Fifth Constitutional Convention of the Virgin Islands

# 1 Lagoon Street Complex, Legislature Building,

Frederiksted, Virgin Islands 00840

StX Tel: 340-712-2229 Fax: 340-718-8661

Statement by Gerard Luz Amwur James II

President

Fifth Constitutional Convention of the U.S. Virgin Islands

to the

United Nations General Assembly

Fourth Committee

United Nations Headquarters

New York, N.Y.

October 6, 2009

Check Against Delivery

Statement to United Nations Special Committee on Decolonization

Thank you, Mr. Chairman,

My name is Gerard Luz Anwur James II, and I am the President of the Fifth

Constitutional Convention of the US Virgin Islands, elected by the people of the territory

from all four islands. I have the honor to address this Committee on the adoption last

May by our Convention of a draft constitution for consideration by the administering

power.

This was the fifth attempt by the US Virgin Islands to draft a locally written constitution

to replace the Revised Organic Act of 1954, written for the territory by the administering

power, and which continues to be amended incrementally. The present draft constitution

was submitted on May 31st of this year to the elected governor, who was to have

forwarded said document to the administering power for review, with the authority to

modify it or amend it, “in whole or in part.” The document would then be returned to the

territory for a referendum, similar to the process in 1980 where the final document was

not approved by the voters at that time.

It is important to advise this august body that the present process has been short-circuited

when the governor of the territory took the unilateral decision not to transmit the draft

constitution to the administering power, according to the law, based on the contention

that some of the provisions might not be consistent with how the US Constitution is

applied to the territory. The Fifth Constitutional Convention has filed suit in the Superior

Court of the territory to mandate that the governor transfer the document, as specified by

law. We must await the decision of the court before the resumption of the constitutional

process.

It should be emphasized that the local constitutional process is not designed to alter the

present non self-governing territorial status, but merely to “organize its internal

governance arrangements” as accurately stated in General Assembly Resolution 63/108

of 5 December 2008. Thus, if our constitution is subsequently adopted in referendum, this

does not serve as the basis for removing the territory from the UN list of non self-

governing territories, since the status of the territory would not have changed. The

provisions in the draft constitution, including those which the governor has found

objectionable, are best reviewed for US constitutional consistency by the administering

power based on its determination of what is allowable under the present dependency

status. The elected members of the Convention have placed in the document a structure

of governance to which it is the responsibility of the administering power to review, and

to respond. We look forward to this engagement.

In this connection, I wish to emphasize that the entering into force of a new constitution

based on the present status, in the language of our draft constitution, “shall not preclude

or prejudice the further exercise by the people of the (US) Virgin Islands of the right to

self-determination regarding the attainment of a permanent political status.”

In this regard, several attempts were made between the 1980 and 1993 to decide on a

permanent political status through successive governmental commissions and

committees. Our only referendum on political status was held in 1993, but as indicated in

relevant General Assembly resolutions, an insufficient percentage of voters participated

for the result to be valid. The present non self-governing status, therefore, remained – and

remains - unchanged.

Mr. Chairman,

It is important to reveal that the work of the present Constitutional Convention has been

impeded by a lack of resources. This has caused several inordinate delays in the drafting

process, as well as in the initiation of the critical public education phase of our work. A

similar resource deficit existed for the 1993 political status referendum process, as

explained to the Decolonization Seminar in St. Kitts last May by the international

political advisor to our Convention.

As this committee is aware, a 2008 request by our Constitutional Convention for

assistance from the administering power was denied. In this connection, we welcomed

the adoption of Resolution 63/108 last December which requested the administering

power and relevant UN organizations to assist the territory’s public education program,

consistent with Article 73(b) of the United Nations Charter which mandates such

assistance. We trust that the commitment made in the resolution, which is also included

in the present draft resolution under your consideration, would be expeditiously

implemented since the educational component is critical to the process. If the

administering power is not forthcoming with the requested assistance in support of our

constitutional evolution, we ask them to facilitate our access to United Nations electoral

assistance similar to that provided to other territories such as Tokelau, Sint Maarten the

former Trust Territory of the Pacific Islands and others.

In any case, assistance from any quarter is vital given the degree of mis-interpretation in

public discussion based on incomplete and sometimes misleading reports. The lack of

resources for our Convention prohibits us from mounting the required public education

program to counter the mis-information. In this regard, the relevant provisions of the

draft constitution include:

• A bill of rights

• A structure of the various branches of internal government

• The mandate for establishment of decentralization of government

• Free and compulsory education, which “preserves the African history,

culture and traditions of the people,” and which creates eligibility criteria

for free tertiary education

• The control of the natural resources by the people of the territory,

including the marine resources and submerged lands, as well as the

protection of the environment, pursuant to longstanding United Nations

resolutions

• The preservation of culture

• A mechanism to make recommendations on the future political status of

the territory based on the legitimate political status options of integration,

free association and independence, consistent with General Assembly

Resolution 1541.

Mr. Chairman,

A major area of public discussion on the draft constitution relates to the definition of a

Virgin Islander. According to the 1917 treaty, through which the territory was purchased

by the United States from Denmark, the political rights and citizenship of the inhabitants

of the territory at the time of transfer would be determined by the US Congress. The

citizenship of these persons at the time of the transfer who were mainly, but not

exclusively, comprised of former enslaved Africans and their descendents, was not

determined until ten years later.

Thus, the provisions of the draft constitution defining Ancestral Native Virgin Islander

was based on the laws of the administering power emerging from that period (See Section

306 INA (8 U.S.C. 1406). It is also consistent with the definition of native populations in

the constitutions of other non self-governing territories in the Caribbean and the Pacific.

A second section of the draft constitution provides a broader definition of a Native Virgin

Islander as having been born in the territory, or a descendent of a native born person. The

importance of the reference to Native Virgin Islanders in the constitution is highlighted

by the fact that the native-born population in the territory is on the decline, with the

percentage in 2005 at about 51.3 % according to a 2007 University of the Virgin Islands

study. This decline has significant implications for the self-identity of the people.

The draft constitution also provides that only Ancestral or Native Virgin Islanders be

eligible to serve as governor and lieutenant governor, and as members of a future political

status advisory commission. Additionally, a provision to exempt Ancestral Virgin

Islanders from paying property tax has been inserted. This is due to the fact that

significant externally motivated land speculation continues to result in the major loss of

property by the native population. This provision of the draft constitution is consistent

with relevant General resolutions, most recently operative paragraph 9 of General

Assembly Resolution 63/108, which calls for all necessary steps to be taken to protect the

property rights of the peoples of the territories.

It is these and related provisions which appear to be objectionable to certain interests, but

similar native rights' provisions are part of constitutions of other US-administered

territories, (such as American Samoa and the Northern Marianas, both of which have the

same unincorporated political status as the U.S. Virgin Islands). We would wish to know

why such provisions would be applicable to some territories, but not to others.

To conclude, Mr. Chairman,

We are confident that, notwithstanding the present delay, the draft constitution will be

ultimately forwarded to the administering power for assessment, as in the case of other

draft constitutions before it. In the end, we recognize that under our present political

status the administering power alone will determine the final content of the document

based on its unilateral applicability of laws to our territory. Thus, the delay in the process

is especially troubling, and prevents the people of the US Virgin Islands from gaining a

better understanding of the parameters of the dependency status as defined in the 21st

Century. We are confident, however, that the political obstacles will be cleared from our

path so that we can take this next step along the path towards a full measure of self-

government.

Thank you, Mr. Chairman.