The outdated oil refinery in Willemstad, Curaçao, has been seriously damaging the health of inhabitants of several neighbouring districts for many decades. According to Herman Bröring, social debate on the island is now at a point that gives the government of the Kingdom legal grounds for intervening. Bröring, professor of law (integrative law studies) at the University of Groningen, thinks that this is the way forward. ‘It’s definitely possible in legal terms, but are politicians willing to step in?’
For many years, the Isla refinery (1918) was owned by Shell. The complex was later sold to Curaçao for the symbolic sum of one Dutch guilder, and has been rented out to a Venezuelan state company ever since . There has been concern about pollution from the seriously outdated installations in Willemstad for many decades. ‘It’s quite simply a dirty refinery’, says Bröring, who bases this statement on his own observations. ‘You don’t need to be a chemist to realize that’s something’s very wrong when you walk through Willemstad.’
The trade winds continually blast emissions containing sulphur dioxide and particulate matter across the neighbouring districts in Willemstad, which are home to the poorer inhabitants of the island. ‘It is difficult to say precisely how this is affecting life expectancy in the area, but there’s no doubt whatsoever that this is causing serious damage to the health of the people living in these districts.’
The government is allowed to take action when public health is in serious jeopardy. Bröring: ‘The question in this particular case is which government should intervene? Since 10 October 2010, the Kingdom of the Netherlands has consisted of four separate countries: Curaçao, Aruba, St. Maarten and the Netherlands. In principle, this is a matter for the Curaçao government. But a provision known as the Charter for the Kingdom of the Netherlands contains an article that allows the government of the Kingdom to intervene in any of the four countries when all other remedies have failed.’
The article refers to the reliability of the public administration. ‘It is a very serious means of redress’, acknowledges Bröring. ‘It is meant to cover grave situations in which the decision-making processes and law enforcement in the country itself have failed and legal recourse is proving inadequate. It’s a complicated provision, intended as an ultimum remedium (ultimate remedy) for governments. Citizens cannot invoke it themselves and there must be no doubt that all other legal remedies have been tried and proved unsuccessful.’ In Bröring’s opinion, this point has now been reached; after decades of persistent wrangling, nothing has actually changed. ‘The environmental regulations (which are already far too lenient) are being ignored and checks for compliance fall seriously short of the mark. People’s fundamental right be protected from damage to their health is being systematically violated.’
A number of years ago, Bröring was one of a group of legal advisors who advised against the short-term introduction of full European law in the Caribbean part of the Kingdom. ‘The problem would not have arisen under European law: the Isla refinery simply does not satisfy European environmental standards. The same applies to numerous other areas. But in Curaçao, Aruba and St. Maarten, things are organized very differently from the way they are in Europe and the Netherlands. We thought that enforcing the full strength of European law in the Caribbean at such short notice was a bridge too far.’
However, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) does apply in the Caribbean part of the Kingdom, and according to Bröring, this provision provides good grounds for intervening to protect citizens from pollution from the refinery. The SMOC environmental movement on Curaçao is currently pursuing this avenue.
Although strictly speaking the government of the Kingdom does need to await a decision on the ECHR, Bröring holds little hope of intervention. ‘It’s not about whether they can; it’s about whether they want to.’ Relations between the four countries in the Kingdom are already strained. ‘The Netherlands and Curaçao have had a fairly stormy relationship over the past few years. The government may prefer to wait until the rental period for the refinery expires in 2019, and then refuse to contemplate extension without modernization. But is the government willing to put relations under further pressure by intervening earlier?’
Bröring thinks that the time has come to think seriously about invoking Article 43 of the Charter. ‘I understand that people are reticent and would rather wait for the outcome of the ECHR procedure in Strasbourg, but in the meantime, we could be doing a lot more. Why do we feel able to intervene in financial problems, but not when there is structural evidence of serious damage to public health?’
Herman Bröring is professor of law (integrative law studies) at the University of Groningen and a widely quoted expert in the field of legal relations with overseas territories within the Kingdom of the Netherlands. Bröring is currently using his expertise to help compile an edition of ZEMBLA about the refinery, which was aired on 21 March.
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