Overseas Territories Report July 2009

Overseas Territories Report ________________________________________________________________________ The authoritative journal on economic, social and political developments in and affecting small island overseas countries, territories and departments ________________________________________________________________ Vol. VIII No. 2 July 2009 North American Edition The 161st anniversary of the abolition of slavery in the former Danish West Indies – the present day US Virgin Islands - was commemorated on 3rd July 2009. A commemorative programme was held in Fort Frederik, Frederiksted, St. Croix, Virgin Islands. An address was given by former Virgin Islands Minister for External Affairs Dr. Carlyle G. Corbin, International Advisor on Democratic Governance. The address has been made available to Overseas Territories Review (OTR), and is reprinted by permission. _____________________________________________________________________________

“Political Evolution: The Next Phase of Emancipation” Dr. Carlyle G. Corbin International Advisor on Democratic Governance (former US Virgin Islands Minister of State for External Affairs) 3rd July 2009 Introduction I wish to thank the members of Yesterday, Today and Tomorrow, the organizers of this important event each year, for the kind invitation to participate in these activities in commemoration of the 161st anniversary of emancipation. I wish to especially thank Ms. Mary Moorhead and Ms. Pam Richards for facilitating my participation at this year’s activities. I have worked with these dynamic Virgin Islanders for a number of years, and was honoured to have been asked to present some thoughts on this sacred day in our history. I especially wish to congratulate my friend and brother Mario Moorhead on the publication of his most recent book, “He and Me.” His earlier works, Redemption, Mammon Versus History, Who Feels it Knows It, and the series of ‘Black Star novels among other works, provide a most dynamic analysis of the historical evolution of the people of the Virgin Islands. These works are required reading for those who wish to achieve clarity on the true legacy of the struggle of our past, and what is necessary to move forward. In the words of Actress Ruby Dee, “Above all, we need those with a sense of history - those who have the longer view.” I look forward to Mario’s feature address this afternoon.

As we commemorate this 161st year of emancipation, it is my firm belief that today, Emancipation Day, is our single most important holiday because it represents the successful struggle of the ancestors in abolishing the abominable system of slavery under the Kingdom of Denmark, beginning a long and arduous journey towards the pursuit – but not yet the attainment - of the civil, political and human rights of the people. It is interesting that Emancipation Day in other parts of the Caribbean is often the most important holiday on the calendar. Our close neighbor, the British Virgin Islands, commemorates its emancipation on the first Monday in August (August Monday). In fact, the Emancipation Festival in the BVI, as in other British territories, is centered around Emancipation Day, with many activities dealing with cultural history and the struggle of African people who succeeded in defeating slavery under the British. International Commemoration of the Abolition of Slavery In recent years, my work at the United Nations has permitted me to participate in the international commemoration the abolition of slavery. On 17th December 2007, the United Nations General Assembly adopted a resolution designating March 25th each year as the International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. As a result, a number of educational outreach programmes have been instituted to draw attention to the “causes, consequences and lessons of the transatlantic slave trade, and to communicate the dangers of racism and prejudice.” This initiative was done through the collaboration of the member countries of Caribbean Community (CARICOM) and the African Union at the United Nations. Ambassador Crispen Gregoire of Dominica and Ambassador Raymond Wolfe of Jamaica are especially engaged in keeping the issue on the front burner of the United Nations. This initiative was an outgrowth of the momentum generated at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance which convened in 2001 in South Africa – one of the world conferences in which I had the honour to speak on behalf of the Government of the US Virgin Islands during my tenure in Government House. In 2008, a number of activities were undertaken including a solemn ceremony in the United Nations General Assembly Hall and an exhibition in the United Nations Visitor’s Lobby entitled “The Middle Passage: White Ships, Black Cargo.” Additionally, a conference entitled “Lest We Forget: Breaking the Silence on the Transatlantic Slave Trade,” was also held after the premiere of the powerful documentary “The Slave Route: A Global Vision.” Also in 2008, a group of students sailing on a replica of the Freedom Schooner Amistad retracing the Transatlantic Slave Route joined an international videoconference, when their ship docked in St. Lucia on 26 March. The 2009 activities three months ago at the United Nations included several documentary films: Scattered Africa: Faces and Voices of the African Diaspora (US),and "Black Atlantic: On the Orixas Route" (Brazil). An expert panel discussion on “The Legacy of the Slave Trade on Modern Society,” and a major cultural event in the General Assembly Hall culminated this year’s commemoration. Recently, a Trust Fund was established for the creation of a permanent memorial at United Nations Headquarters acknowledging victims of slavery and the trans-Atlantic Slave Trade. You would be

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interested to know that the Kingdom of Denmark has pledged US$ 10,000 to this memorial, and was one of the first countries to so pledge. To this end, Denmark’s acknowledgment of the past has been encouraging. In a 2007 report submitted to the United Nations, Denmark acknowledged its role in “the barbarism of transatlantic slave trade (which) constitute(d) one of the darkest chapters of our history, in terms of its magnitude, its organized nature and particularly its negation of the human dignity of the victims.” The Danish perspective, however, regards slavery as a legal institution at the time it was practiced, and as such, absolves them of any liability to this point. In any case, the Danes, too, should share in this July 3rd commemoration as well since our emancipation, and the cessation of that “crime against humanity,” was part of Danish political history and evolution, as well – even as emancipation was not one of benevolent enlightenment, but rather the result of the organized revolt by the enslaved Africans. The Internalization of Dependency A week or so ago, I heard a talk show host in St. Thomas discuss the adoption of the recent non-binding US Senate Resolution 26 apologising for the “enslavement and racial discrimination of African-Americans.” This followed the adoption in 2008 of a similar resolution in the House of Representatives (H. Res.194). Neither resolution, however, supported reparations for the descendents of the enslaved Africans. Undeterred, Rep. John Conyers of Michigan last January introduced legislation, once again (HR 40), to form a Commission to Study Reparation Proposals. Meanwhile, President Obama’s delegation to the recent United Nations international conference in Geneva to review progress in implementing measures to combat racism successfully pressed for the removal of reference to reparations in the final report of the conference. In any case, what was interesting to me as I listened to the talk show host discuss the Congressional apology was how he internalized this Congressional resolution, as if it applied to us here in this unincorporated territory. I am sure that he was aware that the slavery experience of our ancestors was under Denmark, not under the United States – unless, of course, the US assumed liability at the time of the purchase. I don’t see that anywhere in the Treaty of Cession, however. The point that I am making is that our territorial status has caused us to internalize many things that do not apply to us precisely because our political identity is incomplete. In effect, we operate without a full measure of self-government. We are a people, not a ‘minority,’ as we are often referred to in the media. How can an overwhelmingly African descended society located in the Caribbean be referred to as a minority? Even federal statistics acknowledge that the society is comprised of about 85 per cent African descendents. Why, then, are we continuously characterized as a minority? As Paul Keens-Douglas wrote, is this “freedom of the press, or freedom to de-press?”

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The fact is that we are a people who have a right to self-determination under international law - but we have never exercised that right. The Charter of the United Nations and the human rights conventions such as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights confirm this right as inalienable. This is not based on United Nations resolutions whose effect is not legally binding – although they are certainly morally binding. These are international treaties which are, in fact, legally binding on the countries that enter into them. Under this inalienable right of self-determination, we have the right to choose from a set of legitimate political status options which provide for absolute political equality. As a society, however, we seem to have internalized the dependent territorial status, and by doing so, we have given it a legitimacy which it does not necessarily warrant. It has served us to this point in our political evolution and development, but the elements of the present status remain seriously deficient with respect to what constitutes democracy. These democratic deficiencies are the primary reason why we are listed by the United Nations as one of the sixteen remaining non self-governing territories. If we cannot be recognised as a people because of our dependent territory status, then there is clearly something wrong with that status – not with the people who demand their due recognition as a people. Identity and citizenship are not necessarily synonymous. Recommendations have been made by the United Nations General Assembly since 1946 to give effect to our political development and evolution to full selfgovernment. As a society, however, we are encouraged to dismiss the relevancy of international law and principles, and the role of the United Nations, even as most of our elected governments for decades have addressed the United Nations during the annual United Nations review of the US Virgin Islands. The Bush Administration issued a policy position that the territories under its administration were no longer an international issue, and merely a domestic one – but they still report to the United Nations every year. But, if we are not an international issue, why are we still on the United Nations list, and why did the Bush Administration continue to acknowledge us as an international question by reporting to the United Nations? We do not read, see nor hear much of any of this in the media. The fact that our political development has been the subject of international review and assessment since 1946, based on the Charter of the United Nations is rarely reported - unless someone writes a guest editorial. We must find alternative sources to fill the considerable gaps in information on matters that directly relate to us. Status Quo Versus Options of Political Equality I was asked to focus this afternoon on the option of free association – one of the three options which would provide us with a full measure of self-government. It is an option which is recognized as a permanent political status, along with independence and integration, in accordance with international law. These three options are also recognized by the US Congress as options of political equality. Present legislation before Congress

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known as the Puerto Rico Democracy Act of 2009 (H.R. 2499) introduced by Puerto Rico Resident Commissioner Pedro Pierluisi confirms that these three options as the only ones which provide for a permanent political status. The White House under former President Bush had agreed that these were the three permanent options in their 2005 and 2007 reports, while also recognizing the temporary nature, as well as the limitations, of the present territorial status. Puerto Rico Governor Luis Fortuño put it this way in his testimony before the U.S. House of Representatives Committee on Natural Resources on self-determination legislation for Puerto Rico: “230 years after the Declaration of Independence and 220 after the ratification of the US constitution, (the United States) continues to sanction an arrangement of governance over four million of its citizens that is abhorrent to the sacred principles enshrined in that Declaration because of the anachronistic survival of the Territory Clause of that constitution.” Governor Fortuño continued that: “Whatever may have been the role of the territorial system in the birth and growth of (the United States), the fact is that (the) Founding Fathers never intended it as a permanent way of governance by the federal government over the citizens of the Republic. More importantly, it clearly offends the values of American democracy in the 21st Century, especially as Congress has allowed such an inherently undemocratic system to remain in place…” The Governor went on to say that: “…we have forged an overall and growing consensus in Puerto Rico that our current relationship with the U.S. – territorial, unequal in the rights and duties of citizenship, not fully democratic, not fully self-governing and not fully consensual – no longer serves either Puerto Rico or the U.S. as well.” The present territorial status no longer serves the U.S. Virgin Islands either. Governor Fortuño, in his testimony, asked the fundamental question of “whether the framers of the (U.S.) constitution intend American citizenship to be a source of equal rights?” He observed that “Puerto Rico is a community of American citizens who are deprived of the most basic rights of citizenship in a representative democracy: the right to vote and the right to be represented in the political body that enacts the laws by which they must abide.” He ventured that “American citizens in Puerto Rico are separated from their counterparts in the States by a wall of political inequality built upon the foundation of our current territorial status.”

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So there we have it. In analyzing this unincorporated territorial status, then, it is easy to recognize the fundamental democratic deficiencies under which we are governed. We are aware, for example, that we have no presidential vote, non-voting representation in the US House of Representatives and no representation at all in the US Senate. We also know that there are limitations, because of our status, in relation to the level of participation in some federal programmes. The inconsistency of these democratic deficiencies are mentioned, often in passing, in the local media from time to time, but often so obliquely that it generates little or no reaction. As Mario might say, we may have heard it, but nothing rang in our head. This is not the case in some of the other territories. The driving force behind Puerto Rican political parties, for example, is their support for a political status preference. Thus, there is a pro-statehood New Progressive Party, a pro-commonwealth Popular Democratic Party and a pro-independence Puerto Rico Independence Party. The political leadership, as evidenced by the clarity of position of Puerto Rico Governor Fortuño and other political leaders, plays a critical role in the public education process on these issues. The territory of Guam recognised the importance of full internal self-government as far back as the 1990s, and voted in favour of substantive autonomy in a referendum, although their proposal stalled in Congress. The commonwealth of the Northern Marianas has the most autonomous status of all of the US territories with powers governing the ownership of land and sea resources, among other areas. They gained these powers through successful negotiations with the United States in the 1980s. Recently, however, their autonomy is being systematically eroded by the Congress through legislation adopted late last year. This has motivated the Marianas Government to bring suit against the federal government for the unilateral removal of their self-government. We await the decision on their lawsuit which was filed in federal court in Washington, D.C. For our part, the Virgin Islands Status Commission in the early 1990s drafted an autonomous political arrangement for consideration by the voters as an attempt to achieve a degree of self-government. The faulty process which included an excessive number of seven options severely impeded a proper public review of the areas contained in the autonomy proposal. The result, as we recall, was a less than sufficient turn-out in the 1993 referendum, and we reverted to the status quo, by default, and many questions remained. Thus, in our present political status, we in the US Virgin Islands know that there is something not quite right. There is something peculiar, for example, with the fact that on Election Day last year we could not cast a vote for Mr. Obama – we seem to have concluded that voting in a primary election in the territory months before the ‘real vote’ for president is sufficient. We have internalized the deficiencies, and seem to have accepted them as adequate. We have given legitimacy to a model of political dependency which is far short of acceptable democratic governance. The late Michael Manley in the

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book “Struggle in the Periphery,” wrote that in order “to go forward (we) first have to recognize the depth of the trap in which we are caught.” It may be surprising to many that the denial of such political rights is an issue for the citizens of the District of Columbia. The democratic deficiencies in their political status vis a vis the United States were enough to motivate civic leaders to file a case in the Inter American Commission for Human Rights. The Commission ultimately ruled that the lack of Congressional vote violated international law (specifically, the International Covenant on Civil and Political Rights, et al). The Inter American Commission on Human Rights is a statutory body of the Organization of American States (OAS) which itself has a Democracy Charter by which it defends democratic principles in the hemisphere. On this basis, a similar case was filed with the same Commission by former Puerto Rico Governor Pedro Rossello, but has not yet been heard. While there are no enforcement provisions in the Commission rulings, they represent a true sense of moral reasoning. In any case, such rulings serve as precedents for our situation as an unincorporated territory if we were to similarly challenge our lack of full political rights. Are there similarly organized civic groups in the US Virgin Islands who recognize the democratic deficiencies, and who would bring such a challenge? Indeed, proper and sustainable organisation around these issues is critical if we are to advance from the political periphery. As if to confirm our place in that periphery, the US courts have continuously and consistently reaffirmed that full political rights can only be granted through the achievement of political integration, or statehood. The ruling of the United States Court of Appeals for the First Circuit, in 2000 was a landmark in a series of earlier and subsequent court decisions which confirmed this fact. The Court reversed an earlier District Court of Puerto Rico decision which had concluded that the 24th and 26th amendments of the U.S. Constitution “support that the right to participate in presidential elections is not a function of state residence, but rather of individual right of citizenship.” However, it was confirmed by the Appeals Court, once again, that only citizens residing in one of the fifty states have the power to vote for electors, and thereby indirectly for the president of the United States. A similar case brought by Krim Ballantine in St. Thomas with respect to the US Virgin Islands has met with similar rulings. The federal executive has acted consistent with these rulings, and has made important policy decisions regarding the territories to this effect. Thus, prevailing White House policy has confirmed that the present status in Puerto Rico known as commonwealth is really an unincorporated territory subject to the Territorial Clause of the US Constitution. This gives the Congress the right to unilaterally make laws for the territories without their consent, and often against their will. It is this very unilateral authority which has been identified by the United Nations General Assembly each year as the fundamental basis of the political inequality which characterizes unincorporated territorial status. It is a fundamental reason for the retention of territories on the UN list of non self-governing territories. We are one of the sixteen remaining territories on that list.

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We should find out the position of the Obama Administration later this year on the self-determination process of the territories when the newest White House report on the status of Puerto Rico is due. Would the Obama administration have a different opinion than that of the Bush administration on the legitimacy of territorial status, and the possible way forward? We shall see. It is often the case, however, that policy made on the basis of the U.S. Justice Department opinion carries over from one administration to the next. But whatever is decided, one thing remains clear. There is a fundamental imbalance in the political relationship between a territory and the federal government. The only matter of discussion is how do we correct the imbalance? But then again, do we recognize that such an imbalance indeed exists? Do we consider that the political imbalance of power between the federal government and the territory is necessary - to keep us in check? I am especially troubled by this thinking. This is why Mario’s talk show is so important because it helps us to understand the imbalance, and to discuss how it can be re-balanced. On this Emancipation Day, I recall the words of former Tanzanian President Julius Nyerere that: “Freedom is the ability to determine your own future and to govern without interference.” One way of addressing the imbalance is through a gradualist approach where we would seek incremental rights, beginning, perhaps, with the presidential vote. But this would be a formidable task, and could only come via an amendment to the US Constitution, as was done for the District of Columbia. It would be a major challenge to gain overwhelming support of both houses of Congress along with three-fourths of the state legislatures for a constitutional amendment. The lobbying costs alone would probably be prohibitive. Of course, legislation to grant the presidential vote to the U.S. territories by federal law has been dutifully introduced in the House of Representatives, year after year, for decades. These bills have never been acted upon. Also taking the gradualist approach, we could seek to gain full voting rights in the US House of Representatives as opposed to the present vote only in committee. Under the present Democratic Party-controlled Congress, this also includes a vote in the Committee of the Whole pursuant to House rules. But the District of Columbia nonvoting delegate can attest to the difficulties in achieving a Congressional vote for a nonstate, as present legislation is being held up as a result of provisions added to soften DC gun laws – to allow more guns. You might be quite amazed by the nature of the discussions in the Congressional debate on several bills that would extend House of Representatives voting rights to Washington, D.C. Further, what about the vote for the territories in the US Senate? The US Constitution is clear that only states have that power. We are not a state, although we have state directors and state plans, and state-like treatment. A colleague of mine calls it the illusion of inclusion. But, as Martin Luther King said in his “I have a dream” speech on the steps of the US Capitol, “We must guard against the tranquilizing drug of gradualism.” As Leba Ola Niyi concluded in his newspaper column on this day, “the status quo is archaic, colonial and undesirable.”

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The fact that we have an Olympic team which competes in international competitions under the US Virgin Islands flag, and the fact that we have associate membership in several United Nations agencies with a seat behind the US Virgin Islands nameplate, should signal that our status is complex. States cannot send teams to the Olympics nor can they be represented in international organisations. These things were created, mostly at the request of the territories, to contribute to preparation towards full self-government. We must not lose sight of that fact. Statehood as a Legitimate Option If we really want to transform the ‘illusion of inclusion,’ and gain full political rights in the United States system, we could become a state, or even a part of a state. But with a population of just over 100,000, as well as other demographic factors, it would be especially difficult to achieve separate statehood. Of course, there is the possibility of joining an existing state, or joining with a new state entering the union. This would solve the democratic deficit. We would have a vote in both Houses of Congress, as well as the presidential vote. But would this be in our economic, cultural and political interest? There are certain questions that answer themselves just by being asked. But it is necessary for us to decide our political future sooner, rather than later. If we don’t decide, Congress could decide for us - so if they wish to combine us with an existing state, for example, or make us three new municipalities of a new 51st state of Puerto Rico, what would be our response? Indignation? Incredulity? Or would we have a counter offer?

In any case, the option of integration – or as we know it, statehood - is defined by the United Nations in its Resolution 1514 (XV) of 1960, as follows: •

"Integration should be on the basis of complete equality between the peoples of the erstwhile non-self-governing territory with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government...”

Former territories such as Alaska and Hawaii became the 49th and 50th states of the US, and as such, were removed from the UN list of non self-governing territories. In our region, Martinique, Guadeloupe and French Guiana are the examples of integration through their overseas departmental status. This provides them with full political rights, but recent labour unrest indicates that the model is far from perfect. Recently, there have been calls for the creation of a new autonomous arrangement for Martinique – perhaps along the lines of French Polynesia. In any case, the chronic economic crisis in Hawaii does not bode well for the ‘overseas state’ model, which along with the five US territories, was in economic crisis long before the present global recession.

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Of course, political integration, or statehood, is one of the three options which provide for full political equality where the people of the territory would have full political rights, as well as the responsibilities of actually being “a part of” the US rather than “owned by” it. Many have internalized that we are a part of the US already, since we hear the phrase repeated on a daily basis. But the political and constitutional reality is fundamentally clearly otherwise. Having the US territories embossed on the back of a coin does not constitute political integration, but merely serves to further the illusion of integration. I suppose if any of the territories change their status, the minting of these coins would cease, and the remaining coins would become immediate collector’s items. I am clearly not an advocate of statehood. But I fully respect it as a viable option because it would afford full political rights which we presently do not have. It would provide, in the words of the late Peter Tosh, “equal rights and justice.” The price in economic, social and cultural terms, however, might be far too steep. Evolution of Governance Historically, we have gone through various systems of governance, beginning with chattel slavery to military governance through Congressional rule via the Organic Act of 1936 and the Revised Organic Act of 1954, as it has been subsequently amended. In the process, we have moved from the era of an appointed governor to one of an elected governor by 1968 – all the while, still being governed by the Revised Organic Act which was written by the U.S. Congress. We have gone through four – and now five – attempts to draft a local constitution - with the caveat each time that the final document would have to be consistent with our present dependency status. I share the view of those who felt that we should have followed the will of the people who voted in referendum in 1982 to deal with status first. Of course, we did try to deal with status through two commissions in the 1980s and 1990s, as well as one committee of the Legislature. Our second Status Commission, which convened before and after Hurricane Hugo, and on which I had the honour to serve, did significant work that should have propelled us into a new decade of concentration on the political evolution of the territory. Some of our best political thinkers of today, Gerard Emanuel and Malik Sekou, were part of that earlier process, and it is most unfortunate that their recommendation was not accepted that an educational component on political development be continued after the inconclusive referendum of 1993. As such, there was no public discussion on the status or constitutional issues between 1993 and the present Fifth Constitutional Convention process. Many issues which were left unresolved following the political status referendum in 1993 have resurfaced in the Fifth Constitutional Convention which has a narrower mandate. We should not be surprised since this was the only forum for over a decade where any issues of governance could be discussed.

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My view is that a constitution based on a legitimate status chosen by the people would be preferable than one which is based on the status quo which itself was never meant to be permanent. Territorial status was always meant to be a transitional status to one of permanence. We have tweaked it, amended it and otherwise changed it within parametres, sometimes defined, sometimes un-defined by the U.S. Congress, and always subject to unilateral change. Such changes effectively eliminated the foreign sales corporations sector, and had significant impacts on the investment incentive programme, for example. The overarching control to legislate for the territory remained, and remains, in place. It is not surprising, therefore, that many of the issues under discussion in the present Fifth Constitutional Convention were those which sought more autonomy and local control. Some viewed them as ‘status’ issues. Again, I have always favoured statusfirst, but in a pragmatic sense, I take the view that anything which stimulates discussion on political development is a good thing. This is why I agreed to serve as an advisor to the Fifth Constitutional Convention where the deliberations raised a series of fundamental questions, such as: • • •

• •

• •

• •

Would additional powers and authority be delegated by the Congress to an unincorporated territory under a local constitution? Does the fact that other US territories have unique provisions in their constitutions in relation to their local population serve as precedents for the US Virgin Islands? If not, why not? If the process goes through successfully, and we adopt a new constitution after it comes from Washington – assuming it actually goes to Washington – will we feel that we have “arrived,” and that we are “done with that?” Or will we recognise that with the enactment of a new constitution, a step would be made, but that we would still remain an unincorporated territory, albeit with a constitution, as opposed to a territory without a constitution as we are now? Will we come to the realisation that a local constitution would be only the beginning of a process to address the fundamental matter of achieving full internal selfgovernment and the achievement of a permanent status.

It is often better to know some of the questions than all of the answers. Free Association As I stated earlier, integration, free association and independence are the three options recognised as legitimate by the White House, by the Congress and by the United Nations. If these are the available alternatives to achieve a permanent status, then the most logical step in my view would be a transition from a political dependency, as we are now, to a political association – given that the territorial status was always meant to be temporary and transitory.

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Most of the present work in political transition has been historically done in regards to Puerto Rico, and is directly related to the political future of the US Virgin Islands. The present legislation before the US Congress authorizing a referendum for Puerto Rico confirms the legitimacy of the three options. It also provides for the Puerto Rican people to choose the status quo commonwealth - but if the people choose it, they would have to vote again in a few years, until they select one of the three permanent options. As you might imagine, Commonwealth supporters are not too pleased with their option of “permanent union” with United States now being re-defined as temporary. As far as they are concerned, commonwealth is permanent. This is part of their illusion. Free association, then, is an option which emerged from the same United Nations resolution which defined political integration, specifically United Nations Resolution 1541 (XV) of 1960. It sets the minimum standards for an acceptable autonomous political arrangement. Accordingly: •

“Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent state the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.

•

The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people..."

So far, the model of free association offered by the United States is that which it maintains in the Pacific with the associated states of Micronesia, Palau and the Marshall Islands. These arrangements emerged from the former United Nations Trust Territory of the Pacific Islands, and are based primarily on military considerations in exchange for long-term economic assistance packages. There are also requirements for consultation to take place on all issues related to defense and foreign affairs. The three associated states are also full members of the United Nations. The free association arrangements between these three associated states and the United States provides for grant assistance over a twenty year period (which could be extended), and a trust fund that will accrue to provide an ongoing source of revenue when direct U.S. grant assistance ends. The arrangement also identifies the mutually agreed priorities for grant assistance in the areas of education, health care, infrastructure, private development, environmental protection, and capacity building sectors. It also provides for the continuation of federal programs and services for the benefit of the citizens of the associated state. The Congressional Research Service in a 2005 Report indicated that the US model of free association is based upon a legal document known as a compact of association between the associated state and the United States. The CRS also said that free association could be accompanied by a transition period in which the United States could

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continue to administer certain services and provide further assistance for a period of time, as specified in the compact. Free association could also be annulled by either party based on the terms of the compact. Whether US citizenship could be retained under free association continues to be the biggest question mark. I would argue that if free association with the retention of US citizenship were offered to Puerto Rico, a critical mass of 75 per cent of the electorate would coalesce around that option – especially if statehood were denied. The Congress, thus far, has been rather adept over the decades in avoiding the question of whether it would accept Puerto Rico as a Spanish-speaking state. The retention of the primacy of the Spanish language as a state is non-negotiable, even among many pro-statehooders. Congress may be faced with that question, once again, if the present legislation authorizing a referendum for Puerto Rico on the three options is adopted and signed into law by President Obama. In the Caribbean, there are presently other, more flexible, models of autonomy which combine elements of free association and elements of integration. These have risen to the level of political equality sufficient to remove them from United Nations jurisdiction. The Netherlands Antilles, comprised of Bonaire, Curacao, Saba, St. Eustatius and Sint Maarten, is referred to in the Charter of the Kingdom of the Netherlands as a separate country with significant autonomous powers, along with Aruba and Holland. The relationship allows for the right to influence whether or how Kingdom laws or treaties apply. At the same time, there are provisions for participation in the legislative body of the Kingdom. The present dismantling of the five-island Netherlands Antilles has more to do with the difficulties in multi-island governance from Curacao than the efficacy of the autonomous model itself. Both Sint Maarten and Curacao fought hard to maintain the autonomy existing in the present arrangement of the five islands in their negotiations with the Dutch on separate arrangements for the individual islands. The negotiations, however, have resulted in some loss of autonomy in fiscal matters and security. Puerto Rico used to be considered a model of free association with the United States on the basis of common market, common citizenship, common defence and common currency. However, as I mentioned earlier, the Puerto Rico model of commonwealth has been re-defined by the White House, and in Congressional legislation, with the perception of autonomy significantly curtailed. It is on the basis of significant autonomy, however, that the people supported numerous referenda in support of commonwealth status. Pro-commonwealth leaders continue to argue – most recently in Congressional hearings – that the commonwealth status provides freedom from control or interference by the Congress in respect of internal government and administration. They cite a series of US Supreme Court decisions supporting their position, as well as a 1971 U.S. Justice Department opinion which concluded that Congress can gradually relinquish its plenary powers and grant ever increasing measures of self-government. More recent Justice Department opinions, however, appear to have modified this perspective.

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Other autonomous models for small island territories are in the Pacific, including the Cook Islands and Niue in free association with New Zealand. This is probably the most progressive of models of association existing today, providing for the maximum autonomy with shared New Zealand citizenship. There is also Greenland and the Faroe Islands which enjoy autonomous arrangements with Denmark. These arrangements (Greenland more than the Faroes) provides for significant autonomy, while also providing for shared Danish citizenship and voting representation in the Danish Parliament. This brings to mind a discussion in our Status Commission in the 1990s of adding “Return to Denmark” as a status option. It was clear that the political status of Greenland and Faroe Islands, respectively, was far more autonomous than our present status of unincorporated territory. Since we already had seven options, however, there was insufficient interest in adding an eighth. In all of these cases, though, the elements of any model of free association are determined in negotiation. Our best minds would have to be tasked to study these models, and develop a strategic plan for negotiations. Ultimately, an autonomous arrangement specifically suited to us would be the logical outcome. Of course, this would have to be preceded by an extensive public education programme on the three legitimate political options, to ensure fairness. To this end, the federal government has an international obligation under Article 73(b) of the United Nations Charter to assist the territory in the promotion of self-government. So far, the federal government has not been forthcoming in providing such assistance. Both the Virgin Islands Status Commission in the early 1990s, and the present Fifth Constitutional Convention, made requests for assistance in conducting a public education programme. In both cases, the requests were denied, as was the request for the authority to access United Nations assistance. Interestingly, previous Congressional legislation on status referenda for Puerto Rico would have the public educational programme funded from the rum excise tax rebate. Conclusion Of the three legitimate options of political equality, I would lean towards the option of free association. While I am confident that we have the capacity to govern ourselves as an independent state, just as any other small island states in the Caribbean with even smaller populations than our own, it is clear to me that our society is not presently prepared for such a qualitative leap at this time. Independence is a state of mind. We are not in that state of mind. Free association would be an excellent compromise between those who wish to retain a political relationship with the United States, while also attaining more autonomous powers. It would also place us in a position for further political evolution. Because of the democratic deficiencies, including the continued vulnerability to unilateral decisions affecting us, I do not believe that it is in our interest to maintain the status quo. Longterm planning is difficult, at best, when the rules can be changed unilaterally at any time.

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Thus, we should do all we can to replace the unincorporated territorial status with a more democratic model of governance where the power lies with the people.Barring any extraordinary political initiatives to address our political status in the next several years, however, we will observe in the year 2017 the centennial under United States jurisdiction as an unincorporated territory. The four previous efforts to draft a local constitution since the 1960s, and the three processes to deal with the issue of our political status since the 1980s, have been useful exercises, but they have not yielded a result. We therefore remain as one of the sixteen remaining non self-governing territories in the world eight years before the centennial in 2017. I have read that celebrations are being planned, as we speak. But by 2017:

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Will we remain as an un-incorporated dependency, albeit with a constitution?

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Will there be renewed emphasis on addressing the political status options, and will there be a final status determined?

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Or will we consider a dependency constitution, if successfully adopted, the end of our political development – notwithstanding the continued applicability of the Territorial Clause of the US Constitution?

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In a broader sense, are the minimum requirements of democratic legitimacy met by a political system of governance which maintains unilateral authority by a government in which the territory has no voting rights?

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Do our people have a problem with being equated with “territory or other property,” and referred to in legislation as offshore possessions, insular areas, and similar terms which are insensitive given the historical legacy of slavery?

Again, it is often better to know some of the questions than all of the answers. These are some of the questions which are fundamental to our future political and socioeconomic development. I would further ask whether our society is comfortable with the present arrangement as an unincorporated territory whose government, according to a federal court ruling, exists only by the “legislative grace of Congress?” If so, then there should be no surprise when laws, regulations and other decisions continue to be unilaterally applied, without the consent of the governed, and often against their wishes, with unknown economic repercussions. But if an awareness emerges among the people that the dependency status has become anachronistic, then much work lies ahead. In the first instance, there would have to be a process developed to sensitize the society of the existing democratic deficiencies in our present status, how these deficiencies affect us in our daily lives and how upgrading the status would benefit us, and more importantly, future generations. Our young people are watching closely.

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Such an exercise would lead to a viable, democratic model with a full measure of self-government for the 21st Century, based on internationally recognised standards of full political equality and democratic governance. Our choices are to act, or to acquiesce. We must decide, or I am afraid that our future may be decided for us. A good place to start would be in defining the ‘We.” Leba put it best in his newspaper column on this 161st commemoration of Emancipation Day when he said that “the descendents of the emancipated Africans have the duty to achieve the highest degree of self-determination and political equality.” It is only from the base of our collective Caribbean identity that will propel us toward a natural political evolution as a society. This is the next phase of emancipation, and perhaps the most challenging phase since the struggle which began in 1848. We must remove the barriers which have been artificially erected to fragment Caribbean people in our society. We must forge the strategic Caribbean alliance which is critical and essential in the building of a 21st Century Virgin Islands. We must embrace the richness of our collective identity. We can forward from there.

Atlantic/Caribbean Small Island Non Self Governing Territories (2009) Anguilla Bermuda British Virgin Islands Cayman Islands Falkland Islands/Malvinas

United Kingdom United Kingdom United Kingdom United Kingdom Subject to sovereignty dispute between Argentina and the United Kingdom)

Gibraltar

Subject to sovereignty dispute between Spain and the United Kingdom

Montserrat Puerto Rico St. Helena Turks and Caicos Islands United States Virgin Islands

United Kingdom (not formally listed by United Nations) United Kingdom United Kingdom United States

Source: United Nations Association of the Virgin Islands, 2009

Overseas Territories Report and Overseas Territories Review are publications of Caribbean Information Services, Ltd., 75853 Washington, D.C. Union Station 20013 [email protected] www.overseasreview.blogspot.com All Rights Reserved.

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