United States Dependencies in the 21st Century

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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.

Analysis of 1998 US House Vote on Puerto Rico Status Legislation

As the U.S. House of Representatives proceeds to take up H.R. 2499 to facilitate a referendum process on political status alternatives for Puerto Rico, the issues under intense discussion in 2010 are strikingly similar to those discussed during the last time the U.S. House voted on similar legislation, in 1998. An analysis on the earlier Congressional vote was published in the March 1998 edition of the journal Associate (the predecessor publication to Overseas Territories Review. The 1998 Associate article provided significant insight into many of the same issues which are being debated in relation to the present legislation, and is reprinted below, for comparison purposes.


Puerto Rico Political Referendum Legislation Narrowly Endorsed by US House of Representatives

Associate (Vol. 1 No. 4)
March 1998
Washington, D.C.

Supporters of full integration for Puerto Rico into the United States (U.S.) as the 51st state of the union were given a boost on 4th March (1998) as the U.S. House of Representatives approved by the narrowest of margins legislation that would provide for a U.S. Congressionally-recognized referendum election by the end of 1998 on three political status options. This major development is occurring 100 years following the U.S. takeover of the island from Spanish rule - some say, from the Puerto Ricans themselves who had declared unilateral independence from Spain prior to the arrival of American troops.

According to a 1997 U.S. General Accounting Office (GAO) Report on U.S. Insular Areas, the bill "would establish a three stage process for enhancing self-government in Puerto Rico" with the first stage being a (non-binding) referendum to be held no later than 31st December 1998 on the political options of commonwealth (status quo), separate sovereignty (independence or free association), and statehood (integration).

If the referendum choice is either integration or separate sovereignty, the legislation calls for the development by the U.S. President of a ten-year transition plan to be submitted to the Puerto Rico electorate for approval in another referendum. "Assuming the plan was approved, the final stage would begin with the President's submission to the (U.S.) Congress of proposed legislation to implement the form of self-government consistent with Puerto Rico's choice including a proposed date for implementation," according to the report, and "if this is enacted by the Congress, it would be presented to Puerto Rican voters for approval by (another) referendum."

If the commonwealth option is chosen, the status quo continues and another referendum would be held within the subsequent ten year period.

On a vote of 209 to 208 following a marathon session that went well into the night, the full House of Representatives endorsed the United States-Puerto Rico Political Status Act authorizing the people of the commonwealth/territory of 3.8 million people to choose between the three options. The legislation was introduced in response to a local referendum held in Puerto Rico in 1993 in which the commonwealth option garnered a plurality of some 48.4 per cent.

This marked the first time that the political status under which Puerto Rico was being governed was not favoured by the majority of the population. But as it was noted in the debate by Representative George Miller of California, the political parties in the territory had written the definitions of the individual status options presented in the 1993 plebescite, and the Congress had not responded because it felt that the definitions "were not accurate and would not be supported by the Congress... and did not reflect the laws and the Constitution (of the United States)."

Subsequently a series of Congressional hearings were held in Washington and in Puerto Rico in 1995, resulting in 1996 legislation authorizing a Congressionally sanctioned referendum, rather than a local process.

This legislation was approved in the House Resources Committee, but not taken up by the full House. The present legislation had been introduced in February, 1997 with the definitions of the options ultimately written by the U.S. Congress, following proposals sent by the Puerto Rico political parties.

The House bill will now be considered by the U.S. Senate where similar legislation has been introduced in 1997, but where no action has yet been taken. The measure was fully supported by the island's pro-integrationist New Progressive Party which controls the governorship, the non-voting resident commissionership to the U.S. House, and both houses of the Puerto Rico Legislative Assembly. The measure also has the support of President Bill Clinton who commented that the vote "was a victory for democracy and against exclusion."

In a February address to the Democratic Governors Association dinner in Washington, Clinton said that "...it is time that we respond to the aspirations of the 4 million (Puerto Ricans)...and allow them to determine their ultimate political status."[Puerto Rico Governor Pedro Rossello had previously been elected as Chairman of the Democratic Governors' Association, of the Council of State Governments, and of the Southern Governors' Association in a well planned strategy to position Puerto Rico as a de facto state. This had a significant impact on the favourable vote by Democratic Party representatives on the measure on the House floor].

While not endorsing a particular political option, Clinton disagreed with "some people who question the alternative of statehood (integration) because of the Hispanic culture of Puerto Rico," and emphasized that the "ethnic, racial or religious heritage" of the people should not be used as an impediment to their political aspirations.


The Ethnic Question
 
President Clinton's reference to ethnicity was made undoubtedly in response to strong support for an amendment offered by Representative Gerald Soloman, Republican from New York. That amendment would have mandated English as the official language in government business and in schools in any U.S. state, including Puerto Rico, if it was successful in changing to that status. Some like Cuauhtemoc Figueora, Director of Policy and Communications for the (U.S.) League of Latin American Citizens felt that it was unfair to use the Puerto Rico issue as the vehicle for the English only movement, since such a requirement does not presently exist for other U.S. states (although some 23 of the 50 have voluntarily adopted English as their official language). Conversely, Chairman of the Board of U.S. English, Mauro E. Mujica, noted that his organization was in favour of the Soloman "English only" amendment and expressed the "concern about creating our own Quebec." He went on to note that "after 100 years of association with (the United States), 75 per cent of Puerto Ricans do not speak English and 70 per cent think of themselves as Puerto Ricans and not Americans." He indicated that he was "concerned about creating a state...where only a slight majority (supported that option) and the minority begins to create trouble." He went on to emphasize that "we don't want a secessionist group created in Puerto Rico." The legislation calls for a simple majority of the Puerto Rican voters for the winning option.
 
In the end, the "Soloman amendment" was rejected by a vote of 370 to 41 , and a "softer"substitute amendment on the language issue was introduced by Republican Dan Burton, and subsequently adopted by the House by a margin of 238 to 182. The new language would provide, in the event of Puerto Rican statehood, that the official language requirements of the U.S. government would apply to the new state "in the same manner and to the same extent as throughout the United States," and called for the promotion of English proficiency in the public schools by the age of 10. A second amendment that would have permitted Puerto Ricans living outside the island to vote in the referendum was also rejected overwhelmingly, bringing into question whether the vote would be considered a true "act of self-determination" consistent with internationally recognized referenda held or planned in other territories, such as Namibia or Western Sahara.
 
As in the case of the local referendum held in the U.S. Virgin Islands in 1993, and its excessive number of political status choices (based on perceived U.S. Congressional considerations), it was clear that consistency with international principles on self-determination does not always figure significantly in resolving the constitutional dilemmas in U.S. territories. Another such example is the refusal to accommodate the rights of the indigenous people in the self-determination process of that U.S. Pacific territory of Guam serving as a reminder of the constraints that emerge when provisions of the U.S. Constitution are unilaterally applied to non-integrated, or un-incorporated, territories in a manner as if they were integrated states. The Commonwealth of the Northern Mariana Islands which developed from the United Nations Trust Territory of the Pacific Islands was the only U.S. territory that seemed to have negotiated a sufficiently autonomous arrangement, but as it turns out, the U.S. Congress and executive branch are re-interpreting important provisions of the U.S. - Marianas pact leading to more "federal" control.

Unlikely Political Alliances
 
The legislation is considered one of the most controversial measures debated by the full House of Representatives in recent years. Representative Soloman in remarks in the general debate commented that both the American and Puerto Rican people are at odds over the matter, and that "members of the House (of Representatives) are divided on this issue, and not necessarily by party." The Puerto Rican politicians themselves were not unified - consistent with the differing views on the island - with supporters of the bill being led on the House floor, in part, by Puerto Rico's non-voting Resident Commissioner Carlos Romero Barcelo, while opponents of the measure were led by (Democrat) Chicago-based Puerto Rican Congressman Luis Gutierrez.
 
Much of the Republican leadership including the Speaker of the House Newt Gingrich endorsed the bill, and it was reported that Republicans were asked to support it as one of a number of actions they should take to gain Hispanic votes in the coming U.S. Congressional elections, consistent with an analysis produced by Republican pollster Frank Luntz. Many Republicans as well as Democrats seemed convinced, however, that the bill was drafted in such a way as to favour the political integration option in a referendum, and many simply were not ready for that now, if ever. This conclusion was reached since the bill defined the status quo option as a territory that should be decolonized pursuant to the United Nations International Decade for the Eradication of Colonialism, according to the House Committee Report accompanying the bill.
 
Such a portrayal of the political status under which Puerto Rico had been governed since 1952 was strongly opposed by the pro-commonwealth Popular Democratic Party (PDP) who perceived the commonwealth arrangement as a de facto associated state, governed not by the territorial clause of the U.S. constitution, but rather, by a bilateral pact. PDP President Acevedo Vila had earlier contended in March, 1997 hearings before the House Resources Committee that "the assumption made in the bill that it is not possible to have a non-colonial bilateral relationship, based on mutual consent with American citizenship as a bond between Puerto Rico and the United States is against history (and) legal precedents," and noted that previous legislation introduced in the House on Puerto Rico had recognized the bi-lateral nature of the U.S. - Puerto Rico relationship. Acevedo Vila has termed the present bill "unacceptable," and argued that it "reneges on the word of the United States given to the people of Puerto Rico and to the world in 1953," in reference to statements to the United Nations by the United States delegation that the attainment of commonwealth by Puerto Rico was a form of association with sufficient autonomy that it no longer required oversight by the U.N.
 
The General Assembly later that year agreed to remove Puerto Rico from the U.N. list of non-self-governing territories (via Resolution 748), although the current arrangement does not meet the standard of a "full measure of self-government" approved by the U.N. in 1960. In what many describe as a classic political contradiction, subsequent efforts to have Puerto Rico re-inscribed on the U.N. list for more than three and one-half decades have been met by steadfast resistance on the part of the U.S. State Department which does not hide its disdain for the U.N. committee that oversees the self-determination process of the remaining non-self-governing territories, mostly in the Caribbean and Pacific.[ The U.S. delegation to the U.N. has been quite successful in recent years in convincing other member countries to approve reductions in the resources appropriated to the U.N. committee from the U.N. budget, and actively seeks the committee's abolishment on the premise that the remaining non-self-governing territories are, in fact, self-governing after all, regardless of whether any changes have been made to upgrade their political status arrangement. This proposition, of course, is diametrically opposed to the position just approved by the U.S. House of Representatives in the Puerto Rico legislation that defines the island as a colony. This 'two Puerto Rico,' as in 'two China' policy, finds Puerto Rico to be a colony in the U.S. Congress, but self-governing at the U.N. ]

The Popular Democratic Party itself had been divided over whether the commonwealth status is an associated territory, as insisted upon by the party leadership, or a colony, as seen by a growing segment of the party. Advocates within the party for a true form of free association argued for their option to replace the "colonial commonwealth " definition. They did not succeed within the party, but independent groups like the Puerto Rico Organization for Free Association (PROELA), the Puerto Rican Autonomist Commission and the Puerto Rico Democratic Action Foundation worked in favour of the inclusion of the free association option, both on the island and in Washington.

The Cost of Statehood

The issue of the projected cost of statehood was another factor in the debate. It was argued by opponents of the bill that if statehood was ultimately granted, it would cost the U.S. treasury over US3 billion in increased welfare benefits as well as the expansion of other social programmes and "corporate welfare." This view of increased U.S. assistance to Puerto Rico under statehood was supported by a 1990 Report of the Congressional Budget Office and by other more recent studies including a 1996 U.S. General Accounting Office (GAO) Analysis of Certain Potential Effects of Extending (U.S.) Federal Income Taxation to Puerto Rico, and a 1997 GAO study on Tax Policy-Puerto Rico Economic Trends. A number of private studies, many commissioned by pro-statehood organizations on and off the island, have countered the findings of these federal analyses.


Supporters of the referendum measure, in particular Puerto Rico Resident Commissioner Carlos Romero Barcelo, argued in the debate on the House floor that under statehood, individual Puerto Ricans and corporations based there would contribute over US 4.5 billion in income taxes to the U.S. treasury. But concerns persist that Puerto Rico would be the poorest of the integrated states, would receive more U.S. economic assistance than other states, and would pay the least in taxes to the U.S. treasury. Perhaps the mass defection of Republicans away from their leadership and against the legislation was due in large measure to this potential economic impact. What is also emerging is the concern that the present commonwealth status also comes with its own financial price tag, and an indefinite continuation of the status quo could also come under increased Congressional scrutiny for financial reasons. One outcome of the debate is the increased realization that under the present status, Puerto Rico pays no income taxes to the U.S. treasury.

A rather unlikely alliance in support of the bill was the position taken by the Puerto Rico Independence Party (PIP). In a classic case of the "unity of opposites," both the pro-integration and pro-independence parties argue the same point - that the present commonwealth status is colonial and unsustainable. The two parties only differ with respect to the solution. The PIP which has heightened its level of visibility with the U.S. Congress believes that independence will ultimately win out because, as its President Ruben Berrios told the Washington Times newspaper in March, "If we don't obtain a victory now we will obtain it tomorrow because statehood will never be granted." His argument, which is gaining support among U.S. Congressmen, is that "statehood is totally unacceptable to the United States," and if commonwealth is now properly defined as a colonial problem in need of a solution, the only answer is that of independence.

As an indication of this integration - independence dialectic, Romero-Barcelo argued in the House debate that "the unvarnished truth is that Puerto Rico's colonial status remains unchanged," and that "the intent (in creating the commonwealth status) was to create a provisional government until the issue of status was resolved." As Berrios wrote in the bi-monthly U.S. Foreign Affairs journal last November/December, "Congress has acknowledged that commonwealth is territorial under U.S. law which in turn is colonial under international law,(and a) colonial anachronism."
 
As the Debate Intensified...
 
Even the influential words of former U.S. President Ronald Reagan were used to support the bill when Representative Joe Moakley of Massachusetts quoted Reagan's 1982 statement that, "in statehood, the language and culture of (Puerto Rico), rich in history, would be respected," and that "statehood would benefit both the people of the United States" and the people of Puerto Rico. The Ronald Reagan Foundation quickly distanced the former president from the process, however, in a letter to the Congress stating that Reagan "is not now nor will he ever be taking any position on (the current Puerto Rico legislation), the issue of statehood for Puerto Rico, or self-determination for the Puerto Rican people." There was no indication as to why the longstanding Reagan endorsement for statehood was being withdrawn.
 
In any event, Representative Don Young had later made reference to the support expressed in the 1989 State of the Union Address by Reagan's successor, President George Bush, who "long believed that the people of Puerto Rico should have their right to determine their own political future," and who expressed his personal support for integration. So far, no retraction from former President Bush - but the process is far from complete.
 
In the end, it was the Democrats who rescued the bill. Only 17 of the 27 Republicans on the House Resources Committee, from which the bill originated, voted in favour of the legislation in the full House. All but one of the same Republicans had voted for the measure at the committee level. The final tally showed some 177 Republicans abandoning their leadership by opposing the bill with only 43 in favour. On the other hand, the Democrats who had earlier in the process balked at the definition of commonwealth, overwhelmingly supported the measure with 165 votes to only 31 against.
 
The Road Ahead
 
The narrowness of the vote in the U.S. House of Representatives, the lack of consensus among the members of the majority party in the House, and the often contentious debate over culture, language, dignity, finance, Olympic teams and the like under the statehood option all point to a less than certain future for the United States-Puerto Rico Political Status bill. The legislation now shifts to the U.S. Senate where Majority leader Trent Lott of Mississippi has offered little support for bringing the measure to the Senate floor this year [Of course, Lott has changed his mind before, most recently, in his widely reported reversal of his original call for the expedited completion of the U.S. Special prosecutor Ken Starr's investigation on alleged sexual misconduct of President Clinton ].
 
In effect, It would be a simple procedure not to take up the politically explosive issue in the Senate this year, simply on the grounds of the crowded Senate calendar and the fewer than normal days of formal session because of elections in November. But Republican Senator Frank Murkowski of Alaska, Chairman of the Senate Energy and Natural Resources Committee with jurisdiction of the Puerto Rico legislation, supports bringing the bill to the Senate floor this year, and several Senate Democrats have also called for debate on the measure. Members of both parties, however, have made it clear that approval will not be easy, in view of the close vote in the House. As the PIP 's Berrios wrote "the traditional policy of Congressional immobility on Puerto Rico seems to be losing ground, though it is still a tempting option for a Congress with a propensity for crisis management."
 
Puerto Rican politicians are also gearing up for the shift in focus to the Senate. It appeared that the pro-commonwealth Popular Democratic Party had abandoned its lobbying efforts in the House, in the face of a well documented multi-million dollar campaign for approval of the bill by the pro-integrationist forces, and had concentrated their approach on the Senate. The pro-statehood New Progressive Party was, of course, elated with their victory and have stepped up their efforts to press for a Senate vote based on the "momentum." The Puerto Rican Independence Party, meanwhile, views the narrow victory as consistent with their plan to press the issue, in effect, forcing the U.S. Congress to reject statehood for Puerto Rico - something that Congress has been particularly adept at avoiding over the years.
 
As the debate accelerates, some experts are betting on the "independentista" strategy. If the Senate does approve a companion measure with a compromise House-Senate version signed by President Clinton, enough momentum might be generated in Puerto Rico for a positive vote in the referendum for statehood (especially with the threatened boycott by the commonwealth forces). But will the U.S. Congress support a state with less than a "supermajority" of the voters, in view of the very real concern among many Congressmen over the "Quebec" syndrome? Or as Berrios asks, "Is the U.S. willing to risk a Caribbean Quebec or a tropical Northern Ireland ?" He noted that "it is one thing to accept individual Jamaicans or Dominicans as immigrants(but) it is quite another to annex entire nations like Jamaica or the Dominican Republic as states." Thus, with statehood rejected and commonwealth discredited, the independence advocates argue, some form of separate sovereignty - either independence or free association - would win by default. This is not an implausible outcome.
 
Of course, should the Senate takes the safe way out and not address the bill at all - there is a tendency not to take up controversial legislation during an election year - the measure will have to be re-introduced in 1999, possibly with new Congressional members and their own ideas on the subject. The process would then begin anew. In view of what has occurred over many years of debate on this issue, it is difficult to bet against this eventuality either. The Congress may be still dealing with this issue decades into the future.
 
And so it has...

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.

United Nations Action on Decolonisation Resolutions

OTR has recently completed its analysis of the vote in the United Nations Special Political and Decolonisation Committee (Fourth Committee) which adopted its 2009 resolutions on the remaining 16 non self-governing territories last month. Whilst a number of the resolutions were approved by consensus, the usual vote was required on others, as several of the countries which administer or occupy territories, or those which have sovereignty disputes over territories, vote against or abstain from specific resolutions.


In the case of the United Kingdom (UK), the usual explanation was given for their position, even as the explanation is inconsistent with its responsibilities under the United Nations Charter. France and the United States (US), however, provide no insight at the Fourth Committee on their negative votes.


In the case of the U.S., the vote by the Obama Administration was strikingly similar to that of the Bush Administration – in fact, it was identical. It appears that the policy’ ‘change’ has not yet filtered down to the issue of decolonisation of the remaining territories – an issue which apparently is of a lesser priority. The recent legislation authorizing U.S. support for a self-determination process for the U.S.-administered territories recently adopted by the U.S. House Committee on Natural Resources should hopefully serve to stimulate some new thinking on this matter.


OTR offers the following excerpts from the United Nations press release, with substantive commentary in italics.

Draft resolution I, on information from Non-Self-Governing Territories transmitted under Article 73 e of the Charter of the United Nations  was approved by a recorded vote of 140 in favour to none against, with 4 abstentions (France, Israel, United Kingdom, United States).

Explaining his position after the vote, the representative of the United Kingdom said that, as in previous years, his delegation had abstained. The Government did not take issue with the resolution’s main objective, and continued to meet its obligations in that regard. His Government believed, however, that a decision as to whether a Non-Self-Governing Territory had reached a level of self-government was ultimately for the government of the Territory and the administering Power concerned, and not the General Assembly.

Taking up draft resolution II, on economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories, the Committee approved the text by a recorded vote of 146 in favour to 2 against (Israel, United States), with 2 abstentions (France, United Kingdom)

Speaking after the vote, the representative of Argentina said the applicability of the resolution in a given Territory depended on whether the right to self-determination was applicable to that Territory. Thus, it was relevant to bear in mind that certain General Assembly resolutions noted that, in cases where there was a sovereignty dispute, such as in the Malvinas Islands, South Sandwich Islands and surrounding maritime areas, a negotiated solution was the only path to resolving the dispute, and not self-determination. The resolution, therefore, was not applicable to the Malvinas Islands and the surrounding archipelagic areas. The situation prevailing in this archipelago, belonging to the national territory of a country, resulted in the unilateral exploitation by the United Kingdom of the natural resources of the Malvinas Islands and surrounding marine areas. That ran counter to the Assembly’s decisions in that field, and was a brazen violation.

The representative of the United Kingdom said that the sovereignty of the Falkland Islands was well-known, as the United Kingdom had expressed in the right of reply in the general debate on decolonization. There was no doubt about that Territory’s sovereignty and there could be no negotiation about those issues unless and until such time as the islanders so wished.

(Editor's Note:  The Falklands Islands and the Malvinas are different names for the same island...)

The Committee then approved draft resolution III on implementation of the (Decolonisation) Declaration by the specialized agencies and the international institutions associated with the United Nations by a recorded vote of 98 in favour to none against, with 50 abstentions.

Speaking in explanation of vote on behalf of the European Union, Sweden’s representative reaffirmed support for the specialized agencies of the United Nations in their efforts, particularly those in the technical and educational fields. The Union favoured careful compliance with those agencies’ statutes. It had therefore abstained from the vote. The U.S. did not speak on this resolution, but did address the same issue during its consideration by the UN Economic and Social Council (ECOSOC) last August. Accordingly, OTR reported in August that:

“The objections of the various member states to the resolution on assistance to the territories from the UN system are virtually identical to their objections for over a decade. Thus, the US representative continues to articulate to ECOSOC that any assistance to, or participation in, UN programmes for the non self-governing territories must be confirmed by the UN member State which controls the foreign relations of the territories concerned. This is a but a re-statement of the practice which is already in place, and has always been a requirement of the rules of procedure of any UN agency which provides for assistance or participation for these territories. The resolution, even in its present form, makes this clear.


A second objection by the US representative suggests that the resolution somehow “infringes upon” the internal constitutional arrangements of the United States. Yet, the longstanding US practice provides the delegation of authority to the territories, on a case by case basis, to participate in international organisations and activities.


In virtually all cases, it is only the state which controls the international relations of the territory which can make a request for the affiliation of the territory in any given UN body. If the delegation of authority is freely given by the administering power to the territory to participate in a given international organisation or activity, how can it be, at the same time, an infringement on the administering power’s control?”

The representative of Argentina stressed that the resolution should be in line with the previous resolutions and decisions of the General Assembly and the Special Committee on Decolonization.

It was unclear what was meant by this position.

Following that, the Committee took up draft resolution VI, on the questions of American Samoa, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Guam, Montserrat, Pitcairn, Saint Helena, the Turks and Caicos Islands and the United States Virgin Islands approving it without a vote.

But will the provisions be implemented?

Speaking in explanation after the vote, the representative of the United Kingdom said that his delegation had joined consensus on the last resolution, which reflected its full support for the right to self-determination. However, his delegation regretted the outdated approach of the “Committee of 24” (Special Committee on Decolonization), which failed to take full account of the way that the relationship between the United Kingdom and its Overseas Territories had been modernized in a way acceptable to both parties. The resolution did not fully reflect that modern relationship, he said, and the United Kingdom did not accept the assertion that self-determination did not apply where there existed a sovereignty dispute.

This was a repetition of the statement from previous years.

The representative of Argentina expressed full support for the right of people who were still subjected to colonization, and for the right to self-determination of the 11 Territories in the resolution just adopted. At the same time, as had been expressed in a letter to the Secretary-General distributed on 7 July. the annual resolution adopted by the General Assembly on the questions of American Samoa, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Guam, Montserrat, Pitcairn, Saint Helena, the Turks and Caicos Islands and the United States Virgin Islands, and the considerations contained therein, were strictly related to the Territories referred to in those questions. The question of the Malvinas Islands was subjected to separate treatment in specific resolutions that gave due consideration to the special and particular features inherent in it, which were derived from the existence of a sovereignty dispute between the Argentine Republic and the United Kingdom.

The Committee next approved draft resolution VII on dissemination of information on decolonization by a recorded vote of 150 in favour to 3 against (France, United Kingdom, United States) with 1 abstention (France).

Speaking in explanation of vote, the United Kingdom’s representative said his delegation had voted against the text because it remained of the view that the obligation it placed on the Secretariat to disseminate information represented an unwarranted drain on the Organization’s resources. As such, the resolution was unacceptable to the United Kingdom.

Really?

 The representative of Argentina said his delegation wished to express support for the right of self-determination. Despite that, the text should be interpreted and implemented in keeping with pertinent General Assembly resolutions and the various resolutions and statements of the Special Committee on Decolonization, which recognized the existence of a sovereignty dispute between his country and the United Kingdom over the Malvinas Islands.

(Everything appears to be seen through the prism of the Malvinas sovereignty dispute).

Next, the Committee approved draft resolution VIII on the implementation of the (Decolonization) Declaration  by a vote of 152 in favour to 3 against (Israel, United Kingdom, United States), with 2 abstentions (Belgium, France).

Speaking in explanation of vote after the vote, the representative of Argentina stressed that, regarding operative paragraph 7, visiting missions proceeded only in cases where self-determination was applicable, specifically those for which there was no sovereignty dispute.

(Everything appears to be seen through the prism of the Malvinas sovereignty dispute).

The representative of the United Kingdom said his delegation had voted “no” because it continued to find some parts of the text unacceptable.

(Which parts, may we ask?)

Nevertheless, the Government of the United Kingdom remained committed to modernizing its relationship with its Overseas Territories, while taking fully into account the views of the peoples of the Territories.

(The usual refrain...).

Following that, the representative of Guinea said that his delegation had intended to vote in favour of draft resolutions I, II and III, and requested that that be duly noted in the record.


Singapore’s representative said that his delegation had wished to vote in favour of the resolutions pertaining to item 35, on information from Non-Self-Governing Territories transmitted under Article 73 e of the United Nations Charter, and on item 36, on economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories.

The representatives of Pakistan and Chile said that their delegations had wanted to vote in favour of resolutions concerning item 35, and item 37, on implementation of the (Decolonization) Declaration  by the specialized agencies and the international institutions associated with the United Nations. The representatives of Sierra Leone and Burkina Faso said they had wished to vote in favour of the resolutions concerning item 35.

On 3rd October, OTR wrote that “how the United Nations deals with decolonization has become “a sterile exercise, a game of pretense played to avoid what is meant to be achieved." We indicated that we would “nevertheless… cover the 2009 session of the Fourth Committee, not because we harbor any illusions that the process will change, but rather because our readership demands to be kept abreast.”


In any event, the General Assembly will take the final vote in December. We'll be there...