10 February 2009

The Year Ahead for OCTs - Part I.

by Dr. Carlyle Corbin
International Advisor on Governance


As the planet moves into 2009, the attention of the international community is riveted on finding solutions to the global economic crisis brought on by unbridled market fundamentalism. Remedies put forth, thus far, have resulted in some unintended consequences, such as banks refusing to lend despite massive infusion of public capital given to them for that purpose. Corporate bonuses continue to be paid in the midst of massive layoffs. Programmes of partial or full nationalisation of banks have surely rankled capitalist fundamentalists who offer no fresh solutions.

Wars in Iraq and Afghanistan persist whilst the loss of life of life and limb among the innocent civilians in Gaza, occupied Palestine exposes a level of atrocity which violates all reasonable standards of international law and humanitarian norms. The further fragmentation of the former Yugoslavia continues with the European Union and US - supported separation of Kosovo from Serbia. In the process, the precedent was set for Russian – supported secessions of South Ossetia and Abkhazia in the continual realignment of the constituent parts of the former Soviet Union. Neither of the three de facto states have sufficient international backing to formally join the United Nations (UN), thus far.

Meanwhile, the inauguration of a new president of the United States has ushered in a new era of leadership, and hopefully a new approach to global governance with fresh perspective on some of the more vexing international issues. The new president from day one began to grapple with crises inherited from the predecessor regime. Early actions to begin to “reverse the curse” of the previous draconian policies are encouraging. Whether such moves are sustainable, and what compromises might be necessary will be revealed in time.

In the context of this political and economic uncertainty, the non-independent overseas countries and territories are not immune from contagion. Because of their varying levels of self-governance, they have less authority than that enjoyed by independent States to sufficiently counter international developments that may affect their sustainability. Thus, their vulnerability is considerable. The financial services sector is a case in point, constituting fifty per cent of the economies of many OCTs, especially in the Caribbean. The US General Accountability Office in late 2008 revealed that portions of the initial U.S. financial rescue package may have gone to companies with offshore accounts, adding to the negative public perception in the US over legal tax avoidance. The pre-election criticism of the financial sector by the new U.S. president may yet translate into legislative action making it more difficult for U.S. capital to move, even as tax shelters in Europe may go relatively unchallenged.

The Europeans themselves have also targeted the offshore sector. The United Kingdom (UK) organisation of public servants (UNITE) at the end of 2008 called for the funds of UK banks in offshore accounts to be repatriated and subjected to UK tax, and for the curtailment of access of UK businesses to utilize these offshore services. The announcement by the UK Chancellor of the Exchequer in November, 2008 that the UK Treasury was to conduct a review into the operations of those Crown Dependencies and Overseas Territories that operate as financial centres, is further illustrative.

Degrees of Political Advancement

Some OCTs are seeking political and constitutional advancement with the eventual outcome of fully recognised self-government. Others continue to experience unilateral adjustments to their existing dependency models of governance which are often subject to a reversal of the modicum of self-government which they had so painstakingly negotiated decades prior. Still others, especially in the Caribbean region, are seeking to acquire more autonomy and self-governance within their present dependency arrangement that might give them more flexibility to better cope with the global crisis. This often results in the delegation - rather than the devolution - of power with the final decision-making authority of the colonial power remaining in effect.

The delegation of authority achieved by several Caribbean OCTs in revised constitutions, pursuant to the 1999 U.K. Government’s White Paper on Partnership for Progress and Prosperity, has been the highlight of the constitutional reform process in the region. This was not meant, however, to extend full self-government through a recognised decolonisation process which provides a full range of internationally-recognised options. Thus, new constitutions in the non self-governing territory of the Turks and Caicos Islands (TCI) in 2006, and in the British Virgin Islands (BVI) in 2007 have provided for degrees of delegation of power from the cosmopole. The authority to reverse this delegation, however, remains clearly spelled out in these modernised constitutions, and it is clear that unilateral authority remains with the administering power through its appointed governor in the respective territories. The BVI will seek to consolidate these powers whilst the TCI will struggle to maintain them amid an internal political crisis.

Constitutional Reform and Delegated Self-Government

Within this context, Anguilla, the Cayman Islands and Montserrat have sought more autonomy through their respective constitutional reviews following the incremental and reversible delegation of power conferred on the Turks and Caicos Islands, and further advanced in the British Virgin Islands. The Constitutional and Electoral Reform Committee of Anguilla in 2003, aided by the United Nations Development Programme, examined a number of issues of autonomy and passed on its analyses to a more permanent Constitution and Electoral Reform Commission which provided the elected government with a set of formal recommendations. Their report followed meetings and consultations with the public which confirmed the national interest in increased self-government. It reflected a gradual approach to obtaining more powers. The Anguilla government went further, however, to propose that the 2008 formal discussions with the UK focus on “full internal self-government.” This caused a delay in the scheduled talks with the British on constitutional advancement which had not been expected to be under discussion.

Anguilla’s strategy is important since the new constitutions in the Turks and Caicos Islands, and the British Virgin Islands, while containing more delegation of power, stubbornly reserved a veto and power of unilateral authority to an un-elected governor who is dispatched from the cosmopole every few years. The democratic deficiency in colonial governance where the power lies with the appointed governor – as opposed to the government elected by the people - has been the subject of increased scrutiny by the United Nations in its resolutions. The UN, however, has not yet moved past its mere acknowledgment of the inconsistency between democratic governance and contemporary colonialism.

Thus, a substantive discussion on the dynamics of dependency governance and its relationship to democracy has yet to be held at the United Nations where obstacles to the decolonisation process should be fully analysed. Anguilla’s consultations with the UK in 2009, on the basis of “full internal self-government,” could be significantly enhanced with stepped-up international support for the Anguilla position which is wholly consistent with international law and principles. Whether the U.N. takes a more advocacy approach in support of its own standards of self-government will be revealed in time.

The Cayman Islands through its professional and highly effective Constitutional Reform Secretariat began its review in 2007. This led to a set of recommendations originally put forth by the government in early 2008 and revised months later following public consultation. The government’s recommendations were admirably aimed at transfer of some of the powers from the governor to the elected government. The Opposition United Democratic Party put forth its own initial constitutional analysis, and later formed an integral part of the government-led delegation.

Two closed-door consultations with the UK in the Cayman Islands in September 2008 and in January 2009 discussed elements of a new constitution. The Chamber of Commerce which had been in the forefront of internationalising the right of self-determination for the territory was a critical part of the discussions, along with the association of clergy who focused was on human rights issues, particularly with respect to the sanctity of marriage between a man and a women. The Cayman Islands Human Rights Committee also participated in the delegation and made strong representations on the proposed Bill of Rights.

Emerging from the discussions last September was a confidential Working Draft presented by the UK to the Cayman Islands delegation for consideration. A copy of the draft obtained by OTR confirmed the analysis of the Caymanian Compass newspaper that “the earlier proposals (of the Cayman Islands Government) which would have significantly reduced the powers of the Cayman Islands Governor have largely been eliminated from the plan.” A second updated draft was circulated publicly in mid January following the second round of consultations.

A third and final set of discussions in early February in London was held to deal with a number of outstanding technical or administrative issues, or those which required political decisions by the UK overseas minister. Consistent with the continuation of dependency governance, the administering power determines what would be finally contained in the Cayman constitution, and what would not. The final document is expected from London shortly in advance of the scheduled May referendum.

Interestingly, one of the outstanding issues was reported to be whether to include in the draft constitution for the Cayman Islands specific reference to a future right to self-determination. This is of particular interest from a global perspective given earlier UK strategy to project the “modernised” dependency constitutions emerging from similar processes in other territories as sufficiently self-governing to remove the territory from formal international scrutiny. Given the maintenance of the unilateral authority of the administering power, it is unlikely that the international community would regard such a new constitution as one providing a full measure of self-government sufficient to be ‘de-listed’ from U.N. review.

A more likely tactic, as employed in 2008 in relation to Gibraltar, would be to announce in a statement to the U.N. that the constitutional reforms granted to a given territory had effectively provided for a substantial level of self-government. Spain has vociferously objected to such an interpretation that Gibraltar was self-governing given the Spanish ongoing sovereignty claim over the territory. A similar statement professing self-government for Falklands Islands/Malvinas has met with strong rejection by Argentina with support from the rest of the Latin American region.

In any case, as the strategy goes, these claims of legitimacy for the contemporary form of colonial governance would be followed by charges that the UN’s definition of self-government was “anachronistic,” and that further international review was deemed irrelevant. This careful approach recognises the requirement to satisfy UN Charter obligations through annual reports on developments in the territory, but avoids the issue of whether the “new” constitutions constitutes full self-government. Has the UN been distracted by this careful political mid-direction? Will the UN proceed to review the details of these “modernised” constitutions pursuant to their decades-old mandate, and Charter obligations? Or will this task continue to be borne by experts in civil society and in the academic community whose analyses are carefully shielded from formal review of the UN member countries?

For the Cayman Islands, the referendum on the reformed constitution scheduled for May 2009, coinciding with national elections, could provide an opportunity for the political leadership of both parties to discuss their views on the merits and demerits of the new document. This follows the Gibraltar model where a referendum on the revised constitution was also held. If, by chance, the referendum fails to garner sufficient public support in referendum, would the UK decide to make its own constitutional changes be made through a unilateral Order in Council?

The Caribbean territory of Montserrat is not quite far ahead as some other territories in its constitutional review, but then, none of the others have had to deal with the lingering economic, social and demographic effects of a volcanic eruption. A 2005 legislative report on constitutional recommendations called for such changes as regional affairs and international finance to be transferred to the elected government, a review of how the governor exercises powers, and the abolishment of the governor’s authority to impose legislation.

These recommendations were consistent with an earlier call by the territory in 2005 to replace the dependency relationship with one of free association – one of the three options of political equality recognised under international principles. This followed two years on from the 2003 United Nations Caribbean Regional Seminar on Decolonisation held in Anguilla where the option of free association was re-introduced to the elected heads of government and ministers of most Caribbean territories. The UK representative at the seminar agreed that free association was, in fact, a viable option. Months later, this position was reversed in written clarification that free association didn’t provide sufficient power to supervise the territories. The fact remains that free association is not simply another form of dependency status, but one of political equality between countries determined by mutual agreement. Will this distinction between colony and association be part of the debate in 2009?

Apparently, such a transfer of powers to the elected territorial government, as sought by Montserrat – and now Anguilla - could not be seriously entertained since this would constitute a fundamental change from a dependency status to that of an equal partnership between countries. After all, if one territory gets it, they all might ask for it. Thus no further movement has taken place consistent with Montserrat’s autonomous aspirations. If only to reinforce the point, the UK Governor in 2008 denied assent to salary and pension legislation “in the interest of good governance,” even as the legislation may have been later repealed on the merits by the elected House. The use of unilateral authority to decline to assent to legislation passed by the elected government was a pointed illustration of the continued democratic deficit of colonial governance, and serves as the basic underpinning of these constitutions, modernised or otherwise.

Initiatives to intensify Montserrat’s regional interaction are similarly precluded by its lack of constitutional authority to enter into international agreements with bodies such as CARICOM, even as it is a full member of that regional body. Thus, the 2004 request by the territory to join the Caribbean Single Market and Economy (CSME) was rebuffed by the UK in 2008 in a decision that one eminent regional scholar saw as “colonialistic,” and which the Caribbean Community (CARICOM) Heads of Government in an official communiqué termed disappointing.

A 2008 study done for the Organisation of Eastern Caribbean States, which has within its ranks Anguilla and the British Virgin Islands as associate members along with Montserrat as a full member, concluded that there was an essential need for the necessary political development of these territories to include the authority to enter into international economic agreements in their own right and interest. Caribbean countries and their institutions should actively support such territorial aspirations in the years ahead. The inclusion of an agenda item on the decolonisation of these Caribbean territories on the CARICOM agenda would be most useful.

A similar agenda item for discussion during the bi-annual consultations between the CARICOM and United Nations Secretariats would also be effective, and would complement the clear and principled political position articulated by CARICOM at the UN General Assembly. The UN bureaucracy needs to know that the CARICOM governments are firm in their commitment to the decolonisation of the remaining countries in the region. This would reinforce the legal premise that the political development of these territories is not merely an “internal matter” between a cosmopole and the territories it administers, but rather an issue governed by the UN Charter.

Toward a Full Measure of Self-Government

Even as some territories struggle to move ahead politically, the leadership in Bermuda has the most political clarity on the subject of full self-government. The ruling Progressive Labour Party (PLP) platform has historically regarded independence as an inevitability. Armed with a relatively autonomous pre-independence constitution, Bermuda continues to assess the proper timing to present to its people a plan for the attainment of independence as the next logical step in their political evolution.
Bermuda has the benefit of a comprehensive analysis done by its 2005 Independence Commission which examined the economic and other implications of that political status, along with subsequent expert analyses. Bermuda can also draw upon the 2005 United Nations assessment report undertaken by a high-level special political mission the same year, and aided by two of the Caribbean’s most eminent scholars in the field. Given the economic independence already enjoyed by Bermuda, whose budget is fully financed from its own economy, along with the advanced nature of its existing constitution, independence is clearly only a matter of time.

Until then, the cosmopole continues to exercise its powers of unilateral authority. The reappointment until 2012 of a UK Chief Justice of the Supreme Court from the UK rather than from Bermuda, has rankled many including the past Premier who referred to it as a backward step.

In response to the UK announcement of a review of the offshore sectors of the dependent territories, the present Bermuda Premier emphasized to the House of Assembly in November, 2008 that the territory’s financial sector was on the “cutting edge” of financial regulation, and indicated that the territory could pass any such financial review with glowing result. The Premier also drew to the attention of the parliament that the authority to conduct such a review by a country which does not contribute financially to the territory was only by grant of the prevailing colonial relationship. He pointed to the incredulity of the political arrangement which costs the Bermuda taxpayers $2 million a year for the operations of the appointed governor.

In fact, only Montserrat and St. Helena of the other United Kingdom-administered territories are reported to be recipients of grant-in-aid from their administering power. All the rest finance their own way, and pay for the operational expenses of the appointed governor to boot. This has led many of the territories to begin to reassess the peculiarity of having to pay to be governed from the outside while receiving no financial support. The territories must even finance external commissions of inquiry aimed at themselves and mandated by the UK. The ongoing 2008-09 inquiries in the Cayman Islands, and in the Turks and Caicos Islands are illustrative.

In fact, the Turks and Caicos Islands may very well be experiencing a “blowback” effect as a result of its breakthrough achievement of a relatively advanced constitution in 2006 which provided certain delegated powers to the elected government. The implication was that full self-government was not too far off, and the length of the transition to independence was all that remained to be negotiated. In the meantime, the new constitution had expanded the perspective of what was allowable under the dependent status, even as the delegation was reversible. Thus, other territories could use this as precedent for attaining their own delegated powers. In the case of the Turks and Caicos, their position was reinforced by the UN Visiting Mission of 2006 which was led by the former President of the UN General Assembly, representatives of other member states, and an eminent international expert.

Enter a UK-ordered commission of inquiry, paid from the territorial treasury, which resulted in revelations of alleged budgetary mis-management. The spectacle of the elected head of government and his cabinet members being publicly grilled in front of an inquiry on financial and other dealings has served to severely detract from the very delegated gains earlier achieved. Public exposure of the private finances of ministers was the subject of constant media criticism.

The political pressure ultimately caused a split in the ruling party resulting in the offering of a no-confidence motion and a postponement of the House. Some forces are using the vulnerable situation to call for a political takeover by the administering power of government operations, even as the deputy head of the elected government has signaled his challenge to the leadership of the ruling party during its convention set for late February, 2009. The resolution of the political crisis will determine whether the aspirations for true self-government in the territory will be furthered in 2009, or whether it will be “one step forward, two steps backward” for the TCI.


Part II of “The Year Ahead for OCTs” will examine prospects for the US territories in the Caribbean and Pacific which face a variety of challenges to their political advancement. These are influenced by such considerations as the global economic crisis, reverse delegation of power through ‘federalisation,’ external militarisation and other factors.

Part II will also address the state-of-play in the process of political evolution in the French overseas countries of New Caledonia and French Polynesia, the fragmentation of the five-island Netherlands Antilles and implications for the Caribbean region, the intensification of the indigenous movement in Hawaii and future advancement for Greenland whose unique model of integrated association has led to the greatest degree of actual autonomy.