Statement of Dr. Carlyle Corbin
International Advisor on Governance
to a Briefing on of the Voting Rights in the U.S. Virgin Islands
U.S. Virgin Islands Advisory Committee
to the U.S. Commission on Civil Rights
January 23, 2023
At the outset, I wish to thank the U.S. Virgin Islands Advisory Committee to the U.S. Commission on Civil Rights for the kind invitation to participate in this discussion.
The subject at hand is the particular question of territorial voting rights in the US political system. It is evident that this a function of the general question of the overall political inequality of our unincorporated territorial status.
Following the end of WWII and the subsequent adoption of the United Nations Charter, such dependency arrangements as our own were to serve as preparatory to the full measure of self-government (Article 73) - not the embodiment of it. This may be why attempts at reforming or modernizing the territorial status through legal challenges and US Congressional legislation have not been successful to present day.
Such dependency reform measures being proposed to the territorial status, as presidential and Congressional votes, delegate representation in the US Senate, de-legitimization of the Insular Cases, et al, would provide for, at best, a position of “lesser inequality” within the US political system. Even in the unlikelihood that any of these proposed measures would be adopted, the territories would not be elevated to the full measure of self-government (FMSG) required under international law.
If the proponents of these dependency reform measures take the position that the current political status of the US territories is that of political inequality requiring remediation, then we are in agreement. Where we may differ is how to address the inequivalence. I would suggest that the inequality is best remedied through the attainment of a permanent political status through a process of self-determination where options of full political equality would be considered. Self-determination is a fundamental human right which has yet to be exercised in the US Virgin Islands or other territories.
Only last December, the UN General Assembly adopted its annual resolution on the US Virgin Islands (Resolution 77/147) which called for public education programmes in the territory “to foster an awareness among the people of their right to self-determination in conformity with the legitimate political options” providing for full political equality. As always, the US joins in the consensus on the US Virgin Islands resolution even as we await full implementation of such a programme.
Only last December, the UN General Assembly adopted its annual resolution on the US Virgin Islands (Resolution 77/147) which called for public education programmes in the territory “to foster an awareness among the people of their right to self-determination in conformity with the legitimate political options” providing for full political equality. As always, the US joins in the consensus on the US Virgin Islands resolution even as we await full implementation of such a programme.
The General Assembly also adopted last December a resolution calling for the countries which administer territories, like the US, to take all steps necessary to enable the people” of the US Virgin Islands and other territories “to exercise fully and as soon as possible their right to self-determination.” This international self-determination mandate applies directly to the US Virgin Islands even as it is not well known, and rarely referenced, or even misconstrued, in local discourse.
This mandate is codified in Article 73 of the UN Charter, in particular Article 73(b) which requires the administering Power to advance the territory to the full measure of self-government, and Chapter XI, Article 73(e) which mandates the administering Power to report to the UN annually on developments in the territory. The US, as the US Virgin Islands’ administering Power, complies with Article 73(e) by submitting information to the UN. Regarding Article 73(b) on the advancement of our territory to the full measure of self-government, the compliance is not so evident as we remain a non-self-governing territory (NSGT) under international law without full political, economic or social rights.
Territories such as Guam have taken the approach to select from one of the three options of political equality, namely US statehood, free association or independence. The adoption by the US House of Representatives of the Puerto Rico Status Act last December (2022) also endorsed these same three political status options. These political status alternatives are aligned with UN doctrine [UN Res.1541(XV)] and are cited in several White House Reports as the permanent options for Puerto Rico - and by extension, for the other US territories. Guam and Puerto Rico have followed this approach, and have removed the unincorporated territorial status from consideration because of the inherent inequalities of the status quo. Congress followed suit by consciously omitting the unincorporated territory status from the Puerto Rico Status Act.
The attainment of any of these three genuine self-governing choices would, by definition, provide for equal voting rights. Accordingly, US statehood would yield full political, economic and social rights (and responsibilities) in the US political system, and could be achieved as a stand-alone state, or also as integration into an existing state. The other options of free association or independence, respectively, would provide for full rights within the political systems created under those alternatives.
This process of self-determination is the route to address the existent political inequality of a system which has effectively reached its peak in terms of the political evolution of a polity – a system which was never meant to be permanent in any event, but rather intended to be transitional to a permanent political status. The problem comes when the temporary becomes indefinite.
Unsurprisingly, the likelihood of success in remedying the specific political inequalities and democratic deficiencies of the present territorial status through various proposed reforms remains slim. Recent efforts mirror initiatives dating back over a half-century with similar results. Neither US Court decisions nor Congressional legislative proposals have yielded outcomes favouring political rights for territories - because full political rights in the US system inhere in states. Territories are not states.
On this point, three challenges to the lack of presidential voting rights for US citizens in Puerto Rico between 1994 and 2004 were consistently denied, and determined not violative of the constitutional rights of those citizens. The consistent determination was – and remains - that such voting rights under Article 2 of the U.S. Constitution inhere not in citizens, but in states - absent the unlikelihood of a constitutional amendment as previously adopted for the District of Columbia.
An earlier 1984 ruling of the US Court of Appeals for the Ninth Circuit resulted in a similar conclusion for Guam. A 2006 case in the U.S. District Court for the US Virgin Islands, upheld by the US Third Circuit Court of Appeals, confirmed that the US Constitution does not grant the right to vote for President and Vice President to individual citizens, but to “Electors” appointed by each state.
In the 2020 analysis “America’s Territories: Equality and Autonomy,” eminent American legal scholar Howard Hills confirmed that “the U.S. Constitution itself allows fully equal representation in Congress and the Electoral College only for citizens of a state, making any remedy other than statehood less than equal” (emphasis added).
On this particular question of territorial voting rights, the late U.S. First Circuit Court of Appeals Justice Juan Toruella in 2014 referred to the inherent “state of eternal inequality” including the “political impair(ment) of the territory(ies’) representation to the US House of Representatives.”
In fact, the limitation of the territorial vote in the US House was confirmed as early as 1993 by U.S. District Court ruling which set a requirement for an automatic recount excluding the territorial representatives in the event that their votes had been “decisive.” These limitations were later reflected in a 2017 U.S. Congressional Research Service (CRS) report on the limitation of the authority of what was referred to as the “officers who represent territories and properties possessed or administered by the United States (emphasis added). Being referred to as possessed ‘properties elicits a particular reaction for a people whose ancestors suffered the crimes against humanity perpetuated under chattel slavery.
There is a larger picture. Such dependency reforms that could unilaterally alter elements of the political status of the US territories, one way or another, are being pursued without the informed consent of the people of the territories. This is especially concerning in light of the potential implications of such initiatives. One such proposed measure is illustrative. If proposed federal legislation is adopted “to reject the Insular Cases and ‘their application to all present and future cases and controversies’, the basis for unincorporated territorial status would disappear. However, the territorial clause would still remain applicable.
Would the US territories, then, become incorporated territories, by default, since the basis for unincorporated territorial status would have disappeared? Would US territories, then, be vulnerable to the application by Congress of the full corpus of the US Constitution - as has historically been the case for incorporated territories? Would this incorporation put the USTs on the road to statehood - without the formal concurrence of the people? Some analysts are asking these questions.
Specifically for the US Virgin Islands, would there be unintended political, economic and social consequences of incorporated territorial status? - Loss of Jones Act exemption? - diversion of tax revenue to Washington? - Incorporation into the US Customs zone? I would suggest that the people should be made fully aware of any such unintended consequences of these dependency reform initiatives. Ironically, the Congress can unilaterally impose such measures, and more, under the plenary authority of the territorial clause of the US Constitution. Therein lies a particular irony that such measures are being pursued without a public discussion.
Another proposed initiative affecting the US territory of American Samoa is also relevant. That territory’s political leadership continues to vehemently object to court challenges that would unilaterally confer an unwanted US citizenship on its people. Their concern is that this could have potential implications for their land rights and indigenous governance. American Samoa leaders from all political parties regard such efforts as violative of their right to self-determination since their status could be unilaterally changed by a US court decision.
Overall, the clarification should be made as to the current relationship between US territories and the US. It is often routine to refer to the USTs as part of the US, when in effect, is it more accurate to refer to the territories as being owned by the US - as the ‘territorial clause’ of the US Constitution implies? It is instructive that the application of the territorial clause refers to “territory or other property belonging to the United States” (emphasis added).
In this light, it is interesting that the French Constitution, the Netherlands Kingdom Charter, and the political and constitutional documents of other ‘democracies' (which also administer dependencies) clearly identify these respective territories by name in their governance documents. (Martinique, Guadeloupe, French Guiana, Aruba, Curacao, Sint Maarten, et al). It should speak volumes that the linkage between the US Constitution and the US territories is not by name, but rather tied to the Article of the US Constitution that deals with property.
This is our political reality reflective of an anachronistic model of dependency governance that was never meant to be permanent, but preparatory to something permanent. Yet, in the absence of public discourse, the illusion prevails that there is legitimacy in the territorial status as a permanent, democratic form of governance worthy of modernization, and that it only needs to be reformed or modernized. A sustained dialogue on these issues is required.
Perhaps a discussion on the general question of a permanent status for the US Virgin Islands might be held in future - unless the adoption of a territorial constitution through the recently-legislated Sixth Constitutional Convention would be perceived as the final step in our political evolution. It should be recognized, however, that just as a territory is not a state, a territorial constitution is not a state constitution. There is no territorial clause applicable to states.
CONCLUSION
I conclude on the particular question of the right for the people of the US Virgin Islands and other US territories to vote in the US political system. This is not a question of a denial of civil rights, but rather a symptom of a political status which was not intended to provide such rights to non-states. Again, political rights inhere in states, not citizens, as clearly set forth in the US Constitution and re-confirmed in relevant US court decisions, and consistent Congressional refusal to legislate political rights for territories in the US system.
I reiterate that full political rights can only be achieved through the evolution to a permanent political status through a process of self-determination - a fundamental human right, rather than a US civil right. This would yield a model of democratic governance devoid of the existent political, economic and social inequalities of the status of “territory or other property belonging to the United States.”
This mandate is codified in Article 73 of the UN Charter, in particular Article 73(b) which requires the administering Power to advance the territory to the full measure of self-government, and Chapter XI, Article 73(e) which mandates the administering Power to report to the UN annually on developments in the territory. The US, as the US Virgin Islands’ administering Power, complies with Article 73(e) by submitting information to the UN. Regarding Article 73(b) on the advancement of our territory to the full measure of self-government, the compliance is not so evident as we remain a non-self-governing territory (NSGT) under international law without full political, economic or social rights.
Territories such as Guam have taken the approach to select from one of the three options of political equality, namely US statehood, free association or independence. The adoption by the US House of Representatives of the Puerto Rico Status Act last December (2022) also endorsed these same three political status options. These political status alternatives are aligned with UN doctrine [UN Res.1541(XV)] and are cited in several White House Reports as the permanent options for Puerto Rico - and by extension, for the other US territories. Guam and Puerto Rico have followed this approach, and have removed the unincorporated territorial status from consideration because of the inherent inequalities of the status quo. Congress followed suit by consciously omitting the unincorporated territory status from the Puerto Rico Status Act.
The attainment of any of these three genuine self-governing choices would, by definition, provide for equal voting rights. Accordingly, US statehood would yield full political, economic and social rights (and responsibilities) in the US political system, and could be achieved as a stand-alone state, or also as integration into an existing state. The other options of free association or independence, respectively, would provide for full rights within the political systems created under those alternatives.
This process of self-determination is the route to address the existent political inequality of a system which has effectively reached its peak in terms of the political evolution of a polity – a system which was never meant to be permanent in any event, but rather intended to be transitional to a permanent political status. The problem comes when the temporary becomes indefinite.
Unsurprisingly, the likelihood of success in remedying the specific political inequalities and democratic deficiencies of the present territorial status through various proposed reforms remains slim. Recent efforts mirror initiatives dating back over a half-century with similar results. Neither US Court decisions nor Congressional legislative proposals have yielded outcomes favouring political rights for territories - because full political rights in the US system inhere in states. Territories are not states.
On this point, three challenges to the lack of presidential voting rights for US citizens in Puerto Rico between 1994 and 2004 were consistently denied, and determined not violative of the constitutional rights of those citizens. The consistent determination was – and remains - that such voting rights under Article 2 of the U.S. Constitution inhere not in citizens, but in states - absent the unlikelihood of a constitutional amendment as previously adopted for the District of Columbia.
An earlier 1984 ruling of the US Court of Appeals for the Ninth Circuit resulted in a similar conclusion for Guam. A 2006 case in the U.S. District Court for the US Virgin Islands, upheld by the US Third Circuit Court of Appeals, confirmed that the US Constitution does not grant the right to vote for President and Vice President to individual citizens, but to “Electors” appointed by each state.
In the 2020 analysis “America’s Territories: Equality and Autonomy,” eminent American legal scholar Howard Hills confirmed that “the U.S. Constitution itself allows fully equal representation in Congress and the Electoral College only for citizens of a state, making any remedy other than statehood less than equal” (emphasis added).
On this particular question of territorial voting rights, the late U.S. First Circuit Court of Appeals Justice Juan Toruella in 2014 referred to the inherent “state of eternal inequality” including the “political impair(ment) of the territory(ies’) representation to the US House of Representatives.”
In fact, the limitation of the territorial vote in the US House was confirmed as early as 1993 by U.S. District Court ruling which set a requirement for an automatic recount excluding the territorial representatives in the event that their votes had been “decisive.” These limitations were later reflected in a 2017 U.S. Congressional Research Service (CRS) report on the limitation of the authority of what was referred to as the “officers who represent territories and properties possessed or administered by the United States (emphasis added). Being referred to as possessed ‘properties elicits a particular reaction for a people whose ancestors suffered the crimes against humanity perpetuated under chattel slavery.
There is a larger picture. Such dependency reforms that could unilaterally alter elements of the political status of the US territories, one way or another, are being pursued without the informed consent of the people of the territories. This is especially concerning in light of the potential implications of such initiatives. One such proposed measure is illustrative. If proposed federal legislation is adopted “to reject the Insular Cases and ‘their application to all present and future cases and controversies’, the basis for unincorporated territorial status would disappear. However, the territorial clause would still remain applicable.
Would the US territories, then, become incorporated territories, by default, since the basis for unincorporated territorial status would have disappeared? Would US territories, then, be vulnerable to the application by Congress of the full corpus of the US Constitution - as has historically been the case for incorporated territories? Would this incorporation put the USTs on the road to statehood - without the formal concurrence of the people? Some analysts are asking these questions.
Specifically for the US Virgin Islands, would there be unintended political, economic and social consequences of incorporated territorial status? - Loss of Jones Act exemption? - diversion of tax revenue to Washington? - Incorporation into the US Customs zone? I would suggest that the people should be made fully aware of any such unintended consequences of these dependency reform initiatives. Ironically, the Congress can unilaterally impose such measures, and more, under the plenary authority of the territorial clause of the US Constitution. Therein lies a particular irony that such measures are being pursued without a public discussion.
Another proposed initiative affecting the US territory of American Samoa is also relevant. That territory’s political leadership continues to vehemently object to court challenges that would unilaterally confer an unwanted US citizenship on its people. Their concern is that this could have potential implications for their land rights and indigenous governance. American Samoa leaders from all political parties regard such efforts as violative of their right to self-determination since their status could be unilaterally changed by a US court decision.
Overall, the clarification should be made as to the current relationship between US territories and the US. It is often routine to refer to the USTs as part of the US, when in effect, is it more accurate to refer to the territories as being owned by the US - as the ‘territorial clause’ of the US Constitution implies? It is instructive that the application of the territorial clause refers to “territory or other property belonging to the United States” (emphasis added).
In this light, it is interesting that the French Constitution, the Netherlands Kingdom Charter, and the political and constitutional documents of other ‘democracies' (which also administer dependencies) clearly identify these respective territories by name in their governance documents. (Martinique, Guadeloupe, French Guiana, Aruba, Curacao, Sint Maarten, et al). It should speak volumes that the linkage between the US Constitution and the US territories is not by name, but rather tied to the Article of the US Constitution that deals with property.
This is our political reality reflective of an anachronistic model of dependency governance that was never meant to be permanent, but preparatory to something permanent. Yet, in the absence of public discourse, the illusion prevails that there is legitimacy in the territorial status as a permanent, democratic form of governance worthy of modernization, and that it only needs to be reformed or modernized. A sustained dialogue on these issues is required.
Perhaps a discussion on the general question of a permanent status for the US Virgin Islands might be held in future - unless the adoption of a territorial constitution through the recently-legislated Sixth Constitutional Convention would be perceived as the final step in our political evolution. It should be recognized, however, that just as a territory is not a state, a territorial constitution is not a state constitution. There is no territorial clause applicable to states.
CONCLUSION
I conclude on the particular question of the right for the people of the US Virgin Islands and other US territories to vote in the US political system. This is not a question of a denial of civil rights, but rather a symptom of a political status which was not intended to provide such rights to non-states. Again, political rights inhere in states, not citizens, as clearly set forth in the US Constitution and re-confirmed in relevant US court decisions, and consistent Congressional refusal to legislate political rights for territories in the US system.
I reiterate that full political rights can only be achieved through the evolution to a permanent political status through a process of self-determination - a fundamental human right, rather than a US civil right. This would yield a model of democratic governance devoid of the existent political, economic and social inequalities of the status of “territory or other property belonging to the United States.”
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