which means simply upholding its present LTU. The latter would imply the introduction of regular border controls.

In a way, it is rather ironic that in creating a real border by introducing regular controls on the movement of persons between both parts of the island a suitable instrument could be found – perhaps even the only instrument, given the peculiar situation on the island – to ensure a key feature of the EU’s legal order, the equal treatment of those enjoying its citizenship. Since the developments created by the COVID-19 pandemic, both local authorities (but mostly those on the French side) have closed the border between Sint Maarten and Saint Martin on multiple occasions, violating the Treaty of Concordia, but meanwhile setting up a precedent that might in the future be used to ensure that neither part of the island discriminates between EU citizens. The paradox that thus emerges is that the European Union, with its central aim to bring down walls and borders between its Member States and to create free movement for its citizens and all its instruments to provide for this, has developed into a legal order that perhaps necessitates the enforcing of a border between two territories that are part of EU Member States and that never had a physical border between them. It would be a sad outcome, were this to be the case. It also illustrates that the logic of the ‘ever-closing union’ between equal EU citizens would neglect the particular needs of a small Caribbean society.

Prof. dr. H.G. Hoogers is a senior lecturer in constitutional law in the Faculty of Law at the University of Groningen (The Netherlands) and honorary professor in comparative constitutional law, Carl von Ossietzky-University of Oldenburg (Germany).

Dr. G. Karapetian is assistant professor in the Faculty of Law at the University of Groningen (The Netherlands).

Suggested citation: HG Hoogers and G Karapetian, ‘One island, two nations and a European Union: St. Martin’ IACL-IADC Blog (12 November 2020) https://blog-iacl-aidc.org/constitutionalism-and-pluralism-in-overseas-france/2020/11/12/one-island-two-nations-and-a-european-union-st-martin