29 June 2010

US House Mandates US Virgin Islands Constitutional Convention to Reconsider Autonomous Proposals


The US House of Representatives on 29th June 2010 adopted Senate Joint Resolution 33 which calls on the Fifth Constitutional Convention of the US Virgin Islands to reconvene to consider US Justice Department objections regarding certain autonomous provisions contained in the proposal. The Department considered the provisions as inconsistent with the applicability of the US Constitution (as it applies to the dependency territory). This is the latest development in the constitutional process of the territory where a proposed constitution was adopted in May 2009 by the required 2/3 of the 30 member Convention delegates.

The elected governor of the territory, John P. de Jongh, initially expressed opposition to a number of aspects contained in the text, and had declined to transmit the proposed constitution to the US Congress upon its receipt in May, 2009. He was later ordered by the territory’s court in December, 2009 to forward the text for US consideration.

Confident that the proposed constitution would ultimately be forwarded to Washington, Convention President Gerard Luz James addressed the Fourth Committee of the United Nations in October, 2009 where he explained the rationale for the respective provisions of the proposal based on the Convention’s own legal analysis. The US Virgin Islands is one of sixteen non self-governing territories listed by the United Nations under Chapter 11 (Article 73) of its Charter.

Following the transmittal of the proposal to the White House in December 2009, the process resumed in earnest. Convention President James and three additional members of the Convention defended the document before a US Congressional hearing of the US House of Representatives Subcommittee on Insular Affairs, Oceans and Wildlife of the Natural Resources Committee in March, 2010. Governor de Jongh also testified on the measure, along with a US Justice Department representative. Both expressed dissent on provisions of the text, with  the Justice Department representative outlining objections to certain provisions intended to provide certain powers of autonomous governance to the territory, including those favouring the native population, the ownership of natural resources and voter eligibility.

President James, along with the territory’s non-voting delegate to the House of Representatives Donna Christian Christensen, and a US Justice Department official, later testified before the US Senate Natural Resources Committee in June 2010, explaining their respective positions. Several weeks later, James provided the UN with an update on the progress underway in formal testimony to the United Nations Special Committee on Decolonisation. The United Nations Committee subsequently adopted its resolution on the territory which “welcome(ed) the proposal of a draft constitution emanating from the territory in 2009, as a result of the work of the Fifth Constitutional Convention, for review by the administering Power (US), and requests the administering Power to assist the territorial Government in achieving…the successful conclusion of the ongoing internal Constitutional Convention exercise.”

The United Nations Committee also requested the US Government “to facilitate the process for approval of the proposed territorial constitution in the United States Congress, and its implementation, once agreed in the territory.” (The full text of the UN committee resolution on the US Virgin Islands and other non self-governing territories will be published in due course).

The US House of Representatives has now adopted the resolution calling on the US Virgin Islands Fifth Constitutional Convention to re-convene, confirming the US Senate action a little over a week later. The measure now goes to US President Barack Obama for final adoption. S.J. Resolution 33 follows:

2d Session
S. J. RES. 33


To provide for the reconsideration and revision of the proposed constitution of the United States Virgin Islands to correct provisions inconsistent with the Constitution and Federal law.

Whereas Congress, recognizing the basic democratic principle of government by the consent of the governed, enacted Public Law 94-584 (94 Stat. 2899) authorizing the people of the United States Virgin Islands to organize a government pursuant to a constitution of their own adoption;

Whereas a proposed constitution to provide for local self-government for the people of the United States Virgin Islands was submitted by the President to Congress on March 1, 2010, pursuant to Public Law 94-584;

Whereas Congress, pursuant to Public Law 94-584, after receiving a proposed United States Virgin Islands constitution from the President may approve, amend, or modify the constitution by joint resolution, but the constitution `shall be deemed to have been approved' if Congress takes no action within `sixty legislative days (not interrupted by an adjournment sine die of the Congress) after its submission by the President';

Whereas in carrying out Public Law 94-584, the President asked the Department of Justice, in consultation with the Department of the Interior, to provide views on the proposed constitution;

Whereas the Department of Justice concluded that several features of the proposed constitution warrant analysis and comment, including--

(1) the absence of an express recognition of United States sovereignty and the supremacy of Federal law;

(2) provisions for a special election on the territorial status of the United States Virgin Islands;

(3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry;

(4) residence requirements for certain offices;

(5) provisions guaranteeing legislative representation of certain geographic areas;

(6) provisions addressing territorial waters and marine resources;

(7) imprecise language in certain provisions of the bill of rights of the proposed constitution;

(8) the possible need to repeal certain Federal laws if the proposed constitution of the United States Virgin Islands is adopted; and

(9) the effect of congressional action or inaction on the proposed constitution; and

Whereas Congress shares the concerns expressed by the executive branch of the Federal Government on certain features of the proposed constitution of the United States Virgin Islands and shares the view that consideration should be given to revising those features: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,


It is the sense of Congress that Congress--

(1) recognizes the commitment and efforts of the Fifth Constitutional Convention of the United States Virgin Islands to develop a proposed constitution; and

(2) urges the Fifth Constitutional Convention of the United States Virgin Islands to reconvene for the purpose of reconsidering and revising the proposed constitution in response to the views of the executive branch of the Federal Government.


Section 5 of Public Law 94-584 (90 Stat. 2900) is amended--

(1) by designating the first, second, third, and fourth sentences as subsections (a), (b), (d), and (e), respectively;

(2) in subsection (b) (as so designated)--

(A) by striking `within' and all that follows through `after' and inserting `within 60 legislative days after'; and

(B) by inserting `or has urged the constitutional convention to reconvene,' after `in whole or in part,';

(3) by inserting after subsection (b) (as so designated) the following:

`(c) Revision of Proposed Constitution-

`(1) IN GENERAL- If a convention reconvenes and revises the proposed constitution, the convention shall resubmit the revised proposed constitution simultaneously to the Governor of the Virgin Islands and the President.

`(2) COMMENTS OF PRESIDENT- Not later than 60 calendar days after the date of receipt of the revised proposed constitution, the President shall--

`(A) notify the convention, the Governor, and Congress of the comments of the President on the revised proposed constitution; and

`(B) publish the comments in the Federal Register.'; and

(4) in subsection (d) (as so designated), by inserting `under subsection (b) (or, if revised pursuant to subsection (c), on publication of the comments of the President in the Federal Register)' after `or modified'.

Passed the Senate June 17, 2010.

2d Session