07 July 2008

US Virgin Islands in 2017

The presentation below entitled “US Virgin Islands 2017” was made by Dr. Carlyle G. Corbin, International Advisor on Democratic Governance, to a conference on Virgin Islands 2020 sponsored by the Virgin Islands Institute of Development which convened at the National Press Club in Washington, D.C. on 27th June 2008. The text of the presentation was made available by permission.


Barring any extraordinary political developments over the next several years, the US Virgin Islands in the year 2017 will observe the centennial under United States jurisdiction as an unincorporated territory. This is less than a decade away. The constitutional conventions in the territory which convened in the 1960s and 1970s to draft a local constitution based on the present political status did not culminate in a local constitution. Subsequent attempts to deal with the broader picture of modernising the political status of the territory in the 1980s and 1990s resulted in an inconclusive referendum in 1993. Thus, the US Virgin Islands reverted to the current status quo, and is one of sixteen remaining dependent territories/colonies in the world nine years before the centennial.

An Historical Context

At the turn of the 20th Century, a number of European countries had vast territorial holdings in Africa, Asia and the Pacific, Latin America and the Caribbean and elsewhere. Virtually all of Africa was under the control of European powers which carved up the continent with the aim of taking the human and material wealth of Africa to fuel European prosperity. Much the same applied in the Pacific region where territories were acquired as the spoils of war, as in the case of Guam and the Philippines after the defeat of Spain in 1899. The Trust Territory of the Pacific Islands (TTPI) administered by the US under a United Nations mandate emerged as three separate military-strategic associate states on the one hand (Federated States of Micronesia, Marshall Islands and Palau), and an initially-autonomous territorial status on the other hand (Northern Marianas).

The US Virgin Islands had a similar history, spending many more years under Danish jurisdiction as has been spent thus far under the United States. Indeed, the transfer from Denmark to the U.S. was done in the form of a land purchase by way of the 1917 Treaty of Cession.

At the end of WWII, many of the territories acquired by the developed countries still remained as colonial possessions. Part of the reason for the creation of the United Nations in 1945 was to address the disposition of these territories. Since then, over eighty territories have achieved a full measure of self-government, either through integration with another country with full political rights, free association with another country or political independence.

All of these self-governing models exist in the Caribbean. In addition to the independent countries, the French West Indies of Martinique, Guadeloupe and French Guiana are examples of political integration, while the former territories of the Netherlands Antilles and Aruba achieved free association with the Netherlands. These are the three forms of genuine self-government with minimum standards set by the United Nations in its resolutions.

Other territories like Greenland, the Faroe Islands, and others have internationally recognised political arrangements with substantial autonomy, while also enjoying full representation in the parliament of the cosmopolitan country with which they share citizenship.

Still others are progressing in stages. The Caribbean/Atlantic territories of the Turks and Caicos Islands and the British Virgin Islands have new constitutions, but have not yet achieved full internal self-government. The Cayman Islands, Montserrat, and Anguilla are in varying stages of constitutional review leading to a modernised territorial status. Bermuda with its advanced political status views independence as an eventuality. Puerto Rico continues to pressure Congress – and now the United Nations – to come to a final determination as to the self-governing nature of its commonwealth arrangement, or whether it should move towards the permanent alternatives of statehood, free association or independence.

U.S. Virgin Islands

Amidst these political developments in the region, the US Virgin Islands is in the midst of its fifth attempt to draft a local constitution based on the present status. Invariably, the question of the relationship of a constitution with a final determination on political status has once again arisen.

Many have supported the view that the political status of the territory should be addressed first, with a constitution written subsequently based on the chosen status. Since the present dependency status was never meant to be permanent, as it is not sufficiently autonomous, a permanent status should be achieved at some point. A local constitution based on the present status will not solve this dilemma. Integration as one of the fifty states would suffice. It would be more likely, however, that such an unlikely move to integration would be as a part of an existing state, in consideration of the small population of the US Virgin Islands, as well as similar ethnic considerations which hampered US Congressional consideration of statehood for Puerto Rico in the 1990s. Other alternatives such as independence and free association are also viable alternatives, but it would only be through an updated analysis on the implications of these options of political equality that the people would be able to make an informed decision.

Territorial lawmakers, however, have chosen the approach of writing a local constitution. This has provided an opportunity for public discussion on political and constitutional issues which would not have ordinarily been examined. Since the first and only political status referendum of 1993, no public discourse had been held on these issues until 2006 when the University of the Virgin Islands received a mandate to begin a political education process.

Both the political status education process of the 1990s, and the present constitutional convention, have at least one thing in common – in both cases, the US Government, as the duly authorized administering power under the United Nations (UN) Charter, rejected requests for financial assistance from the territorial government to conduct a sustainable public education programme. This rejection was extraordinary given the specific international legal obligations of the US under Article 73 (b) of the UN Charter to actively promote self-government in the territories under its administration. This denial of assistance coincides with the support provided internationally for the promotion of specific forms of democratic governance in many countries throughout the world, and is a disappointing indication of the apparent low level of priority given to the political development of the territories via a process of self-determination.

Perhaps a President Obama government, if successful in the November 2008 election in the US, would re-consider the importance of fulfilling the US international obligations to the self-government of the territories, given the overwhelming support enjoyed by that candidate in the territory, even as the territories have no voting rights in US elections. This democratic deficiency is a feature of the dependency status. It should be noted that political promises were made by both US Democratic Party candidates Barack Obama and Hilliary Clinton in advance of the democratic primary in Puerto Rico to address the political status dilemma in that territory. No such promises of support for political status development in the US Virgin Islands have been reported by any of the US political candidates - perhaps because no such political status dilemma is recognised.

The Difference between States and Territories

As the Fifth Constitutional Convention of the US Virgin Islands proceeds to draft a document for review by Washington, an important point to be taken into account is that a constitution for a dependent territory, is not the same as a constitution for an integrated state of the US. This is simply because a territory is not a state. A territorial constitution may be structured as a state with governors, legislatures, state directors and state plans. There is a territorial government office in the Hall of the States in Washington, for example. All this, of course, does not make for a state, but it does feed the mis-perception that the territory is a sort of “virtual state.”

The reality is quite to the contrary, since a dependent territory does not have the political power of a state through voting rights in the US House of Representatives, and the U.S. Senate. Persons in the US Virgin Islands, or in any of the other four US-administered territories of American Samoa, Guam, the Northern Mariana Islands and Puerto Rico do not have voting rights for the US President. Perhaps as a means of confirmation of their international personality, territories do have “sports autonomy,” and send athletic teams to international competition such as the Olympic Games, the South Pacific Games, the Pan American Games and other international athletic competitions where countries are represented separately. Thus, the category of Non-Independent Countries (NICs) was created within the United Nations system at the beginning of the 1990s to distinguish these dependencies from integrated parts of other countries.

A fundamental difference between integrated states or departments, and the territories is that the dependencies are governed by the Territorial Clause of the US Constitution. States are not. The full US constitution applies only to states, whereas in territories, only the fundamental parts of the US constitution apply. In 1991, the US General Accounting Office produced an article-by-article analysis of which provisions of the US Constitution apply, and which do not - so that the limitations would be clear.

Thus, the system of US dependency governance is underpinned by the Territorial Clause of the United States Constitution which gives the US Congress the power to legislate for the territories without their consent, and often above their objection. Unilateral changes in the economic development incentives programme in the US Virgin Islands is one of the most recent example of the use of this practice. Various United Nations reports in recent years have determined that as long as this unilateral authority exists, a territory could not be considered self-governing.

This contrasts, for example, with the autonomy enjoyed by other territories. Greenland and its relationship with Denmark, for example, provides a clear distinction between a sufficient measure of self-government and political dependency. Greenland has the authority to determine, with a few exceptions, which Danish laws and treaties apply to it, while at the same time sharing Danish citizenship and sending voting members to the Danish Parliament. Such a mutual consent provision was included in the US Virgin Islands proposed commonwealth arrangement which was one of the political status options before the voters in 1993. The option provided the opportunity for in-depth discussion on the elements of autonomy, but was cut short due to internal political considerations favouring the status quo.

The Autonomous Alternative

It is rather disappointing that the “strict interpretationists” of the US Constitution generally dismiss as “out of hand” for the US-administered territories anything approaching the level of autonomy enjoyed by Greenland, the Netherlands Antilles or other autonomous territories. Guam found this out the hard way in the 1990s with the US rejection of its autonomous commonwealth status proposal after years of expensive negotiations.

The Northern Mariana Islands is also experiencing this in 2008 as it is attempting to adjust to a significant reversal of what was once considered a model autonomous relationship. Legislation has even been introduced in the Marianas Legislature to review the present political arrangement, although the level of support for the measure is not clear, especially given that the new arrangement will provide for a “non-voting delegate” like the other four territories. Substantial political interest in the new elected position of non-voting delegate, however, has diverted attention from the projected negative economic implications of the “reverse delegation” of power. For its part, the Northern Marianas Government is considering whether to file a legal complaint against the US Government over this reversal of autonomy, specifically as related to the removal of the territory’s power to control its labour laws.

To their credit, members of the US Virgin Islands Constitutional Convention are seeking to introduce varying degrees of creative autonomy in the draft constitution, within the very real limitations of the enabling federal legislation which requires that the constitution must be under the sovereignty of the U.S. This approach may serve to define the parameters of territorial status in 2008, as far as the level of autonomy that can be achieved as an unincorporated territory. It would be a strategic move to extend the time of the Fifth Constitutional Convention to allow sufficient time for a draft constitution to be submitted to a possible Democratic Party Justice Department, which may be a bit more flexible on these issues than the present Bush Administration. Then again, any new government in Washington could simply rely on the pre-existing interpretations of the federal bureaucracy which have prevailed for the last several decades. Indeed, it was the Republican – led US Congress which had shielded the Marianas from a Democratic Party-led political assault on its autonomy. The shield was dissolved when the US Congress changed hands.

One thing is certain. There is little consistency in the parameters setting the level of autonomy permitted in an unincorporated territory. An autonomous power obtained in the 1980s by the Northern Marianas to control immigration and enact their own labor laws through exemptions from federal law might not be necessarily permitted, if requested by other territories in 2008.

References in the Puerto Rico Constitution adopted in 1952 on issues such as Puerto Rican citizenship, the Spanish language and residency requirements for holding office, were endorsed by the US Congress of that time, but this was achieved in a different era. Would they be achievable in 2008 – especially in view of the findings of the two Bush White House Reports on Puerto Rico in 2005 and 2007 which served to re-define Puerto Rico’s status as less autonomous than originally perceived ? The governor of Puerto Rico spoke on the ramifications of these issues at the United Nations Decolonisation Committee earlier this year.

Autonomous provisions related to land ownership and native rights in the Northern Mariana Islands Commonwealth Covenant with the US might prove unattainable in other territories today – even as an important issue continues to be the loss of land by the native population in the US Virgin Islands amid rising land values fueled by external investment and land speculation.

The US Virgin Islands Fifth Constitutional Convention is also seeking to address the very essence of self-definition which is a necessary prerequisite to self-government. One proposal identifies a native Virgin Islander as a descendent of those specifically mentioned in the Treaty of Cession of 1917 as the inhabitants of the territory at that time. A reference to this group of original Virgin Islanders, in the Preamble of the draft constitution, would be appropriate as an acknowledgement of the origins of a people who were overwhelmingly of African descent, and who had been recognised at the time of the transfer from Denmark to US jurisdiction. The recognition of the cultural identity of a people should not be confused with the citizenship conferred upon them. It is to be recalled that US citizenship was not granted to the native Virgin Islander immediately at the transfer, but only following ten years of statelessness.

Political Status Modernization

In any case, the US Virgin Islands will have to organize a mechanism sooner, rather than later, to modernize its political status after the completion of its fifth internal constitutional exercise. Prior to that, there had been several political status initiatives consistent with a 1979 policy of US President Jimmy Carter. These initiatives included a Status Commission headed by the former Senator Earle B. Ottley in the early 1980s, followed by a Committee of the Legislature chaired by former Senator Lorraine L. Berry in the mid 1980s. Neither of these two bodies succeeded in conducting a referendum, but did create an important body of research.

The latest Status Commission, created in 1988 by Gov. Alexander A. Farrelly, succeeded in facilitating the only referendum in US Virgin Islands history on political status options in 1993. However, the vote failed to receive the required 50 % of those registered, and the result was declared null and void. The territory, therefore, reverted to the status quo political option, by default. The people did not vote in favour of it, as it is often erroneously projected.

The deep emotions generated in the public during the status discussions, which were often fueled by mis-information on the ramifications of the options, created a serious vacuum of dialogue on issues of political development for over a decade. No legislation was introduced, and no public discussions were held during that period. There is also a serious question as to whether any of the recent history of the referendum process has been adequately and accurately reflected in the historical record.

Thus, it wasn’t until 2004, or some eleven year after the political status referendum, that a bill was adopted to create a Fifth Constitutional Convention – not to deal again with the overriding political status question, but rather to try to draft a constitution based on the present dependency status.

Looking Forward

This is the state of play in 2008, as the territory moves with all deliberate speed towards the centennial – 2017. Will the US Virgin Islands remain as an un-incorporated dependency, albeit with a constitution? Will there be renewed emphasis on addressing the political status options, and will there be a final status determined? Or will we consider a dependency constitution the end of the political development – notwithstanding the continued applicability of the Territorial Clause of the US Constitution?

In a broader sense, are the minimum requirements of democratic legitimacy met by a political system of governance which maintains unilateral authority over a territory by a government in which the territory has no voting rights?

Do the people have a problem with being equated with “territory or other property,” and referred to in legislation as offshore possessions, insular areas, and similar terms which many consider insensitive given the historical legacy of slavery?

These are a few questions fundamental to the future political development of the US Virgin Islands. Is the society comfortable with the present arrangement as an unincorporated territory whose government, according to a federal court ruling, exists only by the “legislative grace of Congress?” If so, then there should be no surprise when laws, regulations and other decisions continue to be unilaterally applied, without the consent of the governed, and often against their wishes with unknown economic repercussions. I

But if an awareness is developed among the people and its leadership that the dependency status has become anachronistic, then much work lies ahead. In the first instance, there would have to be a process formulated to sensitize the society of the existing democratic deficiencies inherent in the prevailing dependency status. This would be followed by the development of a viable, democratic model of a full measure of self-government for the 21st Century based on internationally recognised standards of full political equality and democratic governance.

By the year 2017, the world should know whether the people would have chosen action or acquiescence.