The Commonwealth’s Evolving Relationship With The United States Government And The Section 902 Talks
There has been some discussion recently about Section 902 consultations. Section 902 is a provision in the agreement between the Northern Marianas and the United States Government, (the Covenant), that permits a reassessment of the relationship every 10 years.
A relationship which is still evolving and one wonders if it ever will be resolved to the mutual satisfaction of both parties. I have been told that the full extent of the political relationship of the Northern Mariana Islands with the United States of America and many of the details pertaining there-to are largely unknown and imprecise at this time.
This results in part because the relationship during the early stages of negotiation was not defined in any detail and also stems from the fact that no other member of the American political family became so associated under circumstances even remotely similar to those by which the Northern Marianas became affiliated with the United States.
So there is little precedent for a guide. Semantics aside, if that’s possible, talk to two different people and you are likely to get two different interpretations of a particular issues. Not even the nexus between the Commonwealth of Puerto Rico can provide much insight as to the extent and scope of the CNMI's Covenant agreement. The issue is very much unsettled and it may even be somewhat disconcerting to some when it is discovered that even many students of the American legal structure will not venture to define what U.S. laws prevail in the islands and those that do not. Students of political science are uncertain of the connection with the result that there is confusion because of the many unresolved issues in this unique and complex relationship.
There are those in the Commonwealth that wish to retain as much political and internal autonomy, indeed, independence from the federal government and some American laws as possible. How and when a determination will be made and a method devised to clear up the legal and political ambiguities which remain in this sometimes awkward political affiliation is a subject of conjecture and will no doubt remain so until resolved at the highest level of the American judicial system, presuming, of course, that a sufficiently justified issue is brought before the U. S. Supreme Court and the Court decides to hear the case.
As mentioned above the CNMI /US relationship is confused because it is still in the process of evolving. It is probably safe to state that the people of the Northern Marianas did not clearly understand what they voted to support when the plebiscite was held in June, 1975 to accept a negotiated Covenant with the United States. Certainly they were aware of some of the tangible benefits that would flow from the U. S. Treasury such as better health care, social security, emergency disaster relief, educational assistance, etc. However, there was probably little knowledge or appreciation of the extent of the full ramifications of an association with the federal bureaucracy – for better or worse – with its myriad of laws and regulatory agencies administering everything from environmental protection to occupational health and safety in the work place.
Thus, the process of learning the unanticipated unintended consequences of the merging relationship with the United States, by necessity, continues to evolve and be refined as time goes by. At the time of the agreement many of the complex issues which were to arise in the future could not possibly have been foreseen in 1975 and thus a document was produced to permit flexibility in the new political relationship. A few years ago the Assistant Secretary of the U. S. Department of Interior stated: "Freedom to choose a political status carries with it the responsibility, first, to make an informed choice and second, to live with the benefits and responsibilities of that choice." Further the official stated,"for insular leaders to argue that what they freely chose 15 (sic) years ago is not what they thought they were choosing is a criticism of those who chose, not those who offered the choice. It is clear from the plain English of the historical documents involved that the United States has sovereignty in the Commonwealth … sovereignty is not conditional and does not lend itself to subject applicability." Some people in the islands exhibit great sensitivity over issues they perceive could involve interference by the federal government where matters of self government are concerned.
Many are quick to react to the possibility of federal infringement within areas considered to be the prerogative of local government. Much of this concern, among other issues, relates to whether or not the U. S. Government has the authority to monitor and, indeed, audit the use of funds provided under the Covenant. Several agencies of the Commonwealth contend that the people of the Northern Marianas did not give the United States the authority to interfere in the process of self government and that U. S. authority is limited to that spelled out in the Covenant. In the past some of the unresolved issues subject to consultations related to Section 902 of the Covenant which established the relationship between the CNMI and the United States concerned the following: – The extent of the CNMI's rights of self government as opposed to those of the United States and American sovereignty over the islands vis – a – vis the extent or degree of Commonwealth autonomy ; – The right of the federal government to oversee the manner and method internally generated revenues funds are managed in the CNMI; – Other issues concerned trade barriers to the entry of some CNMI products into the U.S.; regulation of the banking industry; CNMI participation in international negotiations affecting the islands (other than those involving U. S. foreign and military affairs), for example, CNMI participation in U. S.- Japan bilateral air discussions when such talks affect the Commonwealth and receipt of economic and technical assistance from foreign countries, specifically Japan.
The Commonwealth Government has attached great importance to resolving these outstanding issues and has appointed its highest officials to negotiate with the federal government. In May,1989 officials of the Commonwealth appeared before the United Nations' Trusteeship Council and accused the United States of asserting " imperial territorial claims" over the Commonwealth by trying to turn the islands into a colony. The members of this group urged the United Nations to continue to maintain control over Micronesia until the United States granted full self government. Again, in May, 1990 the CNMI"s Trust Termination Task Force presented their position before the United Nations that the Commonwealth disagrees with the United States as to its rights under international law.Thus, more than a dozen years after achieving Commonwealth status in affiliation with the United States there was still some confusion as to the extent of the relationship and the degree of self government and autonomy the CNMI could exercise.
With few exceptions, the quid – pro – quo of the association was not reduced in writing beforehand with the result that the two bureaucracies require an inordinate amount of time and effort to reach agreement on many of the remaining unresolved issues. For those not a party to the negotiations – and from the sideline – it often appears that the United States negotiators pretend that the islands are the equivalent of a U.S. territory – while the Commonwealth maintains it is sovereign territory with few limitations. By mid 1991, and after ten sessions of the "902 consultations", the United States negotiator admitted that he had no authority to renegotiate certain issues and that the Commonwealth should either pursue a resolution of the outstanding issues with the U. S. Congress or seek a federal court ruling. In July, 1991 the Commonwealth Government responded to the U. S. Congress Subcommittee on Insular and International Affairs relative to the Commonwealth's views on the following questions: – "Is the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America a treaty?" and – "If the Covenant is a treaty, does the Territorial Clause (1) of the United States Constitution apply to the Northern Mariana Islands?" It was the position of the Commonwealth Government that: – "The Covenant to establish the Commonwealth of the Northern Mariana Islands has the legal status of a treaty; – The United States entered into the Covenant to satisfy its obligations under the Trusteeship Agreement for the former Japanese Mandated Islands; -The Northern Marianas was not under the sovereignty of the United States when the Covenant was approved; the Government of the United States entered into the Covenant pursuant to its constitutional power to conduct foreign affairs; – The language of the Covenant is language of agreement, not the language of legislation; – The Covenant was negotiated and approved as an agreement not as a public law; – The Federal Government has recognized that the Covenant has the legal status of a treaty; – The Covenant does not make the plenary (absolute) powers of the Territorial clause of the United States Constitution applicable to the Northern Mariana Islands; – The United States did not grant the people of the Northern Mariana Islands their right of self-government by approving the Covenant; the people of the Northern Marianas reserved those rights when they approved the Covenant; – By the Covenant's own terms, the plenary powers of the Federal Government under the Territorial Clause are not applicable to the Northern Mariana Islands; – The Covenant was negotiated and agreed to in order to satisfy the obligations of the United States under the United Nations Charter and the Trusteeship Agreement; application of plenary powers of the Federal Government under the Territorial Clause to the political union between the United States and the Commonwealth is not consistent with those obligations; the Covenant must be construed harmoniously with the fundamental documents that permitted its negotiation and approval; – Specific grants of legislative power to the Federal Government in the Covenant would be superfluous if the Federal Government had plenary powers to legislate under the Territorial Clause; the Covenant must be construed to give effect to each of its provisions and not to render provisions superfluous; – Section 101 of the Covenant, reciting that the Commonwealth is under the sovereignty of the United States is not a grant of Territorial Clause powers to the United States; – The Territorial Clause is not necessary to provide the Federal Government with constitutional power to enact legislation necessary and proper to implement the Covenant; – Contradictions between the plain language of the Covenant and statements in the negotiating history reflect a purposeful ambiguity that resulted from the failure of the parties to agree on the applicability of the Territorial Clause to the Commonwealth; – Ambiguities in the Covenant are to be resolved in favor of the Commonwealth; – International law requires United States recognition of the mutually binding character of the Covenant; – The Covenant controls the relationship between the United States and the Commonwealth of the Northern Mariana Islands; – The constitutional powers of the Federal Government with respect to the Northern Mariana Islands are limited by the terms of the agreement that brought the Northern Mariana Islands into the American political family; – The Government of the United States has the power to enter into a mutually binding agreement that, among other things, reserves and guarantees self-government to an area not under the sovereignty of the United States in order to bring that area into the American political family."
The report stated in conclusion,"For the foregoing reasons, it is clear that the Covenant has the legal status of a treaty and that it does not make the Territorial Clause of the Constitution applicable to the Commonwealth of the Northern Mariana Islands. The Federal Government clearly entered into a lawful and mutually – binding agreement with the people of the Northern Mariana Islands to bring them into the American political family. The Federal Government just as clearly does not have the power to alter the terms of that agreement without the consent of the people of the Northern Mariana Islands." Currently the position of the United States remains the same, namely, that the Territorial Clause does apply to the Commonwealth. As a member of the American family of states, territories and semi-autonomous entities, the Commonwealth, situated on the doorstep of Asia is host to thousands of citizens of Asian nations which are allies, trading partners and friends of the United States.
For some who visit, either as tourists or nonresident workers, the islands will be the only contact many will ever have with the American way of life, its form of government and democratic principles. The treatment extended these people while they are in the islands will make a lasting impression on many. To this extent the CNMI exercises no small degree of influence in partially shaping the reputation of America around the Pacific rim and its human rights record. ……………………………………………. (1) The Territorial Clause is actually Article IV, Section 3 C-1.2 of the United States Constitution. Some in the Commonwealth believe its application in the Commonwealth would, in effect, give the U.S. Congress the right to act as the federal government and also the equivalent of the local legislature thus abrogating the Commonwealth's right of self government.
This would conflict with Section 103 of the Covenant which guarantees the Commonwealth the right of self government over local and internal affairs. Note: William Stewart is an economic historian interested in documenting the NMI’s post World War II economic history and would be the first to admit that he is not conversant in Constitutional law and its interpretation.