26 March 2010

Legislation in US Congress Could Move Political Status of US Territories

A number of legislative measures have been introduced in the U.S. House of Representatives which could affect the political status of the U.S. territories. These measures include a bill to fund educational programs on political status options in American Samoa, Guam and the US Virgin Islands. This proposal has already been adopted by the US House of Representatives and has been submitted to the US Senate for consideration.

A companion measure aimed specifically at Puerto Rico is set for a vote in the U.S. House of Representatives. This legislation would authorise a federally-sanctioned self-determination process for the people of Puerto Rico leading to a referendum on temporarily retaining the status quo, or selecting one of the permanent status options of independence, free association or integration.

Another proposal, which has routinely been introduced in various forms over the last three decades would extend the vote for the US president to the territories. The latest proposal would take the form of a constitutional amendment similar to that previously extended to the District of Columbia. Legislation to examine potential modalities for greater territorial representation in the U.S. House of Representatives has also been introduced.

Major principles of the measures are as follows:

The Guam/American Samoa/US Virgin Islands bill, as amended, would provide for pubic education programmes on political status options in the three territories. The options would “include but not (be) limited to internationally-recognised options of independence, integration and free association." It also implies that other options – undefined in the bill – would also be the subject of the educational programme (which could impact the effectiveness of the political education).

The bill confirms the statutory responsibility of the US Department of Interior to assist the territories in public education, but does not make reference to any referendum (this could come later under the 1979 Carter Adm. mandate to deal with political status that is still in effect). 

By contrast, the Puerto Rico legislation creates a two-step referendum process. The first step would have people vote in favour or against retaining the status quo. If the people choose to remain the same, then they would have to be consulted again in about eight years since the status is not considered as permanent.  Under the bill, if the people of Puerto Rico choose to change the status in the first round of voting, then they vote again shortly thereafter with the choices being the three internationally-recognised options (integration, free association and independence).

Neither  proposed measures provide for new budget authority. For the legislation aimed at the three territories of American Samoa, Guam and the US Virgin Islands, the US Congressional Budget Office estimated the cost at about $2 million during the period 2010-2014 (presumably from the existing Interior Dept. budget).

On the other hand, the Puerto Rico bill makes it clear that the referendum activities would be funded from Puerto Rico Government resources. The Puerto Rico bill does not address educational costs. In Puerto Rico, political education is usually carried out by the respective political parties. None of the other three territories have such experience of political party advocacy for a political status preference.

The three - territories bill was originally introduced by the Delegate of Guam for Guam-only, and was later amended to include American Samoa and the US Virgin Islands. The House Report on the measure (111-357), in the section on “Background and Need for Legislation,” makes specific reference to the relevancy of international law including the United Nations Charter as the basis for the self-determination process. The House Report also makes reference to the “limited form of self-government in the territories under the Territorial Clause."

The Guam Delegate to Congress made reference in her formal statement to the House Natural Resources Committee hearings to the international obligation under the United Nations Charter "to develop self-government” in the territories, and acknowledged that the three territories are on the UN list of NSGTs.

In a similar way, the Puerto Rico measure also refers to the limits of Puerto Rico authority under the Territorial Clause. In the “Background and Need” Section of the House Report on the Puerto Rico legislation the issue of voter eligibility is addressed by explaining that the legislation can permit Puerto Ricans born in Puerto Rico but residing outside of Puerto Rico to participate in the referendum.

The two measures appear to be moving along separately, and appear to be regarded as entirely separate matters, even as they go through the same committees, albeit at different times. It will ultimately be up to the Senate as to whether either or both of the bills will pass.

Several other measures have been introduced in the House which would have the effect of modifying the political status of a number of the US - administered territories. These bills are essentially focused on achieving more political involvement in the US political system under the present status. One would be acieved by  amending the US Code so as to enable presidential voting rights for territories, whilst the second bill would study the possibilities of greater representation in the House for the non-voting delegates to Congress from these territories.

The presidential vote measure has been introduced in various forms dating back to the tenure of Virgin Islands Delegate to Congress Ron de Lugo.  More recently, various strategies have been employed to gain a vote for the territorial delegates in the House (Guam Legislature in 2009 passed a resolution requesting a vote on matters strictly related to the militarisation of the territory).

Fundamental Questions

A number of fundamental questions have been raised in relation to the self-determination legislation:

On the bills aimed at a self-determination process, the Puerto Rico measure"cuts to the chase" and provides for a referendum on the clear options recognised by international law, whilst also providing a temporary alternative to remain in the dependency status.

Meanwhile, the measure for American Samoa, Guam and the US Virgin Islands has no referendum component, and is also not as specific on the definitions of the options. The measure could be improved by borrowing from the Puerto Rico measure, and would also be consistent with the draft US Virgin Islands proposed constitution which contains a section on a political status mechanism on the three permanent options.

The measures aimed at more political participation of the territories in the US system also raise some issues:

Could more territorial participation in the US political system affect the financial relationship, specifically the balance of taxation and representation? In other words, could a vote in the U.S. House reduce the ability of the territory to retain excise and income taxes?

Also, would this increased participation in the US political system constitute a fundamental change in the political status of the territory, moving towards a form of ‘partial integration.’? If so, should the people be given the opportunity to decide on this in a referendum knowing the implications of such changes?

And finally, what would be the impact of a move toward a ‘partial integration’ before the people determine their political future. If they chose an autonomous status, would the increased participation be reversed?
As the proposals introduced in 2009 wind their way through the US Congress in 2010, it is hoped that further clarity would be forthcoming.