24 July 2011

United States Dependencies in the 21st Century


by Carlyle G. Corbin

Dr. Corbin is an international advisor on governance and former Minister for External Affairs of the US Virgin Islands Government. He has served as United Nations advisor on political and constitutional development, and is the author of three books. He lectures extensively on the self-determination process in Caribbean and Pacific small island territories.

In recent years, varying degrees of interest have been expressed in the five United States (U.S.) territories in modernizing their present dependency political status arrangements. To this end, territories have undertaken a number of initiatives to advance toward a full measure of self-government.

In American Samoa, an extensive review of political status options was conducted by the territory’s Future Political Status Study Commission with recommendations contained in its report published in 2007. This was the territory’s third and most comprehensive analysis on political status-related issues. In 2010, the territory convened a constitutional convention which proposed more authority for the elected government. While neither initiative resulted in immediate political change, interest in political status modernization remains as expressed by the territory’s representative to the May 2011 United Nations Decolonization Seminar.

In Puerto Rico, the three main political parties which favor different political alternatives have continued efforts at bringing closure to the commonwealth’s longstanding political status dilemma referenced in the 2011 Obama Administration White House Report on Puerto Rico. The report provided much-needed clarity on the primacy of the territorial clause of the U.S. Constitution under the commonwealth status with implications on the political future of the other U.S. territories as well. The Obama Report followed on from U.S. House of Representatives passage of legislation in 2010 authorizing a political status referendum - legislation which stalled in the U.S. Senate. The present Puerto Rico government which favors political integration with the U.S. is now organizing a referendum in 2011 carefully crafted in favor of the statehood option, even as the more balanced approach of a constituent assembly is favored widely.

The other U.S. territory in the Caribbean, the U.S. Virgin Islands, proposed significant revisions to its present political arrangement with the drafting of a constitution adopted by its (fifth) constitutional convention in 2010. The proposal would expand some of the parameters of the prevailing territorial status - changes opposed by the territory’s elected governor. The U.S. Congress and the Justice Department raised certain concerns with the proposal, recommending that revision of some of its provisions in line with the existing limitations on autonomous powers of a territory. Unfortunately, the process has been stalled since 2010 due to the unavailability of territorial or U.S. financial assistance for the convention to resume its work. The broader issue of self-determination and political status evolution for the U.S. Virgin Islands – not discussed since an inconclusive 1993 referendum – would only be pursued following resolution of the dormant internal constitutional process.

Unlike the US Virgin Islands in the Caribbean, the territory of Guam has decided to re-start its self-determination process with preparations underway to implement existing legislation for a political status referendum on the options of political equality, specifically, statehood (integration), free association and independence. This comes over a decade after U.S. rejection of an autonomous commonwealth status in the early 1990s. Guam is experiencing a renewed sense of urgency to address the issue given the impending military build-up and its attendant political, socio-cultural, economic, environmental and other implications. Political evolution in Guam – as in any of the other territories - is a natural step which can be enhanced through increased public awareness of the current political status, and a thorough understanding of the fully self-governing political alternatives.

While this process continues to evolve in Guam, increased attention is being paid in its neighbor, the Northern Mariana Islands, to the impact of unilateral adjustments made through U.S. legislation to the territory’s commonwealth status. This action resulted in application of U.S. labor and immigration laws not specifically included in the original Commonwealth Covenant agreed between the territory and the United States. The territorial government challenged this action in U.S. court on the basis that such unilateral authority was inconsistent with the autonomous relationship set forth in the Covenant. However, the court ruling affirmed U.S. Congressional power to apply U.S. laws to the commonwealth by citing the primacy of the territorial clause of the U.S. Constitution in the governance of U.S. dependency arrangements. This decision served to further clarify Washington’s evolving interpretation of the limitations of the territorial/commonwealth models. Legislation to review the present status and to examine other political alternatives is currently under consideration but has not yet achieved sufficient political support for the measure to be adopted.

Amidst this mood of reassessment, legislation has also been introduced in Guam and the
Northern Marianas to determine the views of the people on possible re-unification of the two territories. This discussion could serve to stimulate increased functional collaboration such as that existing between American Samoa and independent Samoa, and between neighboring British and U.S. Virgin Islands in the Caribbean. Such cooperation between Guam and the Northern Mariana Islands may already exist, but if not, could be useful in building further confidence while various forms of re-unification are explored in depth. Overall, the modernization of the respective political status arrangements, and the examination of ways to collaborate more closely, are signs that the two territories see value in working closer together in addressing future political and economic challenges.

In the particular case of Guam, public discourse ahead of the resumption of a self-determination process has invariably led to the expression of views from a variety of perspectives on a number issues, including the relevancy of international law and its relationship to U.S. domestic law, voter eligibility, and the nature of self-government under various political options. These and other issues will, no doubt, be examined as the process of public education intensifies. Thus, the dialogue on modernization of the current political status arrangement requires careful and measured assessment to examine the implications of change, as well as the ramifications of remaining the same.

The emerging public discourse can often result in different interpretations of the political reality including the recognition of a democratic deficit in the political status arrangements of the U.S. territories and commonwealths. A few have even argued that these political arrangements, deemed so deficient, were the only achievable aspiration. Such a suggestion that the people of the territories should be content with a status of political inequality that is less than fully self-governing is rather unsettling.

Another notable interpretation in the public discourse relates to the international obligations of the United States in the self-determination process of the U.S. territories. The role of international law can be misunderstood, and is often mis-characterized. This contributes to a lack of clarity. In fact, the U.S. has clear international legal obligations under the United Nations Charter, the International Covenant on Civil and Political Rights and other international conventions relevant to self-determination. The U.S. fully recognizes these obligations, and has never renounced them. These principles cannot be simply set aside. The decision of the Obama Administration to sign on to the Declaration on the Rights of Indigenous Peoples is an illustration of U.S. recognition of international principles reflecting the collective will of the nations of the world in the promotion of human rights.

These principles apply not only to Asia, the Middle East, or elsewhere. They also apply to territories which have not yet reached a full measure of self-government. It is without question that international law and principles apply to the U.S. territories, just as it does to territories under British, French or New Zealand administration. The challenge is how best to specifically apply these standards to achieve full self-government and political equality for the people of the territories. A thorough examination of the international process, with its admitted challenges and complexities, is highly useful in any public education exercise on self-determination. The participation of the people of the territories in the international process, including the U.N. Decolonization Committee, broadens perspective, and provides important insight on how these issues are addressed globally. It is a case of “the more information, the better,” as this heightens the awareness of the people about the political options available to them.

Of course, there are occasions where international principles and U.S. policy do not exactly coincide. One example lies in defining the three internationally recognized options of political equality, namely independence, free association and integration. There are no specific international definitions for these self-governing options, in the interest of flexibility. Rather, a set of minimum standards is established in determining whether a particular political status has met the test of self-governance sufficiency. Thus, the standard for political integration, or statehood in the case of the U.S. territories, must be on the basis of complete political equality. Anything short does not meet the test. Nor should it. In this case, U.S. policy is consistent with international principles, requiring the attainment of full political rights and obligations. This is reflected in the Obama Administration 2011 Report, as well as in the 2005 and 2007 Bush Administration reports on the issue.

Where there is a perceived divergence from international standards is on the option of free association. International principles regard this alternative as a stand-alone status emerging from negotiations and mutual agreement between the parties. A number of free association models have developed within this broad framework including the Federated States of Micronesia, Marshall Islands and Palau, all of which enjoy a specific form of free association with the U.S. emerging from the post-World World War II United Nations trusteeship mandate. The 2011 White House Report regards this model as a ‘type of independence.’ However, other association models evolving from a specific set of circumstances are equally as valid.

What emerged from the former U.N. trust territories may not be what would emerge from other territorial situations. Greenland with respect to Denmark, and the Cook Islands and Niue with New Zealand, are but a few examples of creative autonomous arrangements recognized under international principles as providing for a full measure of self-government. The precision of these and other such autonomous governance models has been carefully negotiated to address the unique circumstances of each former territory which has evolved from differing political and constitutional circumstances to become fully self-governing in association with a larger country. The same should apply to any future association arrangements into which U.S. territories might emerge.

In the U.S. context, the concept of political association emanated from the experience of Puerto Rico with the establishment of its commonwealth status in 1952. This was an early benchmark for autonomous governance, especially for U.S. territories. The originators of the Puerto Rico commonwealth confirmed that the status was never meant to be permanent, but that it had to continually evolve if it was to keep pace with the requirements of democracy. Accordingly, numerous proposals to enhance the commonwealth status of Puerto Rico were developed since then to address the need for continual modernization, testing the limits of autonomy possible in a commonwealth status. A review of these proposals over time has revealed that limitations of autonomy under territorial or commonwealth arrangements are subject to changing political interpretations depending on factors such as the disposition of U.S. Congressional committees or the influence of Washington lobbyists whose job it is to advance the interests of their clients who support a particular political option. This often results in the unhelpful denigration of a particular option, for the sake of promoting another.

Contemporary interpretations of the extent of autonomy which can be exercised under the commonwealth status were discussed in the three White House reports, suggesting more limited powers than what might have been originally assumed in the past. As it has turned out, autonomous powers earlier delegated to a territory are reversible because of the primacy of the territorial clause of the U.S. Constitution giving unilateral decision-making power to the U.S. Congress. This was the experience of the Northern Mariana Islands with significant effect to their economic stability. The U.S. General Accountability Office report released in June, 2011 confirms the effect of applying federal wage laws to American Samoa and the Northern Marianas.

The disposition of the Guam commonwealth proposal of the early 1990s signaled the emergence of a narrower perspective on the level of autonomy obtainable under a commonwealth arrangement. At that time, the federal executive appeared to initially concur with the delegation of certain powers to the elected government. However, the federal position stiffened during Congressional review, and the Guam commonwealth proposal stalled in Congressional committee.

Given the fundamental question of the political sustainability of the commonwealth status, the option of free association has been recognized in recent years as a logical and realistic next step which would provide for predictable autonomous governance without any surprises. This compares to the unpredictability stemming from the unilateral applicability of (U.S.) federal laws or regulations which can upset the best of economic planning. Such unilateral federal authority should only apply if full political rights and equal political power in the U.S. system are extended, i.e. through U.S. statehood. Unilateral authority without equal political power is un-balanced. Of course, statehood or other recognized political options would come with requisite financial and other responsibilities which should be examined carefully. But unlike the commonwealth status, unilateral authority does not apply under a free association arrangement where autonomous powers cannot be unilaterally reversed. It is a modernized arrangement which is the result of an agreement between the two parties.

A most recent association model has been proposed in a draft compact of association developed in 2010 by autonomist leaders in Puerto Rico who concluded that the parameters of the status quo no longer provided the tools necessary for economic sustainability in a globalized world. The proposal was formulated, therefore, as a logical step forward to modernize the existing commonwealth status which has served Puerto Rico since 1952. The proposed model of association is intended to be ‘non-colonial and non-territorial in nature’ with the division of powers between the U.S. and Puerto Rico governments fully spelled out, enforceable by agreement and without any residual federal authority. This does not mean that there is no U.S. involvement built into the proposal, but its nature and extent are determined by agreement, with dispute mechanisms available in case of differences in interpretation.

The option of free association is not limited to a ‘form of independence,’ as has been suggested. Rather, it emerged from an understanding of the value of autonomous governance and true partnership between parties. It is a natural progression from the unilateralism of territory/commonwealth status to one which provides for full self-government. This can also be attained through statehood or independence. The common thread among these three options is that of political equality. A so-called ‘fourth option’ sometimes suggested, with continued or reformed political inequality, is neither permanent, sustainable, nor desirable if complete democratic governance is what is being sought. Political equality is the guiding principle. Democratic governance requires no less.

The political status referendum being pursued in Guam is properly based on what the White House and the United Nations recognize as the three permanent options which provide for full political equality, and which do not contain a residual unilateral power to negate the essence of what might have been earlier agreed. In practical terms, the substantive issues between U.S. territories and the federal government, including the ever important geo-strategic considerations, can be better accommodated through mutual agreements under an autonomous association, through political integration (statehood) where there is equal political power in the U.S. system, or through independence by way of international treaty. These are the 21st century solutions to the dependency dilemma.

Territories may reach this determination at different times in their political and constitutional evolution. But if they remain in the status quo – even a reformed version - it should be understood that they have not achieved full self-government which comes by way of a permanent option. Sustained public education on these issues, in the fullest of dimensions, will enhance the chances that the people of the U.S. territories will make an informed decision on a political future based on equal rights, justice and true democracy. The people of the territories deserve – and should expect – no less.

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