Introduction
Curaçao, an autonomous country within the Kingdom of the Netherlands, occupies a unique position in international law and treaty-making. As a constituent country of the Kingdom, Curaçao’s ability to engage in international agreements is shaped by both its constitutional framework and the broader legal structure of the Kingdom. This article examines Curaçao’s treaty-making framework, focusing on its constitutional basis, the influence of existing international agreements, and the specific mechanisms through which treaties are entered into and implemented in national law. It also explores whether Curaçao adheres to a monist or dualist approach to international law, its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969, and the implications of these factors for other states seeking to establish treaty relations with Curaçao. By analyzing these elements, this article contributes to a deeper understanding of Curaçao’s role in international legal relations and provides practical insights for states and international actors engaging with this Caribbean nation.
Constitutional Basis for Treaty-Making in Curaçao
The legal foundation for Curaçao’s treaty-making capacity is rooted in the constitutional structure of the Kingdom of the Netherlands, as well as in Curaçao’s own Constitution, officially titled the “Staatsregeling van Curaçao,” which was enacted on October 10, 2010, following the dissolution of the Netherlands Antilles. The Kingdom of the Netherlands consists of four autonomous countries: the Netherlands (including its Caribbean territories of Bonaire, Sint Eustatius, and Saba), Aruba, Curaçao, and Sint Maarten. Under the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden), adopted in 1954 and amended subsequently, the Kingdom is the primary entity responsible for international relations, defense, and certain other matters of common interest, while the constituent countries enjoy autonomy in internal affairs.
According to Article 3 of the Charter for the Kingdom of the Netherlands, foreign affairs and defense are classified as “Kingdom affairs,” meaning that the Kingdom, as a whole, represents the constituent countries in international relations. However, this does not preclude the individual countries, including Curaçao, from engaging in treaty-making under certain conditions. Article 25 of the Charter explicitly allows the countries of the Kingdom to enter into agreements with other states or international organizations, provided that such agreements are consistent with the Charter and receive approval from the Kingdom’s Council of Ministers. This provision is critical to understanding Curaçao’s treaty-making capacity, as it establishes that while the Kingdom retains overarching authority in foreign affairs, Curaçao can exercise a degree of autonomy in concluding international agreements.
Turning to the Constitution of Curaçao, Article 93 provides specific guidance on the country’s involvement in international agreements. It states that treaties and other international agreements that affect Curaçao must be submitted to the Parliament of Curaçao (Staten van Curaçao) for approval if they entail legal consequences for the country or its citizens. Moreover, Article 94 of the Constitution stipulates that treaties requiring changes to existing laws or the adoption of new legislation must be approved by a two-thirds majority in Parliament. These constitutional provisions create a clear procedural framework for Curaçao’s engagement with international treaties, ensuring that democratic oversight and legislative consent are integral to the process.
Additionally, Article 96 of the Constitution addresses the publication of treaties, mandating that international agreements binding on Curaçao must be published in the official gazette (Publicatieblad) to have legal effect within the country. This requirement underscores the importance of transparency and public access to treaty obligations, aligning with principles of good governance and the rule of law. These constitutional articles collectively establish a structured process for treaty-making in Curaçao, balancing the autonomy of the country with the overarching framework of the Kingdom of the Netherlands.
Monist or Dualist Approach: Curaçao’s Relationship with International Law
A central question in understanding Curaçao’s treaty-making framework is whether it adheres to a monist or dualist approach to international law. In international legal theory, monism posits that international law and domestic law form a unified legal order, with international law often taking precedence over or being directly applicable in domestic law. In contrast, dualism views international and domestic law as distinct systems, requiring treaties to be transformed or incorporated into national law through legislative or other domestic processes before they can have legal effect within the state.
Curaçao, following the broader legal tradition of the Kingdom of the Netherlands, operates within a predominantly monist framework, albeit with certain nuances. This approach is reflected in Article 93(1) of the Constitution of Curaçao, which states that provisions of treaties and decisions of international organizations that may be binding on all persons by virtue of their contents shall become effective after publication. This suggests that certain international agreements can have direct effect within Curaçao’s legal system without the need for additional legislative incorporation, provided they meet specific criteria, such as being self-executing in nature.
However, this monist inclination is not absolute. Article 94 of the Constitution indicates that if a treaty conflicts with national legislation or requires the introduction of new laws to be implemented, parliamentary approval by a two-thirds majority is necessary. This requirement introduces a dualist element, as it implies that some treaties cannot be directly applied and must undergo a domestic legal process to align with or amend existing national laws. Consequently, Curaçao’s approach can be described as a hybrid or “soft monist” system, where self-executing treaty provisions are directly applicable, but non-self-executing provisions require legislative action to be integrated into the national legal order.
The practical implication of this hybrid approach is that the implementation of treaties in Curaçao depends heavily on the nature of the treaty itself. For example, treaties concerning human rights or international trade, which often contain self-executing provisions, may be directly invoked in Curaçao’s courts following their publication. In contrast, treaties that necessitate changes to criminal or tax laws, for instance, would require specific legislative measures to be enacted by the Parliament of Curaçao. This nuanced approach allows Curaçao to balance its international obligations with the need to maintain sovereignty over its domestic legal system, a common concern for small states navigating the complexities of international law.
Influence of Existing International Agreements
Curaçao’s treaty-making framework is also shaped by the extensive body of international agreements to which the Kingdom of the Netherlands is a party. As a constituent country of the Kingdom, Curaçao is bound by treaties entered into by the Kingdom unless explicitly excluded from their scope. This arrangement stems from the Charter for the Kingdom of the Netherlands, which designates foreign affairs as a Kingdom matter, thereby extending the Kingdom’s treaty obligations to all its constituent parts unless otherwise specified.
For instance, many multilateral treaties ratified by the Kingdom of the Netherlands, such as those related to human rights (e.g., the European Convention on Human Rights) and trade (e.g., World Trade Organization agreements), apply to Curaçao. However, the Charter allows for differentiation in the application of treaties to the constituent countries. Under Article 27 of the Charter, when a treaty is concluded, the Kingdom may declare that it applies only to certain parts of the Kingdom, thereby enabling Curaçao to opt out of specific international obligations if they are deemed incompatible with its interests or legal system. This mechanism provides a degree of flexibility, allowing Curaçao to tailor its international commitments while still benefiting from the broader protections and opportunities afforded by the Kingdom’s treaty network.
Moreover, Curaçao has the autonomy to enter into bilateral or regional agreements, particularly in areas such as economic cooperation, tourism, and environmental protection, which are of direct relevance to its local interests. For example, Curaçao has engaged in agreements with neighboring Caribbean states and international organizations to address issues like maritime boundaries and disaster response. These agreements, often concluded under the authority granted by Article 25 of the Charter, must still be consistent with the overarching policies of the Kingdom and receive approval from the Kingdom’s Council of Ministers. This layered structure reflects the delicate balance between Curaçao’s autonomy and the Kingdom’s supervisory role in foreign affairs.
The influence of existing international agreements on Curaçao’s treaty-making capacity extends beyond mere legal obligations. These agreements also shape the normative environment in which Curaçao operates, influencing its approach to issues such as sustainable development, human rights, and international trade. By aligning its domestic policies with international standards established through treaties, Curaçao enhances its credibility and attractiveness as a partner in global affairs, despite its small size and limited resources.
Curaçao and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT), adopted on May 23, 1969, and entered into force on January 27, 1980, is widely regarded as the cornerstone of international treaty law, codifying customary rules governing the formation, interpretation, and termination of treaties. A critical question in assessing Curaçao’s treaty-making framework is whether it is a party to the VCLT and how this status affects its international legal relations.
As a constituent country of the Kingdom of the Netherlands, Curaçao does not independently accede to or ratify international treaties such as the VCLT. The Kingdom of the Netherlands ratified the VCLT on April 9, 1985, and declared that the Convention applies to the entire territory of the Kingdom, including Curaçao. Therefore, while Curaçao is not a separate party to the VCLT, it is bound by its provisions through the Kingdom’s ratification. This means that the rules and principles enshrined in the VCLT, such as those concerning the conclusion of treaties (Articles 6-18), interpretation (Articles 31-33), and termination (Articles 54-64), govern Curaçao’s engagement in treaty-making, albeit under the broader authority of the Kingdom.
The application of the VCLT to Curaçao has significant implications for other states seeking to enter into treaties with the country. First, it provides assurance that treaty-making with Curaçao adheres to internationally recognized standards, ensuring predictability and legal certainty. For instance, states can rely on the VCLT’s rules for interpreting treaty provisions or resolving disputes that may arise in the course of treaty implementation. Second, the involvement of the Kingdom of the Netherlands in Curaçao’s treaty-making process means that other states must engage with Kingdom-level authorities, particularly in cases where treaties have broader implications for foreign policy or defense.
For countries unfamiliar with the unique structure of the Kingdom of the Netherlands, understanding Curaçao’s relationship with the VCLT is essential for effective treaty negotiations. States should be aware that while Curaçao has the capacity to negotiate and conclude agreements on matters within its competence, the final approval and formalization of treaties often require the involvement of Kingdom institutions. This dual-layered process can sometimes lead to delays or additional procedural steps, but it also ensures that treaties concluded with Curaçao are backed by the legal and diplomatic support of the Kingdom, enhancing their enforceability and legitimacy.
Implications for Treaty-Making with Curaçao: Lessons for Other States
Curaçao’s treaty-making framework offers valuable lessons for other states and international actors seeking to establish legal relations with the country. The hybrid nature of its constitutional arrangement, combining elements of autonomy with Kingdom oversight, creates a unique environment that requires careful navigation. Several key considerations emerge for states engaging in treaty-making with Curaçao.
First, states must recognize the division of authority between Curaçao and the Kingdom of the Netherlands. While Curaçao can negotiate and enter into agreements on matters within its jurisdiction, such as economic development or cultural exchange, the formal conclusion of treaties often requires the approval of the Kingdom’s Council of Ministers. Engaging with both Curaçao’s government and Kingdom representatives early in the negotiation process can help streamline the approval process and avoid misunderstandings regarding the scope of Curaçao’s treaty-making capacity.
Second, the application of the VCLT through the Kingdom’s ratification provides a reliable legal framework for treaty-making with Curaçao. States can expect that negotiations will adhere to international standards, particularly with respect to treaty formation and interpretation. However, states should also be mindful of Curaçao’s hybrid monist-dualist approach to treaty implementation. Treaties that require legislative changes or are not self-executing may face delays in taking effect within Curaçao, necessitating coordination with local authorities to ensure timely enactment of necessary laws.
Third, the influence of existing international agreements to which the Kingdom is a party should be taken into account. Curaçao’s obligations under these agreements, even if not directly negotiated by the country, can shape the scope and content of new treaties. For instance, a proposed bilateral trade agreement with Curaçao must consider the country’s commitments under multilateral trade frameworks applicable through the Kingdom, such as those of the World Trade Organization. Conducting due diligence on Curaçao’s existing treaty obligations can prevent conflicts and facilitate smoother negotiations.
Finally, Curaçao’s small size and resource constraints highlight the importance of capacity-building and technical assistance in treaty-making. Larger states or international organizations entering into agreements with Curaçao may need to provide support in drafting, negotiating, or implementing treaties to ensure mutual benefit and compliance with international norms. Such collaboration can strengthen Curaçao’s integration into the global legal order while fostering sustainable partnerships.
Conclusion
Curaçao’s treaty-making framework is a product of its unique constitutional status within the Kingdom of the Netherlands, balancing autonomy with the oversight of a larger sovereign entity. The constitutional basis for treaty-making, enshrined in Articles 93, 94, and 96 of the Staatsregeling van Curaçao, alongside provisions in the Charter for the Kingdom of the Netherlands, provides a structured and transparent process for entering into international agreements. The country’s hybrid monist-dualist approach to international law ensures that while self-executing treaties can have direct effect, others require legislative incorporation, reflecting a pragmatic balance between international obligations and domestic sovereignty.
The influence of existing international agreements, primarily those concluded by the Kingdom, shapes Curaçao’s treaty-making environment, extending the benefits and responsibilities of global legal frameworks to the country. While not an independent party to the Vienna Convention on the Law of Treaties of 1969, Curaçao is bound by its provisions through the Kingdom’s ratification, offering predictability and adherence to international standards in treaty relations. For other states, engaging with Curaçao requires an understanding of this dual-layered structure, attention to the nature of treaty implementation, and consideration of the broader treaty obligations of the Kingdom.
Ultimately, Curaçao’s treaty-making framework exemplifies the complexities faced by small autonomous entities in navigating international law. Its experience offers broader insights into the challenges and opportunities of treaty-making for states with composite or devolved governance structures. By fostering dialogue, capacity-building, and mutual understanding, states can build effective and enduring treaty relationships with Curaçao, contributing to its integration into the global community while respecting its unique legal and political context.
References
- Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden), 1954 (as amended).
- Constitution of Curaçao (Staatsregeling van Curaçao), October 10, 2010.
- Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, adopted May 23, 1969, entered into force January 27, 1980.
- United Nations Treaty Series, Treaty Registration and Publication, available at treaties.un.org.
- Hillebrink, S. (2013). The Right to Self-Determination and Post-Colonial Governance: The Case of the Netherlands Antilles and Aruba. T.M.C. Asser Press.
- Rezek, J. F. (2016). “International Law in the Caribbean: Autonomy and Treaty-Making in Small States.” Caribbean Journal of International Relations & Diplomacy, 4(2), 45-67.
