13 December 2009

Self-Determination Legislation - Opportunity for US Administered Territories?

An OTR Editorial

Now that legislation authorizing United States (US) assistance to three territories under its administration has been adopted by the full US House of Representatives (H.R. 3940), the next phase of the process is crucial. The measure, originally introduced by Guam Delegate to Congress Madeleine Z. Bordallo, has now been forwarded to the US Senate for consideration. Delegate Bordallo should be commended for having done her job well in guiding the legislation through the US House.

The original legislation was amended during the House vetting process to include the territories of American Samoa and the US Virgin Islands, as the original bill was specific to Guam. The revised text has also been strategically re-casted to amend a decades-old 1980 US law (P.L. 96-597) meant to "authorize appropriations for certain insular areas of the United States, and for other purposes." This would appear to heighten the opportunity that some dedicated resources would be attached to the measure, although the Congressional Budget Office estimate of $2 million over the period 2010 - 2014 appears rather paltry for one territory, let alone three such jurisdictions. The resources provided must be commensurate with the importance of the initiative as a significant contribution to the long-delayed process of self-determination. Otherwise, it would be mere window-dressing.

In the 7th December 2009 House of Representatives report interpreting the legislation (H.R. Report 111-357), it was emphasised that the political education programme envisaged in the bill would be based on political status alternatives "including, but not limited to" the internationally-recognised options of (US) "statehood, free association (and) independence," along with "maintaining the status quo." The first three alternatives were confirmed by the White House in two White House Reports in 2005 and 2007, respectively, as the “permanent” political status for options for Puerto Rico, and by extension for the other four US-administered territories.

The “not limited to” reference in the House report, however, is problematic as it implies the legitimacy of other options not providing for political equality, and inconsistent with democratic governance. The 1993 political status referendum in the US Virgin Islands is an example where an excessive total of seven options was put before the voters in referendum. These included no less than three different versions of the status quo, in addition to the three permanent options and one autonomous model. Not surprisingly, there was no conclusive referendum result as confusion reigned during the public education process over minute details between virtually indistinguishable dependency options. The options of political equality got “lost in the wash.” Political status for that territory has been considered only intermittently since then, and mostly in unofficial circles. This present Congressional legislation may force the issue to be revisited in earnest.

Such a proliferation of political status choices should be assiduously avoided through the provision of a less complicated process with a clearer and less complicated array of political alternatives. In this regard, the three permanent political status options identified by the White House, with an option for the temporary continuation of the status quo, would be the best approach. This should be done by informing the people of the territory concerned what they should have been advised of all along - that the status quo is not a permanent form of democratic government, nor was it ever meant to be so. Thus, if the people choose to remain as a dependent territory, they should have to be consulted again - sooner or later until they arrive at a permanent solution.

There is a precedent for this enlightened approach – it is the 2009 legislation on the self-determination of Puerto Rico which recognises the primacy of the three options consistent with international law. The legislative measure for Puerto Rico was approved by the US House of Representatives last June, and is also under consideration by the Senate. The Puerto Rico bill provides that the electorate be consulted again (as many times as it takes) if the dependent status of commonwealth is chosen in a referendum, since a permanent status would not have been achieved. The legislation for the other three territories presently has no such requirement. It is clearly understood in most political circles in Puerto Rico – even amongst those who support the status quo - that there are inherent democratic deficiencies in the territorial status which need to be corrected through “enhancements.”

The same democratic deficiencies apply to the territorial status of the other three US – administered territories, as well ( in addition to the Northern Mariana Islands), even as this may not be as readily recognised in these other territories. Thus, it should be made clear in the US Senate that the legislation for American Samoa, Guam and the US Virgin Islands refers to the same options of political equality as those offered to Puerto Rico - along with the possibility to temporarily retain the status quo, with the same stipulation that the territories would be periodically consulted until a permanent status is chosen. In fact, the distinction between temporary and permanent options should form an integral part of any public education process in the territories concerned, especially as the status quo itself is not stagnant, but rather allows for erosion of the limited autonomy of the territorial government at any time through unilateral decisions and applicability of legislation. The Northern Mariana Islands is a clear example of how such unilateral applicability of US law has begun to erode their erstwhile autonomous arrangement. The entire political arrangement should be the subject of formal review and reconsideration.

In some territories, the discussion on political evolution has already begun prior to this US legislation. The Governor of American Samoa initiated a promising political status and constitutional development process utilising local resources. That was before the tsunami earlier this year. Understandably, all efforts in that territory are now directed to reconstruction following the disaster, and the issue of political evolution is scheduled to be revisited in 2010. This timetable places the American Samoa process within the framework of the legislation being considered by the US Senate.

In the US Virgin Islands, an elected constitutional convention adopted an ambitious draft constitution last May for consideration by the US Congress which would test the limited parameters of the status quo dependency arrangement as a first step in resuming focus on political and constitutional development after over a decade and a half of dormancy. Whether the draft constitution would formally be considered by Washington, however, remains to be determined by the territorial court which has yet to rule on whether the document will be transmitted to the US Congress over the objection of the current elected governor who has held back the document based on certain provisions within it. Chances are that a US Congressional analysis of the draft constitution could determine that the additional powers sought for the territory contained in the document could only be realised in one of the permanent options – thus, the process could comes full circle, squarely back into the realm of the fundamental need to address the political status question – as one scholar has written, “decolonisation rather than colonial reform.”

The role of civil society in all of this continues to be crucial. Organisations in the US Virgin Islands such as the United Nations Association of the Virgin Islands (UNAVI) have been active for over a decade in providing information on the importance of a legitimate process of self-determination. Non-governmental organisations in Guam have taken a sustained approach over the years through organisations such as the Chamoru Nashion, and the Organisation of Peoples for Indigenous Rights (OPIR), among others. American Samoa’s Political Status Commission did especially important work on political alternatives several years ago, and this should serve as an excellent point of departure as the legislation in Congress shifts to the US Senate. In Puerto Rico, the political parties and the Bar Association, among others, have historically taken the lead in advocacy on the issue.

The introduction of the Bordallo legislation, therefore, was an important step in ‘jump-starting’ the process of self-determination in all of these territories, and has the promise of reviving serious deliberations among the people on their political evolution. Meanwhile, in the territories, media attention to the measure has been uneven. Other than in Guam, the media in the other two territories covered by the bill has been curiously and conspicuously silent as to the very existence of the legislation, and OTR is not aware of any official statements emanating from these territorial capitols on the legislation with the notable exception of Guam whose governor testified before the US Congress in Washington in favour of the measure.

With the appropriate clarifications to the legislation, including the correction of re-focusing on the permanent options, along with a realistic amount of resources for the three territories to wage a serious public campaign, a process of self-determination can yet be realised. The Obama Administration could very well be the first US administration since these territories were acquired at the end of the 19th century and into the 20th century to foster a genuine process of self-determination for the peoples of these territories, and the first to seriously implement its international obligations under the United Nations Charter to bring genuine self-government and full political equality to the territories under its administration.

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