Perspectives on the Decolonisation of Guam

THE QUESTION OF GUAM

STATEMENT OF GUAHAN COALITION FOR PEACE AND JUSTICE
and THE CHAMORRO STUDIES ASSOCIATION

By HOPE A. CRISTOBAL

THE UNITED NATIONS SPECIAL COMMITTEE ON DECOLONISATION
Pacific Regional Seminar
Noumea, New Caledonia
18 - 20 May 2010

“Priorities and Concerns of Civil Society Relating to the Decolonization of Guam as a UN Non Self-Governing Territory”

CHAMORU SELF-DETERMINATION PA’GO

I. INTRODUCTION

Hafa Adai! (Greetings) Your Excellency Mr. Chairman and distinguished members of the Special Committee on Decolonization.

Dangkolu na si Yu’os ma’ase (sincere thank you) for your invitation to participate at this revolving seminar to assess the progress of decolonization and to discuss priorities regarding the Question of Guam on the final year of the Second International Decade for the Eradication of Colonialism in the 21st century.

Also, I bring warm Hafa Adei greetings from our indigenous Chamorro people to our fellow Kanaky people of New Caledonia. We thank you for graciously hosting this United Nations Pacific Seminar. We extend a heartfelt “Dangkolu na si Yu’os ma’ase” (sincere thank you) for the opportunity to join Your Excellency, the Special Committee and my esteemed fellow delegates today.

As you may know, the Chamorro people of the Mariana Islands have cultural and linguistic ties to the Kanaky people of New Caledonia through our common Austronesian heritage that spans Oceania. As peace loving peoples of the great Pacific, we hope one day to be able to share in a history of freedom from colonial dominance espoused by this Special Committee and the rest of the UN body.

I am Hope Alvarez Cristobal, a Chamorro former Senator of Guam. I am here as a representative of Guåhan Coalition for Peace and Justice, a Guam based coalition made up of grassroots organizations advocating for the political, cultural, social, environmental and human rights of the people of Guam. We formed in September 2006 as a result of the announcement of the United States-Japan Realignment Initiatives signed in May 2006 in our awareness and desire (consistent with our traditionally matrilineal social order) to organize and give voice to concerns of women and female children in a highly militarized environment.

Our focus on peace and justice is central in light of the ongoing issue of the denial of our Chamorro people’s inalienable human right of self-determination and decolonization of Guam as a modern-day colony of the United States. Particular emphasis is made on keeping Guam, our island home, safe and sustainable for our children and generations to come. The Guåhan Coalition for Peace and Justice is comprised of the following member organizations: Chamorro Studies Association; National Association of Social Workers, Guam Chapter; Conscious Living; Guam’s Alternative Lifestyle Association; and Nasion Chamoru.

II. THE LAND AND THE PEOPLE OF THE LAND

Guam’s unincorporated (permanent colony) status designation under the 1950 Organic Act of Guam legitimized US military land takings with rights of eminent domain of the only 147,000 acres of land—with only 116.5 miles of natural shoreline available to it for all purposes. Of this 147,000 acres, the military currently possesses 40,000 acres constituting 27.21% of the island’s landmass with the US National Park Service possessing 695 acres for 0.47% and the US Fish & Wildlife Service currently possessing 385 acres for 0.26% of the island. The local government possesses 37,673.36 acres for 25.6% of that total and with private lands consisting of only 68,246 acres for 46.43% of Guam’s land mass. [Ref. legislative Resolution 258-30 (COR)].

With a history of US land takings and the possibility of more land condemnation through the current US militarization plans, the 29th Guam Legislature passed public law 29-113 which clarifies that the disposition of public lands is exclusively the purview of the Guam Legislature and not the US military. This law stipulates that duly enacted legislation by the Guam Legislature is needed to authorize “the acquisition by condemnation or otherwise of private property” by means of Congressional appropriation to acquire property for public use.

The current 30th Guam Legislature also passed another law which tasks the local government’s Guam First Commission to determine which land the Federal Government may intend to lease or sublease, exchange for other land, or purchase, and to report their findings to the Guam Legislature and the Governor of Guam. This law also requires the Legislature’s approval of any federal acquisition of Government of Guam property, whether by lease, sub-lease, exchange or sale.

Guam’s colonial status continues to pave the way for US application of federal laws over our air space and sea lanes; our 200-mile Exclusive Economic Zone; all our resources, control of exit and entry of our borders, control of our land, the environment and whatever can be defined as “a possession of but not a part of the United States.” It is clear that the Guam Legislature is now struggling as it finds itself with little power to protect local government assets under the laws of the administering power. For a small colonial people, the alienation of property by laws of the colonial power is one of the fundamental tenets of colonialism. In Guam, so much of the alienation has occurred through military seizure—but other forms of alienation have the same effect.

III. SECOND INTERNATIONAL DECADE FOR THE ERADICATION OF COLONIALISM

Mr. Chairman, people of the 16 remaining NSGTs still under the yoke of colonialism have been denied the benefits of decolonization as provided by the UN Declaration on the Granting of Independence to Colonial Countries and Peoples [UN Resolution 1514 (XV)] and that despite the Special Committee’s diligent work emphasized in the proclamation of the two International Decades for the Eradication of Colonialism the world’s political map have not had any major transformation. We can honestly say that in the case of Guam, rather than the eradication of colonialism, the US administering Power has deepened its colonial roots.

What we find unacceptable, Mr. Chairman, is that the administering power’s WWII adversary, Guam’s brutal occupier of WWII, Japan, is now complicit in Guam’s modern day colonization and militarization through its joint Bi-lateral Agreement with the U.S. With respect to Guam, the Special Committee’s work was not only stymied; rather, it has been made to fail in its mission to make colonialism a fact of the past—in not having developed a programme of work for the decolonization of the NSGT of Guam in view of the US’s active, massive militarization plans. Included is the failure in dispatching a UN visiting mission at the time Guam was actively negotiating its political status over two decades ago; and today, with US plans for our militarization.

For 21st century Guam, it is déjà vu old-style colonialism again. This time it is not 17th C. Spain but the US administering Power utilizing its military forces in a kind of “reduccion” process of “subduing, converting and gathering the natives through the establishment of missions and stationing of soldiers to protect those missions.” (Ref. Rob Wilson, 21st Annual Conference, “Crosscurrents: New Directions in Pacific and Asian Studies,” University of Hawaii, Manoa, March 10, 2010.) The exploitation of our colonial status as a people, U.S. militarization, assimilationist immigration policies, the rising tide of cultural genocide, environmental degradation and contamination, the dispossession of our lands, etc., are direct violations of our rights as NSG people under:

a. The UN Charter, in particular, Articles 1, 55 and 73e which addresses the rights of peoples in non self-governing territories who have not yet attained a full measure of self-government, and commands states administering them to “recognize the principle that the interests of the inhabitants are paramount.” Furthermore, that administering powers, accept as a “sacred trust” the obligation to develop self-government in the territories, taking due account of the political aspirations of the people.

b. UN Resolutions 1514 that states, the subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the UN and is an impediment to the promotion of world peace and cooperation.

c. UN Resolution 1541 affirming three ways NSGTs could attain a full measure of self-government that must be the result of the freely expressed wishes of the peoples of NSGTs.

d. UN Declaration on the Rights of Indigenous Peoples—the latest UN international human rights instrument to explicitly expand the universe of the holders of the right of self-determination with its Article 3 that specifically recognizes, using the classic formulation of the right of self-determination enshrined in the 1966 Human Rights Covenants, that indigenous peoples hold the right.

e. International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, (known collectively as the 1966 Human Rights Covenants) that enshrine self-determination as a right.

f. And, other relevant UN documents on decolonization.

Clearly, the US continues to behave contrary to its concrete UN obligations as the administering Power over Guam. There is no mistaking that US dominance and subordination of Guam is a consequence of US military power dynamics over the Asia-Pacific region. And, without the United Nations assertion of its moral authority and oversight of its non self-governing territory of Guam, our home island and our people will continue to be treated as inferior having no sovereignty or agency in relation to US foreign policy and security interests. Gone unchallenged, the possibility of a free, decolonized and self-governing Guam will be sealed and buried under by our own administering Power.

At his opening statement of the House Armed Services Committee hearing on March 25, 2010, Congressman Ike Skelton spoke about the rebasing of U.S. Marines from Japan to Guam as “one of the largest movements of military assets in decades”—estimated to cost over ten billion dollars. He further stated that the changes being planned as part of that move will not only affect U.S. bilateral relationship with Japan; they will shape U.S. strategic posture throughout the critical Asia-Pacific region for 50 years or more. Congressman Skelton stated that the US “must be proactively engaged in the Asia-Pacific region on multiple fronts,” and that U.S. actions may well influence the choices and actions of others.”

For Guam, our exclusion from the decision made about the massive militarization of our island home through US military expansion and restructuring of its bases and military operations is unconscionable. Moreover, we have had no choice and no options offered vis-à-vis our colonial status or US actions having political implications on our colonial status. Guam is a colony and remains a colony until the Chamorro people is allowed to exercise our human right of self-determination and is allowed to decolonize.

IV. OUR HUMAN ENVIRONMENT

Mr. Chairman, the U.S. military’s militarization plans bodes great harm for the people and our island home environment. These plans include the construction of facilities and structure to support the full spectrum of warfare training for some 8,600 marines (and their dependants) being relocated from Okinawa to Guam; the construction of a deep-draft wharf in Guam’s only harbor to provide for nuclear-powered aircraft carriers, destroying over 287,000 sqm (71 acres) of healthy and endangered coral reef; the construction of an Army Missile Defense Task Force modeled on the Marshall Islands-based Ronald Reagan Ballistic Missile Defense Test Site, for the practice by US military personnel of intercepting intercontinental ballistic missiles; the forcible land-grabbing of an additional 2,200 acres of indigenous Chamorro land; the desecration of Pagat, one of Guam’s oldest ancient villages dating back to 2,000 B.C.; the dangerous over-tapping of Guam’s water system to include the drilling of 22 additional wells; and the denial of the most fundamental human right of the Chamorro people of Guam to self-determination.

The militarization plan calls for an alarming 80,000 new residents within the next five years. These new residents include the 8,600 Marines and 1,000 Army troops with 9,000 of their dependents and large numbers of construction workers that will add to our current 180,000 residents. This is obviously not about demographics alone as we see US hegemony flourish and cultural genocide work for the administering power. As non-US citizens after WWII, we were over 95% of the population. As United States citizens 50 years later, our population is reduced to 42% (2000 Census). Five years ago, we comprised some 35% of our home population. But with the new US plan, the Chamorro population can be expected to drop to around 24%! This is perhaps the most plausible reason why all information impacting our people’s lives were kept secret until the official release of the draft environmental impact study last November 20, 2009.

This Draft Environmental Impact Statement (EIS)/Overseas Environmental Impact Statement (OEIS) was intended to, “assess the potential environmental effects associated with the proposed military activities” (DEIS, Executive Summary, Abstract) for the relocation of US marines to Guam, enhancement of infrastructure and logistic capabilities, improvement of pier/waterfront infrastructure for transient US Navy nuclear aircraft carrier (CVN) and placement of US Army ballistic missile defense (BMD) task force. It is supposed to report the overall impacts that the military’s plans will have on Guam’s environment. It was a document of 11,000 pages and we were given a 90-day window to comment (ending Feb. 17, 2010) with a Final EIS to be completed in July and a Record of Decision to be released in 30 days.

The selective and exclusive sharing of information on the military’s plans prevented our full participation and served to silence our voices in this critical process. The community scrambled to respond to the 11,000-page report within the rigid schedule. The “record speed” of a two-year environmental impact study for such unprecedented militarization of a non self-governing territory was obviously suspect. We were not told about the 80,000 people or that the US had planned to go outside their existing footprint. At the public outreach meetings, hundreds spoke resoundingly against the military’s plans. At the close of the public comment window, the military received over 10,000 comments from various indigenous Chamorro groups, community members and stakeholders and other external stakeholders.

The fear of being overwhelmed by the construction of a new US Marine base has permeated the community. In reference to the local government’s costs grossly underfunded in the plan, Lt. Governor Michael Cruz, M.D. who himself is a Colonel in the Army National Guard, stated “Our nation knows how to find us when it comes to war and fighting for war, but when it comes to war preparations—which is what the military buildup essentially is—nobody seems to know where Guam is.” Government officials put the total direct and indirect costs of coping with the military buildup at about $3 billion, including $1.7 billion to improve roads and $100 million to expand the already overburdened public hospital.

Last January 22, the 30th Guam Legislature adopted a resolution expressing the “strong and abiding opposition of the Guam Legislature and the People of Guam to any use of eminent domain [condemnation] for the purpose of obtaining Guam lands for either the currently planned military buildup or other U.S. Federal Government purposes, or both.” Copies were transmitted to the President of the United States, the Speaker of the House of Representatives of the United States, the President Pro-Tem of the U.S. Senate, to UN Secretary General, Ban Ki-moon, and other officials. Another resolution (No. 275-30 (LS)) was introduced and adopted relative to presenting to President Obama and the US Congress, the sentiments expressed by the people of Guam regarding the Draft Environmental Impact Statement for the Guam military build-up; to enumerating the findings of the Legislature that have led to the conclusion that the DEIS is grossly flawed; to providing a list of essential elements which must be favorably resolved; to restate Guam’s agenda of priority concerns relative to federal-territorial issues that must be addressed concurrently with the buildup; and to asserting additional findings on actionable items relative to the DEIS.

Of grave concern is the fact that Chamorro self-determination and decolonization was not even addressed by the military in the DEIS and the fact that decisions have been made in the context of a huge power imbalance in which the US has the ultimate decision-making power with the social, cultural and political implications to the Chamorro community being grossly understated. It is no secret that the US and its military representatives are fully cognizant of the irreversible and significant consequences that their decision will have on its colonial people. Broad concerns relating to local infrastructure, environmental, labor and workforce, socio-economic and health and human services are being discussed among government and military officials. But the difference is: The US has completely ignored the negative implications to its colonial people’s human, political and legal right to self-determination. Just as select private businesses collectively predict positive gain by Guam’s militarization, the Chamorro people alone have historically and will predictably bear the unequal proportion of the burden.

On the last day of the public comment period, the federal Environmental Protection Agency issued the lowest possible rating of the DEIS of “environmentally unsatisfactory” and providing “inadequate information.” In its strongly worded six-page letter, the US EPA stated that “The impacts are of sufficient magnitude that..…action should not proceed as proposed and improved analyses are necessary to ensure the information in the EIS is adequate to fully inform decision makers.” Specifically, the EPA stated that the military’s plan would lead to:

a. A shortfall in Guam’s water supply, resulting in low water pressure that would expose people to water borne diseases from sewage.

b. Increased sewage flows to wastewater plants already failing to comply with the Clean Water Act regulations.

c. More raw sewage spills that would contaminate the water supply and the ocean.

d. “Unacceptable impacts” to the 287,000 sqm (71 acres) of a high quality coral reef.

But even with this indictment of its draft EIS, the military continues with its military expansion and restructuring plans today.

In Congress, Guam’s delegate introduced a bill that would provide for public education on Guam’s political status options. This bill was amended in the House of Representatives and now includes the other two NSGT’s: American Samoa and the US Virgin Islands and would “include but not (be) limited to the 3 internationally recognized options.

The implication is that the educational program could also include other options, albeit not defined in the bill. There is no reference to any referendums nor provision of a specific budget although Congressional estimate of the costs is some $2 million in the next 5 years for all the territories. It remains to be seen what will happen in the US Senate.

If the draft Guam Commonwealth bill or the Guam War Reparations bill or the bill to amend the US Radiation Exposure Compensation Act (to give compensation to the “down winders” (Guam included)) are any example, it will end up taking many forms over many years without resolution or action. Only time will tell. And, time, Mr. Chairman is not on our side.

V. OBSTACLES/OPPORTUNITIES/RECOMMENDATIONS

The Question of Guam shall remain a question of Chamorro self-determination and decolonization for Guam. As a process of decolonization, the exercise of Chamorro self-determination must necessarily occur outside the influences of the administering Power and with the cooperation of the United Nations.

We make the following recommendations to this seminar:

1. That the inalienable right of the Chamorro people of Guam to self-determination in conformity with all relevant UN documents be given utmost priority by the Special Committee on Decolonization in view of the administering power’s massive militarization planned from 2010 to 2014.


2. That a customized process of decolonization for the Chamorro people of Guam be immediately adopted in view of the severe irreversible impacts on Guam by the US administering power.

3. That an investigation be conducted as to the compliance of the administering power with its treaty obligations under the Charter of the United Nations to promote the economic and social development and to preserve the cultural identity of the Territories as related earlier in this text.

4. That a study must be conducted on the implications of US militarization plans on Guam’s decolonization and that UN funding be allocated immediately.

5. That the UN denounce the militarization of the non-self-governing territory of Guam without the consent of the people of Guam due to irreparable harm to the inalienable human rights of the Chamorro people and interests of the people of Guam.

6. That a work programme be adopted by the Special Committee to carry out its objectives for the decolonization of Guam.

VI. CLOSING

Thank you, Mr. Chairman and delegations for the opportunity to make this presentation. My people’s journey towards decolonization is at a very critical juncture. We can only rely on the United Nations to assure that the US live up to its obligations under the United Nations Charter and to its promise of self-determination and decolonization for the people of Guam.

American Samoa Governor Addresses UN Pacific Seminar

Governor Togiola Tulafono presents American Samoa’s stand on self-government to UN decolonization seminar

SAMOANEWS.COM
(BASED ON PRESS RELEASE)— NOUMEA, New Caledonia

Gov. Togiola Tulafono on Tuesday presented American Samoa’s stance on non self-governing territories at the opening of the United Nations Special Committee on Decolonization’s Pacific seminar in this French territory.

Togiola, in his statement to the committee, summarized the history of American Samoa’s experience under the protection of the United States for the past 110 years, and the steps the Samoans have taken, which clearly indicate their desire to move towards greater self governance and self determination.

“In the past, American Samoa has asked this committee to remove American Samoa from the list of colonized territories because we felt our ‘unincorporated and ‘unorganized’ status was akin to being a self governing country,” said Togiola.

“While that position still holds today, I believe, that given the history, it is time that a more definitive work plan is put in place to forge a more collaborative approach between the Territory and our protector, the United States of America, for moving forward on issues of political status, local autonomy, self governance, and economic development.”

Togiola then directed the Committee’s attention to the history of American Samoa’s political development beginning with the crafting of the Deed of Cession as the original guidance from ‘our forefathers’ that the land, the language and the culture were to be protected and preserved for Samoans.

He pointed out the necessity to advance once again the process of change because of his concern with the rise in the federalization that has adversely affected American Samoa’s political and economic growth.

The Governor noted the struggle with regards to minimum wages; restrictions on grants and aid; the threat of federalization of immigration and customs; and a host of other restrictions that are affecting the territory without American Samoa’s choice or voice.

“One of the challenges we deal with everyday is the lack of technical assistance and expertise to truly understand the effects of federal laws on our small Territorial economy and form of government,” he said.

“Another challenge is the increasing responsibilities of Territories to comply with federal requirements at levels that are expected of … States, and at times, in cases where considerations should move for exempting the Territories from these requirements.”

Togiola informed the Seminar participants of the preparations by American Samoa for its constitutional review in June, with the establishment of the Constitution Review Office, the Constitutional Review Committee and the educational outreach undertaken to engage the people and explain the issues and the process, especially to the students from the college and the high schools.

“American Samoa stands upon the cusp of a process which may result in sweeping changes to our political landscape,” said Togiola.

“While we are mindful and respectful of our ties with the United States, I have been encouraging our people to take a long term view about our situation, bearing in mind the protection of those things that make us Samoans.”

During the presentation of his statement, Governor Togiola extended an invitation to the Chairman of the Special Committee on Decolonization, Donatus Keith St. Aimee (of Saint Lucia) to be his personal guest to observe the deliberations of the Constitutional Convention in the month of June, so he may report back to his Committee on the process and the expressions of the constitutional review. St. Aimee assured Togiola that he is grateful for the invitation, and if he can, he would like very much to accept the invitation.

At the closing of the two-day seminar on Thursday, Togiola asked the U.N. Committee, through its chairman to not focus solely on the political decolonization of the Territories.

“A thorough examination of decolonization that has taken place, especially as regards to the small island states, uncovers that while political decolonization is achieved, these states often times maintain a high degree of dependence upon their administering power for economic survival. This can be seen and characterized as economic colonization,” the governor said.

“For decolonization to be meaningful, states must have the ability to provide for themselves, or at least be able to make their own way in the world. This economic decolonization may ultimately prove to be more challenging than decolonizing politically,” he said.

He also expressed his sincere gratitude to Aimee and the committee for the invitation to appear before the committee. Togiola further thanked Phillippe Gomes, President of New Caledonia, for the wonderful hospitality and generosity shown to American Samoa all throughout the seminar.

Before departing New Caledonia on Saturday (New Caledonia time), Togiola will be conducting follow up meetings with Director General of the Secretariat of the Pacific Community, Dr. Jimmie Rodgers, and his staff on technical assistance matters important to the Territory.

(Source: Governor’s Office, American Samoa)

INTENSIFICATION OF DECOLONISATION PROCESS DISCUSSED AT UN PACIFIC SEMINAR

Adapted from UN press releases and interviews with non self-governing territory representatives, experts and diplomats from UN member States who participated in the Seminar.

The United Nations (UN) Special Committee on Decolonisation held its annual regional seminar in Noumea, New Caledonia, from 18 to 20 May 2010. The seminar, hosted by the Territorial Government of New Caledonia in concurrence with France as the administering Power, was conducted within the framework of the Second International Decade for the Eradication of Colonialism (2001-2010). It was chaired by Donatus Keith St. Aimee, the Chairman of the Special Committee.

This year marks the end of the Second International Decade for the Eradication of Colonialism, as well as the fiftieth anniversary of the General Assembly Decolonisation Declaration. A key objective of the seminar was to help the Special Committee assess progress made in the decolonisation process in today’s world, with a particular emphasis on the Pacific region.

In this connection, the participants heard the views of representatives of non self-governing territories so as to reconfirm the commitment of the international community towards achieving the decolonisation objectives in the remainder of the Decade and especially the chartering of the way forward. The deliberations served as a basis for conclusions and recommendations which will be considered by the Special Committee at its forthcoming substantive session in June and subsequently transmitted to the UN General Assembly.

Participants included a delegation of the Special Committee and other United Nations Member States; representatives from governments of the non-self-governing territories, administering Powers, organisations of civil society based in the Territories, as well as a number of experts from both the Pacific and the Caribbean regions.

The current membership of the Special Committee consists of the following 29 Member States: Antigua and Barbuda; Bolivia; Chile; China; Congo; Côte d’Ivoire; Cuba; Dominica; Ecuador; Ethiopia; Fiji; Grenada; India; Indonesia; Iran; Iraq; Mali; Nicaragua; Papua New Guinea; Russian Federation; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Sierra Leone; Syria; Timor-Leste; Tunisia; United Republic of Tanzania; and Venezuela.

DAY ONE
Opening Session

In a message to open the Pacific Regional Seminar, United Nations Secretary-General Ban Ki-moon urged all involved to undertake “fresh and creative efforts” towards full implementation of decolonisation. In a message delivered by Laura Vaccari, Chief of the Decolonisation Unit of the of the UN Department of Political Affairs, the Secretary-General described Timor-Leste’s successful quest for independence and two referenda held in Tokelau as highlights of the preceding Decade. “Nonetheless, 16 Non-Self-Governing Territories remain on the [United Nations] list,” the Secretary-General said. “It is essential for the people concerned to understand the options regarding their political status and to be able to exercise their right to freely choose their future.”

Welcoming the seminar particpants, Special Committee Chairman Donatus St. Aimee (Saint Lucia) said that the Seminar was the last of the series planned for the Second Decade and as such was an important opportunity to assess the implementation of its mandate. He noted that the Seminar was being held in a Territory that was going through a challenging and complex process of determining its political future, in close cooperation with the administering Power, France. “The Special Committee regards the hosting of the Seminar as a significant manifestation of the improved cooperation between the administering Power and the [Special] Committee in advancing the decolonisation process in general and in the Pacific region in particular,” he said.

Welcoming participants on behalf of the Government of New Caledonia, President M. Philippe Gomes said all the Territory’s major political actors — the High Commissioner of France, the President and Vice-President of the Congress, and the Presidents of the Assemblies of the three Provinces — welcomed the holding of the Seminar in New Caledonia. He said New Caledonia’s current path towards self-determination had not been easy and that was one of the reasons why holding the Seminar in the Territory was important — so the Special Committee could confirm through first-hand discussions and exchanges the process and manner in which the process was taking place.

Also welcoming participants, the High Commissioner of France, representing the Administering Power, said that the support his country had provided for the event highlighted its commitment to the United Nations in the area of decolonisation. He expressed hope that the visit would help the Special Committee measure socio-economic progress in the Territory and the willingness of the community to build a common destiny based on shared values.

Substantive Sessions

The two meetings held on Day 1 of the Seminar following the opening session focused on the resolution of the remaining challenges for Non-Self-Governing Territories in the Pacific — American Samoa, Guam, New Caledonia, Pitcairn and Tokelau.

DONATUS ST. AIMEE (St. Lucia), Special Committee Chairman, said in his keynote address that 50 years since the Declaration’s adoption, and after two Decades for the Eradication of Colonialism, the fact that 16 Non-Self-Governing Territories remained on the list suggests the need for “creative thinking” to move forward. “At this seminar we are going to assess the socio-economic and political developments in the Territories with a view to working out, in cooperation with the administering Powers and representatives of the Territories, a realistic, action-oriented programme of work on a case-by-case basis for the way forward in advancing the decolonisation process.”

He expressed hope that the Seminar would give participants from Non-Self-Governing Territories the type of information and options available to make an informed choice. “Because it is not for the [United Nations] to determine the best outcomes,” he continued. “The [United Nations] is primarily concerned with whether choices are made freely by the people, based on appropriate information and understanding.” The Special Committee wished to listen closely to what the peoples concerned had to say, in the hope of offering proposals to the General Assembly, on a case by case basis, he said.

“Each [non-self-governing territory] still on the [United Nations] decolonisation list has a unique mix of circumstances, often involving quite complex political issues,” he said. “It is essential that ‘creative thinking’ that is sensitive to the circumstances is used by all concerned in addressing these issues, as there is no ‘one-size-fits-all’ solution.”

As an example relevant to the Pacific, he noted that the wishes of small island States needed to reflect their unique vulnerabilities in terms of survival in the modern world. “Today, major issues of sustainability — in economic, environmental and social terms — confront everyone, but especially smaller, more vulnerable societies,” he said.

The Chair noted that, in 2010, it was the responsibility of the Special Committee to bring those issues to the forefront, and the challenge for everyone was to think within the context of present realities and sustainable futures. The Seminar would assess the progress of decolonisation actions at the international level, measures undertaken by the United Nations in cooperation with the administering Powers, as well as the impact of developmental activities and programmes carried out by the Organisation’s specialized agencies and other bodies, as well as non-governmental organisations in the Territories.

“We also need to evaluate the Committee’s role in following the impact of the economic and social developments on the constitutional and political advancement of the [Non-Self-Governing Territories], as well as its efforts aimed at ensuring the full cooperation of the administering Powers in this matter,” he said. “I trust that after these deliberations we can come up with a plan for the way forward, as neither the work of the Special Committee nor the process of decolonisation end with this Seminar or with the Second Decade. There is clearly the need for additional work, focused work, if we are to come up with some success stories and move into the future,” he concluded.

Remaining Challenges in the Pacific Region

PHILIPPE GOMES, President of the Government of New Caledonia, opened the substantive discussion by recalling that the Territory had been close to civil war in 1986, before both sides had “resumed the thread of dialogue” and taken the chance to return to peace. The Matignon and Nouméa Accords had engaged the Territory’s people on the path of declared and assumed decolonisation, he said.

Describing New Caledonia’s “unique” process, he said it was based on several principles, including the recognition of the identity and legitimacy of both the original Kanak peoples and those who had come later from elsewhere. The process affirmed the complex history that all the people of New Caledonia shared, and brought them together around a common destiny. “We have a rendezvous with ourselves for a shared future,” the President concluded.

VICTOR TUTUGORO of the Political Bureau of the pro-independence Front de Libération National Kanak Socialistse (FLNKS) expressed his appreciation on behalf of the Territory’s indigenous peoples for bringing the Seminar to New Caledonia, and for the attention given by the United Nations since its addition to the decolonisation list in 1986.

He said that, in spite of efforts, achieving economic, social and community balance in New Caledonia remained a major challenge, pointing to many indicators showing that development in the provinces of Northern and Loyalty Islands lagged behind that of Southern Province. At the conclusion of the Second International Decade, it was worth considering an extension into a third Decade, given that the Kanak people, and others around the world, still needed the assistance of the Special Committee and the United Nations system to pursue decolonisation to its end.

There followed a general discussion on the decolonisation process in the Pacific, and New Caledonia in particular, with participants particularly focused on socio-economic issues.

The Chairman noted that the colonial legacy was often one of uneven development, with former colonial cities and centres often starting from a “higher base” of social and economic infrastructure development than surrounding districts, and thereby creating challenges for post-decolonisation administrations.

The importance of education also featured strongly in discussion, with several participants noting that it was not only a driver of economic development but also a mechanism for ensuring the protection of minority or indigenous languages and cultures.

In the context of New Caledonia, the President added that despite a free school system where graduation numbers were rising, indicators for Kanak students remained a challenge. He outlined a number of initiatives designed to better adapt the school system to social, cultural and geographical challenges, noting that education was one of the legislative competencies being transferred to the New Caledonia legislature.

Several experts and representatives of civil society presented papers on decolonisation processes underway worldwide including the Pacific territories of Guam and Pitcairn along with Gibraltar and various territories in the Caribbean region. in order to inform and enhance the Special Committee’s work in relation to New Caledonia and the Pacific more broadly.

EDWARD P. WOLFERS, Expert from Australia, described the concepts of self-determination and decolonisation as close in meaning but not interchangeable. Discussing the history of the decolonisation process in the Pacific, he drew particular attention to the “home-grown” peculiarities of constitution-making in Samoa and Papua New Guinea, noting that those processes did not owe their authority to the laws of the former colonial Power. Rather, they embodied the exchange of experiences and ideas, involving as they did various forms of regional cooperation and collaboration. In conclusion, he made a number of recommendations relating to clarifying the role of self-determination in achieving decolonisation and providing greater transparency and accountability in all aspects of the process in order to ensure that the relevant information reached the people in the remaining Non-Self-Governing Territories.

SARIMIN JACQUES BOENGKIH of the Agence Kanak de Developpement said that, with the transfer of power, New Caledonia could exercise some level of self-governance. With the Territory on a path to becoming an independent State, it needed good governance as well as educational programmes focusing on raising public awareness among the indigenous peoples. He underlined that New Caledonia was eligible for assistance from United Nations agencies, and requested their help with economic and social development.

YOKO ORYU, an Expert from Japan, provided a comparative analysis of the decolonisation processes in the French overseas departments in the Caribbean and that of New Caledonia, stressing that the growing prominence of the issue in the latter Territory was creating increasing discussion in the international community.

HOPE A. CRISTOBEL of the Guahan and Chamorro Studies Association, deplored the situation of Guam’s Chamorro people who had been dispossessed of their land and were losing their identity as a result of a United States military build-up in the Territory. She proposed that the Special Committee give the utmost priority to Chamorro self-determination, in conformity with the relevant United Nations documents.

HERBERT FORD of the Pitcairn Islands Study Centre recounted the recent transformations and current challenges facing the people of Pitcairn, including the restructuring of its governance system and the provision of human rights protections under a new constitution, ratified in March 2010. He said the independence option was hardly possible for Pitcairn in light of its dependence on supplies from New Zealand and its subsistence on garden produce and fishing. He highlighted as possible ways forward for Pitcairn the other self-determination options of United Nations trusteeship, or retaining a connection with New Zealand similar to that administering Power’s relationship with Tokelau.

CARLYLE CORBIN, Independent Expert from the Caribbean (US Virgin Islands) presented “An Analysis of Implementation of the United Nations Decolonisation Mandate during the Second International Decade for the Eradication of Colonialism (2001-2010) and Future Strategies for Completion.” The analysis was a follow-up to Dr. Corbin’s “Mid-Term Assessment of the Level of Implementation of the Plan of Action of the Second International Decade for the Eradication of Colonialism (2001-2005) presented to the UN Caribbean Regional Seminar in St. Vincent and the Grenadines in 2005. He had done the initial assessment of the implementation of the decolonisation mandate of the first International Decade for the Eradication of Colonialism (1991-2000) in presentations to the Pacific Regional Seminar in the Marshall Islands, and to the Caribbean Regional Seminar in Cuba in 2001, respectively.

In the paper, he outlined the legislative authority for the two international decades which were designed to focus attention on implementing the decolonisation mandate. In this connection, he alluded to the actions called for in the decolonisation resoluitions of the UN General Assembly and of the Economic and Social Council (ECOSOC) during the two decades, along with the recommendations of the representatives of nthe territories offered at the regional seminars during the period.

He emphasized the importance of disseminating information and the potential role that United Nations information centres could play in that regard. He recalled that the UN General Assembly had recognised self-determination as a human rights issue, and had advocated for collaboration between the Special Committee and relevant United Nations bodies including the Human Rights Committee and the Committee on the Elimination of Racial Discrimination, among others. He said the Seminars were possibly the most important outcomes of the two Decades since they allowed a cross-fertilization of ideas. He also called attention to the disconnection between United Nations resolutions requiring action on decolonisation, and the budgetary and resource allocations needed to ensure implementation of those resolutions.

On future strategies, he called for a new decade which would focus non implementation of the excellent actions already adopted by the international community with an updated plan of action based on the involvement of the wider UN system of organisations which all have a role to play. He also supported a more consistent role of outside actors, including the designation of an Independent Expert/Special Rapporteur, similar to the methodology of the Human Rights Council, who would undertake critical analyses of the situation on the ground in the individual territories. He noted that the Expert would dialogue with the members of the Special Committee in an interactive dialogue similar to that utilised by the Third Committee of the General Assembly.

JOSEPH BOSSANO, Opposition Leader of Gibraltar, also raised the issue of disseminating information on decolonisation, saying it was insufficient to adequately advance the process unless it was supported by dialogue among all parties. He said the Special Committee could play a more consistent role in following up on the issues and concerns raised at the Seminars.

DAY TWO

Pacific Region

The Special Committee continued its deliberations on Day 2 with discussions on challenges in the Pacific, Caribbean and elsewhere, as well as the broader role of the United Nations in the decolonisation process.

TOGIOLA TULAFANO, Governor of American Samoa, made the first presentation of the day, recalling that, in the past, the Territory had requested the Special Committee to remove it from the list of Non-Self-Governing Territories because its “unincorporated” and “unorganized” status was akin to that of a self-governing Territory. While it held the same position today, the time had come for a more definitive work plan to force a more collaborative approach between the Territory and the administering Power, the United States, in moving forward on issues of political status, local autonomy, self-governance and economic development.

He noted the affinity of the Territory’s people with the administering Power, manifested in a significant number of American Samoans serving in the United States armed forces. He also emphasized that the territory exercised control over its own immigration and customs (unlike other non self-governing territories under US administration). However, there was cause for worry that control over these two administrative competencies could be taken away by the US through “federalisation.” He cited the example of US “federalisation” of immigration and labour controls previously exercised by the Commonwealth of the Northern Mariana Islands (CNMI).

[The CNMI is a US – administered non self-governing territory in the Pacific which is not on the UN list, but whose weakened autonomy would place it below the threshold of full internal self-government. – OTR]

The American Samoa governor also commented on the unilateral application of US federal minimum wage laws to the territory which have caused serious, perhaps irreparable, economic damage. He lamented that the absence of federal technical assistance and expertise to help American Samoans truly understand the effect of federal laws on the Territory’s economy and its form of government further exacerbated the situation.

Those issues could be resolved by applying a clearly specified, consistent principle as to how the Territory would be treated in the future, he said. To that end, a constitutional committee was preparing proposals to be taken up by the Territory’s Constitutional Convention in June. He expressed hope that the questions of self-governance, self-determination and increased local autonomy would be at the top of the list. He also stressed the importance of providing assistance and training on issues critical to the Pacific region. In that connection, he requested the Special Committee to make visit American Samoa during its Constitutional Convention.

FAIPULE KURESA NASAU, Ulu of Tokelau said the outcome of the second referendum on free association with New Zealand, which had not met the two-thirds majority, may have been the result of concerns that self-determination might have meant severing ties with the Government and people of New Zealand, which Tokelau did not want to do. Remaining on the list of non self-governing territories, Tokelau was very conscious of its right to self-determination and aspired to return to that issue in the near future, he said. For the time being, however, self-determination considerations must take second place to the pressing needs of economic development, he said, expressing hope that the upcoming negotiations on the next economic support arrangement would conclude successfully and help address those needs.

DAVID PAYTON, Director, Office of the Administrator of Tokelau (New Zealand), elaborated on the Territory’s situation, stressing his country’s commitment to delivering quality services and infrastructure, including transport, power, education and health. Highlighting the difficulty of delivering services to Tokelau due to its remoteness and small population of less than 1,500 people, he asked how the principles of equity and viability could be applied to the process of decolonisation.

He said there was a need to think hard about how to proceed in Tokelau, bearing in mind the difficult situation in which Niue now found itself following its move to free association with New Zealand several years ago. “It is likely to be necessary for Tokelau’s leaders to make hard decisions and set priorities that will require some preferred activities to be set aside,” he said. He said that finding the right balance will determine the well-being of Tokelau and its people. “Decolonisation will be a factor in this dynamic process, but only a small part of it,” he concluded.

Caribbean Region

STEVE MCFIELD, representative of the Cayman Islands, said a new Constitution had been formally promulgated in November 2009, establishing the post of Premier for the fist time, among other changes. The Constitution had been approved by a large majority in a special referendum. As affirmed during the general elections of May 2009, the territorial government had no popular mandate to pursue full political independence, he said, adding that its attendance at the Seminar should be seen as an attempt to make its position clear and distinct.

CARLYLE CORBIN, Independent Expert, presented a paper on “Challenges to the Attainment of Full Self-Government for Caribbean Non-Self-Governing Territories under United States Administration.” He said that there were important similarities to be taken into account among the dependency governance models among the Caribbean and Pacific territories under US administration. In this connection, he made reference to Puerto Rico and the US Virgin Islands in the Caribbean, and American Samoa, Guam and the Northern Mariana Islands in the Pacific.

Discussing the US Virgin Islands, he said that a 1993 referendum on political status options had provided “an excessive number of seven alternatives” which had contributed to a lack of clarity on the part of the electorate resulting in the failure to achieve the required 50 per cent of registered voters, with the territory reverting to the status quo by default. More recently, a Constitutional Convention had produced a draft constitution in 2010 which was “not designed to address the colonial status nor provide any serious devolution of authority” as was the case with the 1993 political status process. He advised that the proposed constitution was presently under consideration of the US Congress for approval.

Highlighting the importance of education in the decolonisation process, he said other measures currently before Congress included a bill on funding educational programmes on political status options in American Samoa, Guam and the US Virgin Islands, as well as a referendum measure for Puerto Rico.

Other Non-Self-Governing Territories

FADEL KAMAL, Representative of the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Polisario Front) speaking on the question of Western Sahara, said it was regrettable that the fiftieth anniversary of the Decolonisation Declaration, and the end of the Second International Decade, had passed by without the Saharawi people exercising their right to self-determination. “The Saharawi people rightly feel that their legitimate aspirations have been overtaken by political expediency and a meek United Nations system that is seemingly unwilling or unable to deliver on its promise,” he said.

He said the United Nations must ensure that Morocco abided by its obligations to respect the basic human rights of Saharawis, and should consider options for international administration of the natural resources and associated revenues of Western Sahara pending a political solution. He suggested further that the Special Committee send a delegation to Western Sahara to assess the situation, as part of a renewed effort to monitor the decolonisation process and implement the Organisation’s “sacred trust” to the Saharawi people. “It is clear that the only viable solution to the question of Western Sahara is to ensure that the Saharawi people have the opportunity to decide freely and democratically their future […] through the organisation of a free, fair and transparent referendum under the auspices of the United Nations,” he concluded.

KHADDAD EL MOUSSAOUI, Vice-President, Royal Advisory Council on Saharan Affairs (Morocco), presented an outline of the “Moroccan Initiative for negotiating an autonomy status of the Sahara region”, saying it “guarantees to the people of Western Sahara, their position and role, without any discrimination or exclusion, to freely play in organs and institutions that provide exclusive democratic management of the Western Sahara internal affairs, through autonomous legislative and executive powers, and resources financial control […]. Morocco also guarantees them active participation in the economic and socio-cultural areas within a sovereign Kingdom.”

He said the other parties to the dispute over Western Sahara had adopted a “radical attitude”, noting in particular a “narrow interpretation of the principle of self-determination”. In that respect, and in hopes of seeing the political process continue in peace, Morocco wished to see the other parties engaging in intense and substantial negotiations. Reaffirming Morocco’s attachment to the process of negotiations and its support for the efforts of the Secretary-General and his Personal Envoy, he restated his country’s “determination to pursue its commitments aiming at achieving a political negotiated solution on the basis of the ‘Moroccan Autonomy Initiative.”

MOHAMED SOFIANE BERRAH (Algeria), began his presentation by underscoring the importance of reminding the Special Committee of its raison d’etre — monitoring the implementation of the Declaration and assisting Non-Self-Governing Territories as they pursued any of the three self-determination options (independence, free association and integration – OTR). Today, colonialism appeared to have lost its “character of despicability”, he said, recalling that United Nations resolutions condemned colonialism while the goal of the Special Committee was to eradicate it. Any socio-economic benefits that colonisation may have bought to the peoples of the Territories should not justify the fact of colonisation itself, he stressed.

On the question of Western Sahara, he said it was only fair that the Territory’s people enjoy international protection. That could be achieved by extending the mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO) to include human rights monitoring and reporting.

He went on to say that the process of negotiations over Western Sahara “cultivates hope for a peaceful solution”, emphasizing, however, that dialogue was not an end in itself and must lead to conclusions and results if peace was to be achieved in the region. In light of major ongoing challenges, Algeria would support the idea of a Third Decade for the Eradication of Colonialism, in hopes that it would help bring about an end to decolonisation once and for all.

EMMA EDWARDS, Member, Legislative Assembly of the Falkland Islands (Malvinas) recalled that the islanders had repeatedly expressed their firm view that “we are content with our current relationship with Britain”, noting that, for a variety of reasons, the options of full independence, free association or integration with an independent State were not suitable for the Territory. “We are happy with the status quo, and do not like being told by others what to do.” The Falkland Islands were currently not ready for independence, “but we do express our right of self-determination […] with almost all of the people of the Falkland Islands wishing to remain and enjoy our British Overseas Territory status.”

Outlining aspects of the “healthy democracy” enjoyed by the Territory, she said they included elections in November 2009, and a new Constitution, which had entered into force in January 2009, and enhanced local democracy, established a greater degree of internal self-government and provided mechanisms for transparency and accountability. While the Territory’s small economy “took a hit” during the financial crisis, it remained strong, she said, citing a number of programmes and initiatives in the areas of transport, telecommunications, energy production, health care and education which benefited the islanders.

MARIA FERNANDA CANAS (Argentina) said that, although her country had consistently supported the applicability of the self-determination principle to peoples under colonial rule, that was not the case in the “Question of the Malvinas Islands,” which affected the territorial integrity of Argentina. “This question refers to the sovereignty dispute over the Malvinas, South Georgia and South Sandwich Islands and the surrounding maritime areas, and clearly differs from traditional colonial cases,” she emphasized.

Recalling that the United Nations had rejected the applicability of the self-determination principle to the Malvinas question, she said the UN classified it as a “special and particular” form of colonialism constituting a sovereignty dispute to be resolved by negotiations between Argentina and the United Kingdom, taking into account the interests of the islanders. “We have committed ourselves to taking into account their interests,” she said, adding that Argentina would do that by enshrining a commitment to their way of life and interests in the Constitution and calling on the United Kingdom to resume negotiations to solve the dispute. “The Argentine commitment to recover the Islands […] is not some sudden passion but a long-sustained national concern that stretches back more than 177 years,” she concluded.

CARLOS ARAGON DE LA SERNA (Spain) said: “I regret to inform the participants in this Seminar that […] we unfortunately cannot provide the Special Committee with any good news regarding the decolonisation of Gibraltar.” Arguing that Gibraltar’s new Constitutional Order of 2006 did not entail any change in its international status, he noted that “colonialism by consent does not mean that the resulting political arrangements are any less colonial”, and that the new constitutional text did not affect the legal validity of the 1713 Treaty of Utrecht. “My Government is therefore opposed to any attempt to see Gibraltar removed from the UN list of territories that are undergoing the decolonisation process,” he said.

United Nations doctrine rightly led the Special Committee to differentiate between Non-Self-Governing Territories subject to a decolonisation process where there was a dispute over sovereignty, such as Gibraltar, and those where there was no such dispute. Further, he said, “the mandate of the United Nations […] invites the United Kingdom and Spain to find a negotiated solution taking into account the interests of the population of the colony.” Despite Spain’s willingness, he said, “the United Kingdom has consistently ignored our appeals to resume conversations to find a definitive solution to the question of Gibraltar”.

JOSEPH BOSSANO, the Opposition Leader of Gibraltar, said the territorial government did not attend the Special Committee’s Seminars because it considered itself already decolonised. One of the Seminar’s main aims was to hear the views of non-self-governing peoples, he said, calling for more time to be given to their representatives rather than Member States. The Seminar was an opportunity for the Special Committee to reach out to those people without the filter of the administering Power. Discussing the historical basis of the dispute over Gibraltar, he said the Treaty of Utrecht had been signed in 1713, and he suggested it was time that Member States considered new ideas and solutions that would reflect the current world.

Role of United Nations System

SALA GEORGINA BONIN, United Nations Development Programme (UNDP) Multi-Country Office, Samoa, began by outlining the agency’s work in supporting the self-determination process in Tokelau, part of its broader work supporting Tokelau under a special relations agreement signed with New Zealand in the 1980s. She said the main areas of UNDP’s support for Tokelau’s self-determination included governance-reform initiatives to help the Territory’s home-grown government structure and direct assistance for the first and second referendums on the Treaty of Free Association with New Zealand in 2006 and 2007.

Following the referendums, New Zealand and Tokelau had agreed to a “pause” on that front, opting to focus on other development priorities and the Millennium Development Goals, she said, noting that UNDP continued to provide assistance under its Country Programme Action Plan on issues relating to equitable economic growth and poverty reduction, good governance and human rights, crisis prevention and recovery, sustainability, environmental management and the cross-cutting issue of gender equality.

CARLYLE CORBIN, Independent Expert, presented a paper entitled “The Role of the United Nations System in Providing Developmental Assistance to the Non self-governing territories.” He focuses attention on the importance of participation by Non-Self-Governing Territories in the work of the United Nations system, noting that it was critical in developing their readiness to assume the powers of self-government. That was especially true because many of the Territories’ economies required a heightened measure of human resource development in relation to their engagement in the globalised economy. He emphasised that the UN mandate for assistance to the territories from the UN system dated back to 1946 with resolutions of the UN General Assembly routinely adopted but unevenly implemented.

He noted that virtually all Non-Self-Governing Territories, in the Pacific and Caribbean regions, were associate members of the Economic and Social Commission for Asia and the Pacific (ESCAP) and the Economic Commission for Latin America and the Caribbean (ECLAC), respectively. He also pointed out that by virtue of this associate membership these territories were also provided observer status in major United Nations conferences and special sessions in the social and economic sphere.

He pointed out that many United Nations programmes, funds and specialized agencies allowed some form of participation through membersdhip, associate membership or observer status, while other UN bodies did not, noting that participation by the Non-Self-Governing Territories “has not fully become standard United Nations practice”. In particular, he said the Economic and Social Council should revisit the resolution it had earlier declined to approve, which called for the Territories to participate directly in its functional commissions in areas such as statistical analysis, sustainable development and other socio-economic related areas relating to their ongoing development processes. “The absence of a role […] in the work of the Commission on Sustainable Development is especially glaring, given that the issues of the vulnerabilities of small island States are considered in that body,” he concluded.

DAY 3

The final day of the seminar focused on the way forward. DONATUS ST. AIMEE ( Saint Lucia), Chairman of the Special Committee, noted the importance of nation-building as an essential prerequisite to successful self-determination. He said economic and social development, as well as education about self-determination processes and options, should be in place before any decision on self-determination was taken. “If this process hasn’t taken place before you exercise your right to self-determination, then you may spend an enormous amount of resources undertaking that task afterwards,” he cautioned. “That is why sometimes it may not be a bad idea to have a period of reflection to see if all the people who live in the Territory are all on the same track and committed to that process.”

JOSEPH BOSSANO, Opposition Leader of Gibraltar, said the real problem with the Territories remaining on the United Nations list was that, for many of them, neither full independence nor full integration with another State was a feasible option, which left only free association with another State as the only available one. Given the many different forms that free association could take, it was worth asking how to define a form of free association that could demonstrate a Territory’s readiness for a full measure of self-government. Citing the question of Gibraltar as an example, he concluded by arguing that, when it comes to Territories over which there was a sovereignty dispute, it was necessary to avoid “the controversial discussion about which link (with another State) and focus on the nature of the link, and whether the Territory is ready for such a link.”

The Chairman noted that a major problem was a lack of indicators and benchmarks to show what stage of the decolonisation process a Territory had reached. The Special Committee could begin thinking about that, he said. While holding a referendum was one physical manifestation of progress towards decolonisation, and the growth of gross domestic product (GDP) may be one manifestation of economic development, there may be a need for a more formal structure to allow the Special Committee to measure more accurately the readiness of a particular Territory and its people as they moved along the path to self-determination, he said.

HERY SARIPUDIN ( Indonesia) said that, since 16 Non-Self-Governing Territories were yet to be de-listed, his country fully supported the idea of a Third International Decade. It should be a “decade of more work” rather than a “decade of continuing talk”, he said, adding that there was a need to consider establishing a comprehensive, pragmatic and realistic process for assessing self-determination processes and options, taking into account the specific circumstances of each Territory.

The Chairman noted that a great deal of discussion on decolonisation focused on the political role of the administering Power which, while obviously important, should not be seen as the only facet of the process. Encouraging private sector actors in a Territory to be good corporate citizens was also vital. “If they don’t reflect a sense of goodwill, it makes the job of the administering Power and the local authorities much more difficult,” he said. “If we can encourage the private sector to become good corporate citizens, and if the population can see that resources are being used for their benefit, then this contributes to a sense of trust and nation-building.”

CARLYLE CORBIN, Independent expert, said a number of good ideas had emerged from the present Seminar and previous ones, so there was no shortage of ideas on the way forward. A Third Decade may be appropriate, but it should be a decade of “implementation” wherein the pursuit of decolonisation was “renewed” rather than “reaffirmed” as usual.

He made reference to the points raised by the Chairman on the need for indicators and benchmarks to assess the level of self-government, and recalled that the indicators had been set forth in the Annex to Resolution 1541 (XV) which outlines the minimum standards for self-government. In this connection, he advised that these standards provided for the necessary parameters under which a number of political models could be judged with the critical stipulation that they meet the objective of full political equality. He made reference to models such as Greenland and Faroe Islands in autonomous arrangements relationship with Denmark; the Federated States of Micronesia, Marshall Islands and Palau in free association with the US; the Cook Islands and Niue in association with New Zealand; and the Netherlands Antilles and Aruba as autonomous countries within the Kingdom of the Netherlands.

He emphasized that these models should be studied by the Special Committee so as to better inform the people of the territories of how the legitimate options available to them actually operate in practice. He also recalled that the Special Committee had been presented with a self-governance index as early as the 2000 seminar in Majuro, and that the case-by-case review of each territory which was to have been undertaken pursuant to UN resolutions had not been operationalised. Under these conditions, it would be difficult to assess whether any of the remaining territories met the international standards of full self-government, and whether changes in some autonomous arrangements rendered the models less than fully self-governing.

EDWARD WOLFERS, an Expert, said indicators could help place Territories on a scale of progress towards self-determination, rather than simply declaring a particular process had “failed”. For example, Tokelau had not failed in the self-determination process; rather, the process had succeeded because the people had expressed their views in two referenda. Furthermore, having benchmarks in place could help to measure not only political developments towards self-determination but also the socio-economic developments that could make a Territory stronger and better equipped for self-determination, he said.

DAVID WINDSOR ( Australia) noted his country’s support for the Nouméa Accord and the role that New Caledonia had begun to play in the Pacific Islands Forum. Looking to the future more broadly, he said education and environmental issues would be critical for Non-Self-Governing Territories, particularly in the Pacific, adding that Australia provided scholarships for students from the Pacific, including those from Tokelau and New Caledonia, to study in fields including environmental and ecological studies.

STEVE MCFIELD, from the Cayman Islands, agreed with previous speakers that a nation-building process must take place for the exercise of self-determination to be successful. Outlining the history of the Cayman Islands under various forms and degrees of colonial administration, he said that, due to careful and forceful negotiation among the people and with the administering Power, the Territory now had “one of the best arrangements” in the world.

HOPE A. CRISTOBEL of the Guahan and Chamorro Studies Association said it was a shame that after two international decades, Guam was now feeling the effects of “hyper-militarisation” by its administering Power. Rather than merely looking at Territories that had made progress towards decolonisation, it was important to ask why some had actually regressed in recent years. She also noted that information provided to and by the Special Committee should be gleaned from sources other than the media, which may be biased towards administering Powers.

FADEL KAMAL of the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Polisario Front) said that in order to move forward one must reflect on the Special Committee’s history and mandate, of which there was much to be proud. The voice of those that the Special Committee had been established to help must always be heard, including through self-determination referenda, when the people were ready and willing, and when the possible outcomes would be sustainable. He said he agreed with the idea of a third international decade and supported the role of the Seminars. Hopefully, there would be more opportunities in the future for representatives of Non-Self-Governing Territories to share their views, answer questions and engage in discussion.

ROBERT G. AISI ( Papua New Guinea) said there were lessons to be learned from the Special Committee’s past successes and failures, and there was also a case for taking some time to assess the Second Decade before launching straight into a third. He also agreed that the Special Committee could use the Seminars in a more strategic way to listen more closely to experts and representatives of Non-Self-Governing Territories, who may not have the opportunity to provide information at other times.

TOGIOLA TALALELEI A. TULAFONO, Governor of American Samoa, suggested that the Special Committee focus more closely on whether the decolonisation process was helping the socio-economic status of the Territories’ respective peoples, rather than simply focusing on political and administrative aspects. Many smaller independent States were continually in need of support and “without their own resources, they are literally economically colonized in many ways”, he noted, suggesting that a way forward for the Special Committee could be to make the economic situation just as important as the political one.

GEORGINA BONIN of the United Nations Development Programme (UNDP) said there seemed to be no consistent representation from United Nations agencies at the regional Seminars, pointing out that some agencies may have experiences and expertise that could be useful to share at future Seminars.

Presentation of the Draft Report

The Chairman noted that all participants had made valuable contributions, with many of their suggestions laying down challenges of thinking and method for the Special Committee. “You have thrown down the challenges and we have given an undertaking to respond,” he added. The Seminar’s conclusions and recommendations would be refined in light of the morning discussions for consideration at the Special Committee’s next substantive session in New York in June, he said.

Closing Session

PHILIPPE GOMES, President of the Government of New Caledonia, said the Territory had been honoured to host the Seminar, and expressed hope that its current institutional transformation gave an interesting example for participants from other Territories. He expressed admiration for the very high level of debate, which had been “animated and passionate, enriching and productive”, and for the participants who had shared and exchanged information, principles and inspiration.

Even though decolonisation for each Territory was pursued on a case-by-case basis, he said, the experience of others was always enriching, “feeding our thoughts and allowing us to think about other methods than we may originally envisage”. The Seminar had served as a useful conduit for information on the populations of Non-Self-Governing Territories, he said, noting that that was one of the Special Committee’s main aspirations. It was also a reminder that the building of nations was needed before self-determination could be successful. That was how New Caledonia had approached the issue — by becoming one people with their own destiny in their own hands, he said.

Chairman DONATUS ST. AIMEE ( Saint Lucia), in his closing statement, thanked the Government, administering Power, and people of New Caledonia for their hospitality, generosity and warm welcome. He praised the representation and input from a wide range of stakeholders within the Territory. “This makes me very positive about New Caledonia’s future,” he added.

He also praised participants in the Seminar for the constructive manner in which discussions had taken place, and for the wealth of ideas and insights that would be taken up in the Seminar’s conclusions and recommendations. He particularly thanked representatives of the media, saying their work was a key vehicle through which the Seminar’s message would be disseminated, particularly to the people of New Caledonia. “You have a responsibility to carry that message and help the decision-making process by letting the people know that their fate is in their own hands,” he said.

Noting that positive contribution by the UNDP representative, he expressed hope that more United Nations agencies, particularly those involved in such areas as food, agriculture, fisheries and the environment, would “come to the table” to share their experience and expertise with Non-Self-Governing Territories. If positive and constructive discussions continued among Non-Self-Governing Territories, administering Powers, Member States, non-governmental organisations and experts, each Territory would make the right decision about its future when the time came, he said.

The Seminar closed with the adoption of a resolution, by acclamation, expressing the Special Committee’s appreciation to the government and people of New Caledonia and expressing thanks to the people of New Caledonia for their generosity in hosting a successful Seminar.

Proposed USVI Constitution Presented to US Senate Committee

On the precise day that the United Nations Decolonisation Committee was convening a high-level seminar in Noumea, New Caledonia to examine the democratic deficit in the political dependency arrangements in the US Virgin Islands and other non-self-governing territories, the proposed US Virgin Islands Constitution which seeks to modernise the parametres of that territory's existing political status was being presented for consideration by the United States Senate Energy and Natural Resources Committee. Both events took place on 19th May 2010. OTR will shortly publish a selection of the territorial government presentations and expert papers presented at the UN seminar. The statement of the President of the US Virgin Islands Constitutional Convention at the Senate hearing follows.

Statement by Gerard Luz Amwur James II, President
Fifth Constitutional Convention of the U.S. Virgin Islands
to the Senate Committee on Energy & Natural Resources
May 19, 2010

Good Morning Chairman Bingaman, Committee members and all others present.

I am Gerard Luz Anwur James II, President of the Fifth Constitutional Convention of the Unites States Virgin Islands ("Convention"). It is my distinct honor to address this Committee.

The proposed constitution was drafted by the people and for the people of the United States Virgin Islands. It is not proposed to govern any other people. The people who have made negative comments about the document have not worn the shoes of those who have suffered the indignation of being governed externally. They have not examined the evidence that led the Convention to adopt provisions in this constitution that are so necessary to keep life going for those whose parents, grandparents, and great-grand parents have worked hard in order to own property that would provide life for themselves and their future generations. The critics have not reviewed the evidence that shows that those whose ancestry lies in the Virgin Islands have been devastated by the lack of support for the people of the Virgin Islands.

The evidence demonstrates that the territory has 114,000 residents and that more than 58,000 Virgin Islanders no longer reside in the Virgin Islands. These people now live in the mainland United States. Simple math resolves that this lost represents about one-half of the current population of the Virgin Islands. This exodus must stop or the Virgins Islands’ life blood will cease to exist. Extinction of the native people of the Virgin Islands is not an acceptable option.

The life blood of any people lies in its young. Historically, people of this great country work to provide a better life for their young with the hope that they will prosper from their parent's labor. The young of the Virgin Islands are leaving because their parents cannot pass on to them the home that had been in their family for decades. Unlike the mainland, the values of the homes in the Virgin Islands have soared due to the many tourist developments. These developments have caused the taxes on the ancestral home to be well beyond the ability of many families to pay. Their homes have been taken from them. Even worst is the plight of our young who remain and resort to violence in an effort to acquire something they can call their own. I sit as a witness to the lost of these young lives. As a funeral director, I daily look into the eyes of the young and see the absence of hope they once suffered. The Convention has compelling reasons for the provisions that are contained in the document.

The provisions in this constitution as they relate to "natives" is not new to this Congress. This body has recognized that the native people of this country and its territories at times need special protections in order for the native people to exist. The Congress of the United States has enacted laws for native people in Hawaii, Alaska, the Northern Marianas, Aleutians and the continental United States. Congress did not deny those provisions in advance because of alleged unconstitutionality. Congress knew that Constitutional challenges to a specific provision of law cannot be resolved by any litmus-paper test. Congress knew that constitutionality is determined on a case-by-case basis.

It was the United States government that established the definitions contained in the proposed constitution. These definitions should not bring suspicion or challenge as being improper. These definitions are derived directly from the Government of the United States. It was an act of Congress that differentiated the people of the Virgin Islands and conferred different legal status upon them by virtue of 8 U.S.C. §1406. It was this act of Congress that carved out certain rights for “natives.” To the best of my knowledge, these provisions have not been challenged or overturned.

The Fifth Constitutional Convention’s fact gathering process included public meetings throughout the Virgin Islands. The Convention heard testimony from hundreds, reviewed formal presentations and documents.

Everyone in this room including the Justice Department is fully aware that our proposed constitution is not designed to usurp the sovereignty or supremacy of federal law. The passage of our constitution will not, nor is it intended to, alter our political relationship with the United States. It merely represents a further step along the path toward a full measure of self-dignity.

We strongly believe that the constitution's provisions are not discriminatory, do not violate federal law and support a Constitutional appropriate interest. Throughout our history our shores have remained open to people of all cultures and ethnicities. The Virgin Islands has long been known as the ‘American Paradise.” The proposed constitution is our sincere effort to insure that our beloved territory remains our “Virgin Islands Home.”

We asked that Congress approve the proposed constitution with all of its present provisions. At the very least we ask that the constitution be returned with no action.

I am aware that Congress is considering a resolution to urge the Convention to reconvene. We do not ask this, but if the resolution passes, we ask that Congress in the resolution provide the financial resources that would be necessary for the Convention to reconvene. We ask that Congress allow the Convention, after reconvening, to place the proposed constitution before the voters of the territory without further need to send the document to the Governor of the Virgin Islands, who has tried in every way to circumvent the will of the people. We further ask that the requirement to send the proposed constitution back to the President and Congress be eliminated.

This is our fifth attempt to attain greater self-government since Congress passed PL 94-584 in 1976, which granted us the authority to draft our own constitution. You need to know how important this Constitution is to the Virgin Islands. This proposed constitution has helped to breathe new life and hope into our people. It is the talk of every radio and television show. It is the topic of daily conversation. People now believe that their life-long dreams will come true. These pieces of paper may not mean much to many in this room, but it means life to the people of the United States Virgin Islands.

Thank you again for your time and consideration.

US Virgin Islands Constitutional Convention Replies to US Concerns

REPLY OF US VIRGIN ISLANDS CONSTITUTIONAL CONVENTION TO THE MEMORANDUM OF THE U.S. DEPARTMENT OF JUSTICE REGARDING THE PROPOSED CONSTITUTION FOR THE U.S. VIRGIN ISLANDS

March 29, 2010

This memorandum is written in response to the Department of Justice (“Justice”) memorandum to the Office of Management and Budget's on the proposed constitution submitted by the Fifth Constitutional Convention of the U.S. Virgin Islands (“Fifth Convention”) to the President and Congress of the United States. Additionally, this memorandum serves as a response to all other memorandums and opinions that have been submitted in review of the proposed constitution. 1 This memorandum shall address the pertinent issues raised in the Justice memorandum, since the issues and opinions contained in the memorandum of the Department of Justice fairly reflects the same issues raised in the other reviews.

At the outset, it is important to note that Justice admits that its opinions are nothing more than conjecture. 2  The Justice Department did not review nor request to review any of the record or evidence gathered by the Fifth Constitutional Convention when rendering its opinions. Justice’s opinions fail to cite any evidence to support conclusions rendered in its memorandum. In fact, in addressing the provision for senate district, after it had opined on several other alleged issues, Justice states ,“since districts would be fact-specific, we [Justice] do not recommend specific … changes to the proposed constitution to address these concerns, ” (citation- on page 15 of its memorandum)The same statement should have concluded each and every issue raised by Justice since every issue raised by Justice is a fact determined issue and Justice did not review any of the facts that ere considered by the Fifth Constitutional Convention before it adopted the provisions of the proposed constitution. Throughout their memorandum, Justice renders opinions on other issues that are fact specific, but nonetheless, chose not to do so on the issue of districts.

Constitutional challenges to a specific provision of law cannot be resolved by any “litmus-paper test.” see Anderson v. Celebrezze, 460 U.S.780, 789 (1983); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). In deciding questions regarding constitutional validity, the analysis must first consider the character and magnitude of the injury to any alleged right protected by the Constitution. Id. Then, it must identify and evaluate the precise interest put forward as justification for the burden imposed by a rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.  3 The results of a constitutional review is not to be automatic. Anderson, supra at 789,

Since Justice’s opinions do not consider any evidence that lead to the provisions contained in the proposed constitution, the opinions should not be given any weight as to whether the proposed constitution contains any constitutional violations. In order to properly evaluate the basis of why certain provisions were included in the proposed constitution, the record and evidence gathered by the Fifth Convention must be examined, including the empirical and antidotal evidence considered in drafting the proposed constitution.

The Fifth Constitutional Convention’s fact gathering process included more than fifty public meetings throughout the Virgin Islands. A minimum of seventy-five to one hundred people testified at each meeting. Over fifty formal papers and documents were received and reviewed by the Fifth Convention. Additionally, the Fifth Constitutional Convention made numerous radio and television appearances during which caller comments were maintained for follow-up and consideration. Some broadcast programs were dedicated to the consideration of the proposed constitution such as the "Constitution Corner." Over one hundred internet blogs provided information to delegates of the Fifth Constitutional Convention.

Moreover, the Fifth Convention reviewed and discussed the record contained on the Fourth Constitutional Convention. Attached to this memorandum is an annex of information that lead to the provisions contained in the proposed constitution to remedy the numerous atrocities faced by the people of the US Virgin Islands. 4

Response 1-The Proposed Constitution Recognizes the Sovereignty and the Supremacy of the United States and is therefore Compliant with the Enabling Act

The Justice memorandum raises a question on whether the proposed constitution recognizes the sovereignty and the supremacy of the U.S. Constitution. Justice spent a lot of time in its analysis discussing this issue and concluded that, throughout its many provisions, the overall proposed Constitution recognizes in expressed language the sovereignty and supremacy of the United States. 5  Therefore, this memorandum accepts the ultimate conclusion reached by Justice on this issue.

Response 2- The Provisions For Ancestral & Native Virgin Islanders Are Rationally Based and have Legitimate Government Purposes and Therefore Are Constitutional

Justice believes the special designation of opportunities afforded Ancestral and Native Virgin Islanders is not rationally based, therefore, violating the Equal Protection Clause of the U.S. Constitution. In its memorandum, Justice states, “Because we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by the provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry, we recommend that those provisions be removed from the proposed constitution.” 6

Justice believes that provisions of the proposed constitution give special advantages to "Native Virgin Islanders" and "Ancestral Native Virgin Islanders." They further believe that these provisions raise serious concerns under the equal protection guarantee of the U.S. Constitution. 7

The Justice memorandum brings suspicion to the definitions of Ancestral and Native Virgin Islanders; In Article III, section 2, the proposed constitution defines "Native Virgin Islander" to mean (1) "a person born in the Virgin Islands after June 28, 1932," the enactment date of a statute generally extending United States citizenship to USVI natives residing in United States territory as of that date who were not citizens or subjects of any foreign country, see Act of June 28, 1932, ch. 283, 47 Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)); and (2) a "descendant[] of a person born in the Virgin Islands after June 28, 1932." "Ancestral Native Virgin Islander" would be defined as: (1) "a person born or domiciled in the Virgin Islands prior to and including June 28, 1932 and not a citizen of a foreign country pursuant to 8 U.S.C. [§] 1406," the statute governing United States citizenship of USVI residents and natives; (2) "descendants" of such individuals; and (3) "descendants of an Ancestral Native Virgin Islander residing outside of the U.S., its territories and possessions between January 17, 1917 and June 28, 1932, not subject to the jurisdiction of the U.S. and who are not a citizens [sic] or a subjects [sic] of any foreign country." Proposed Const. art. III, § 1.

The definitions contained in the proposed constitution should not bring any suspicion or be challenged as the improper classification of the people of the Virgin Islands since the definitions are derived directly from the Government of the United States. It was an act of Congress that differentiated the people of the Virgin Islands and conferred different legal status upon them. 8 U.S.C. §1406 provides in its pertinent parts as follows:

Section 1406. Persons living in and born in the Virgin Islands

(a) The following persons and their children born subsequent to January 17, 1917, and prior to February 25,1927, are declared to be citizens of the United States as of February 25, 1927:

“…(2) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in those islands, and were residing in those islands or in the United States or Puerto Rico on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country;

(3) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in the United States, and were residing in those islands on February 25, 1927, and who were not on February 25, 1927, citizens or subjects of any foreign country; and

(4) All natives of the Virgin Islands of the United States who, on June 28, 1932, were residing in continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or any other insular possession or territory of the United States, and who, on June 28, 1932, were not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.


(b) All persons born in the Virgin Islands of the United States on or after January 17, 1917, and prior to February 25, 1927, and subject to the jurisdiction of the United States are declared to be citizens of the United States as of February 25, 1927; and all persons born in those islands on or after February 25, 1927, and subject to the jurisdiction of the United States, are declared to be citizens of the United States at birth."

A comparison between the provisions of the proposed constitution and the provisions of 8 U.S.C. §1406 shows the same classification of people. Moreover, it was the Congress of the United States that designated some of the people of the Virgin Islands as “Natives.”

The provisions in the proposed constitution that afford certain benefits to “Natives” is consistent with and in accordance with policies, agreements and treaties executed by the Government of the United States that provides for full self-governing and the preservation of culture and the land of native people. In the Treaty of Cession between Denmark and the United States, the United States declared its responsibility to inhabitants of the Virgin Islands. 8  More directly, the United States executed a treaty with the United Nations in which the United States agreed to hold the interests of native peoples (including the Virgin Islands natives whom they clearly had singled out and defined in the 1927 and 1940 citizenship and nationality acts), as a sacred trust, to protect the culture and aspirations of Virgin Islands natives and to protect them from abuse. 9

The United States has consistently supported laws that protect and provide for the self-governing of native people. The government of the United States acquires a heightened duty of trust to native and indigenous people. Further, the United States has a duty to furnish protection to native people and the authority to fulfill its obligations. Board of County Comm'rs v. Seber, 318 U.S. 705, 716 (1943); United States v. Sandoval, 231 U.S. 28, 45-46.

In this regard, Congress has continued to accept responsibility for the welfare of natives. Congress has established special programs in areas of healthcare, education, employment and loans. Rice at 496. It has enacted laws providing for special and different treatment of Native Hawaiians, Native Alaskans, Aleutians and Native Indians. The special treatment laws have allowed for special voting privileges, special taxation, segregated property ownership and other benefits as the United States has sought to fulfill its obligations to Native people. 10

In its review of the proposed constitution, Congress can provide the U.S. Virgin Island its right to self-governing and fulfill its obligations to provide for the natives of the Virgin Islands. Congress has the authority to protect the language, culture, religion, race, community structure and politics of native people. 11

The United States is on record accepting the responsibility for the welfare of native people. In its brief in the case of Rice v Cayento, 528 U.S. 495, the Government of the United States declared that a special right to vote should be bestowed on “native” people to the exclusion of non-natives. 12

The Department of Justice has repeatedly stated that it could not discern any rational basis that would allow the provisions for Ancestral and Native Virgin Islanders to have certain special and different advantages over others of the Virgin Islands. As if it was an open and shut policy of constitutional law Justice states “we find it difficult to discern a legitimate government purpose that would rationally advance” the special provisions of the proposed constitution. 13  Contrary to the insertions of Justice the constitutionality of the special provisions is not open and shut.

Analogous to the issues raised by Justice, a Federal District Court and the Ninth Circuit Court of Appeals found and held that a voting provision of the Hawaiian Constitution to allow only “Native” Hawaiians the right to vote for trustees of Hawaiian land did not violate the Constitution of the United States. 14  However, in a 7-2 decision the Supreme Court of the United States reversed the two lower courts holding, that limiting the vote to only Native Hawaiian for the nine trustees in a statewide election to be in violation of the 14th and 15th Amendment. 15

After the review of facts and after an examination of the reasons why Hawaii sought to limit the right to vote to “Native” Hawaiians only, the Supreme Court held that the particular provision that defined “Ancestral and Native” was drawn on racial lines. The Hawaiian constitution was designed for the benefit of two subclasses of Hawaiian citizenry, “Hawaiians” and “native Hawaiians.” State law defined “native Hawaiians” as descendants of not less than one-half part of the races inhabiting the Islands before 1778 and “Hawaiians”–a larger class that includes “native Hawaiians”–as descendants of the peoples inhabiting the Hawaiian Islands in 1778. The Court stated that the provision makes it clear: “[T]he descendants ... of [the] aboriginal peoples” means “the descendants ... of the races.” 16

The proposed constitution’s provisions for Ancestral and Native Virgin Islanders are not drawn upon race. The definitions used for these classes of people are the definitions given to the people of the Virgin Islands by the Congress of the United States. Of greater importance, is the fact that the provisions contained in the proposed constitution apply equally to the different races of people that inhabit the Virgin Islands. An examination of the record discussed by the Fifth Constitutional Convention would show that at the time the United States established the “Native” designation on the people of the Virgin Islands, the population of the Virgin Islands consisted of people from Europe, Puerto Rico, Africa and other ethnically diverse populations. The record shows that the Virgin Islands still maintains this ethnically diverse population.

In Rice, Justice Stevens with whom Justice Ginsburg joined in dissent, stated that the standard of review of evaluating a question of equal protection on the question of special voting permissions is whether the special treatment is rationally tied to fulfill a unique obligation toward native people. 17 Justice Stevens stated that [Natives] Indians and other natives must show that the goal is reasonably and directly related to a legitimate nonracially based goal. 18

The record clearly shows that the proposed constitution addresses directly those rights and protections expressly offered to the native people of the Virgin Islands, but never given. Since 1917 the United States has failed to provide for the Natives of the Virgin Islands the right of self-governing, a right to property and the right to maintain its culture. The opinions contained in the Justice’s memorandum must be discounted by their own admissions/omission because they did not review any evidence that was considered by the Fifth Constitutional Convention. Therefore. all issues raised by Justice surrounding its concerns about special treatment of “Native” Virgin Islanders must be ignored. A determination of the constitutional validity of a provision must include a fact based analysis.

Response 3. The Property Tax Exemption for Ancestral Native Virgin Islanders Has a Legitimate Government Purpose and Therefore is Constitutional

Justice in its memorandum states that the property tax exemption for Ancestral Native Virgin Islanders raises serious equal protection concerns. Without examining any of the record, Justice states, “we find it difficult to discern a legitimate government purpose… advanced by providing tax exemptions only for Ancestral Native Virgin Islanders.” 19

Since 1992, the Supreme Court has recognized that a property tax exemption based on longevity of ownership can have a legitimate government purpose if the government has an interest in local neighborhood preservation, continuity and stability of life and family. See Nordlinger v. Hahn, 505 U.S. 1, 13 (1992), 112 S.Ct. 2326.

An examination of the record of the Fifth Constitutional Convention reveals numerous instances of the adverse impact suffered by Ancestral Native Virgin Islanders who have held their property for a long period of time without property tax exemption. The record contains numerous discussions and testimonials of people who would be considered Ancestral Virgin Islanders who have had lost their property due to hotel and resort development causing enormous increases in their property taxes. This occurrence has been eroding families and kinship in the Virgin Islands for many years. The Virgin Islands is rapidly losing the younger members of the families who move out of the territory for more affordable places to live. 20

The property tax exemption serves a legitimate government purpose in providing a mechanism to protect the property of the families who due to their longevity are the guardians of the life and culture of the Virgin Islands.

Response 4- The Designation of a Senator for St. Johns is Constitutional

The Justice Department has cited the designation of a senator for the Island of St. Johns as being a violation of the Fourteenth Amendment. Justice argues that in order for a legislative district to pass constitutional muster, the district must be drawn in a way to assure one man one vote or be drawn as close as possible to one man one vote. 21

Federal courts including the Supreme Court have recognized that one man one vote is not the only legitimate government purpose acceptable under the Constitution. It has been held that the principle of one man, one vote does not require exact mathematical equality in representation in the legislature; some consideration may be given by apportioning authorities to factors like geography, the integrity of subdivisions like counties, cities, or towns, and communities of interest. See Kelly v Bumpers,340 F. Supp. 568, 571 (E.D Ark 1972). The equal protection clause does not require absolute equality in the legislative districts but does require a rational basis for legislative distinctions, such as geography, economics, mass media and functional or group voting strength. See Thigpen V. Meyers, 211 F. Supp. 826 (W.D. WA).

Conclusion

As indicated in this memorandum the opinions of the Department of Justice are flawed. Justice throughout its memorandum expressed conjecture and could not properly evaluate the proposed constitution because it did not examine evidence gathered or the record of the proceedings that lead to the Fifth Constitutional Convention to set forth certain provisions in the proposed constitution. Moreover, constitutional analysis requires a case by case evaluation of the facts in order to properly measure constitutional implications. The opinions of the Justice Department regarding its review of the proposed constitution fail for these reasons.



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1. Opinions on the proposed constitution were submitted by letter of Governor John P. de Jongh, Jr., the Attorney General of the U.S. Virgin Islands and the Congressional Research Service.

2. Statements of conjecture by justice: “we find it difficult to discern..” Memorandum for the Office of Management and Budget (Justice, 2010)-page 1; “the ..constitution does not identify… and it is difficult for us to discern…,” Id at 7 ; “to the extent that those interest might be offered…,” Id at 8; “…seems difficult to justify…,” Id ; “because we find it difficult to discern…,” Id; “in absence of any identified …interest…,” Id at 10; “any challenge to USVI’s Senate districts would be fact-specific, we do not recommend specific … changes to the proposed constitution to address these concerns.” Id at 15.

3. See Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968393 U.S., at 30-31, 89 S.Ct., at 10; Bullock v. Carter, 405 U.S., at 142-143, 92 S.Ct., at 855; American Party of Texas v. White, 415 U.S. 767, 780-781, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974); Illinois Elections Bd. v. Socialist Workers Party,440 U.S. 173, 183, 99 S.Ct. 983, 989, 59 L.Ed.2d 230 (1979).

4. The annex was prepared by Delegate Gerard Emanuel. Note the summation of facts was also contained in Delegate Emanuel’s testimony before Congressional on March 17, 2010.

5. Justice concedes that the proposed constitution complies with Sovereignty and Supremacy requirement. Justice concession is derived from the following statements:” the present proposed constitution considered together bring it into substantial compliance with the Enabling Act's requirement that the proposed constitution recognize U.S. sovereignty and the supremacy of federal law.” supra Justice at 4; “The current proposed constitution's acknowledgment of the USVI's status as an "unincorporated territory of the United States" thus implies recognition of the United States' sovereignty over the USVI. Id. at 5; “The current proposed USVI constitution appears no less compliant with subsection 2(b)(1) of the Enabling Act than the constitution originally proposed in 1980, if not also the revised version of that constitution ultimately approved by Congress.” Id at 4.

6. Justice at 1.

7. Id at 6

8. Convention Between the United States and Denmark for Cession of the Danish West Indies, 39 Stat. 1706 (1916).

9. See UN Charter, Chapter 11, Article 73; See also UN Resolution 1514 and UN Resolution 35-118.

10. Id at 6; United States v. Antelope, 430 U.S. 641, 647 1977; Sandoval at 45-46; Morton v. Mancari, 417 U.S. 535, 553 (1974).

11. See U.S.Amicus.Brief,1999.at 5; Sandoval at 45-46.

12. Rice v. Cayento, U.S.Amicus.Brief,1999.at 5;

13. Justice at 8.

14. 963 F. supp 1547; 146 F.3d 1075

15. 528 U.S. 495,509, 120 S. Ct 1044, 145 L. Ed 2d 1007

16. Id at 516.

17. Id at 531.

18. Id at 538 citing Mancari, 417 U.S., at 554, 94 S.Ct. 2474.

19. Justice at 4.

20. See Annex.

21. Justice at 14.

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See also relevant articles on this issue:

US Senate to Consider Constitutional Status Legislation for Dependencies

 Legislation in US Congress Could Move Political Status of US Territories

US Virgin Islands Presents Constitution to Congress

International Dimension of a USVI Constitution