What Does Geography Have To Do With It?
U. S. Laws & Regulations And The Economy For many years my intuition has taunted me about the applicability of some of the laws and regulations designed for the fifty United States and applied “across the board” to a geographically isolated group of islands, particularly those laws related to the economic development process in the Northern Marianas.
For those of us living in the Pacific as well as the lawmakers in Washington, the jet can frequently abuse one’s sense of geography. This marvelous technology has contributed to distorting the concept of time and space to the point where neither means much anymore. It’s a little like, “where ever you go – there you are.” It hasn’t been too many years ago, before the use of commercial jet aircraft, that travel from Hawaii to these isolated islands required many exhausting hours. In the early fifties a flight from Honolulu to Wake Island required about nine and one half hours from Wake to Saipan was still eight hours further.
Even today sheer distance and the time involved in traversing the Pacific are factors which must be taken into consideration when scheduling travel. The Commonwealth is about as far away from the U. S. west coast as, for example, Washington, D. C. is from Cairo, Egypt. Since the International Date Line is between Hawaii and the Mariana Islands, as a consequence of this geography, at no time do normal business hours on the United States east coast coincide with those of the Commonwealth. Indeed, our telephone communication with the U.S. west coast and Hawaii, when conducted during normal business hours and work days, can only take place 4 days a week or between Tuesday and Friday (from the CNMI ), Monday to Thursday (from the U. S.).
I started thinking about this “geography of isolation” in relation to the issues confronting the Commonwealth with respect to the concern of some in the United States Congress who advocate the imposition of the U. S. minimum wage and federal control of immigration in addition to all other laws that currently apply. I’m not suggesting that laws covering criminal activity are inappropriate to the islands and they be abandoned – far from it – rather I’m concerned about the application of some laws and regulations effecting the process of development that were promulgated to eliminate or mitigate a problem somewhere within the contiguous forty eight states, Hawaii and Alaska. Laws and regulations which may not be all that appropriate for an island situated about as far away from the United States as one can possibly be while still being affiliated with the greatest flag in the world.
Can an island situated a distance of 5,300 miles from the United States west coast achieve and then maintain economic self sufficiency while under such a plethora of U. S. designed regulations applied to an island area of 176 square miles of which little over one half is inhabited? The Marianas are situated about as far from its national metropolis as possible while being associated with a nation virtually on the other side of the world, one with a body of laws promulgated for an entire continental land mass; situated in a different Hemisphere on the other side of the planet’s largest body of water and one consisting of 249 million people and an area of 3.5 million square miles. This is 29,700 times larger than the Commonwealth, (not considering the ocean area). The islands, are a western oriented culture located in the Eastern Hemisphere and are about as far west of the United States as you can get and still remain under the flag. In terms of direction, the islands are so far west that you are actually east which means that when you think you are going – you are actually coming – which also accounts for the confusion.
They are as distant as Tokyo or Melbourne and about the same distance north of the equator as Manila. The Mariana Islands are 9 time zones west of Washington D.C.; 6 zones west of San Francisco and 4 zones west of Honolulu. To provide some appreciation of the size of the Pacific, the flying time between Saipan and Honolulu is about seven hours. This portion of the Pacific alone is greater in distance than that of the Atlantic Ocean between the United States east coast and Europe.
Well, you say, look at the Territory of Guam where all United States laws apply including the U. S. minimum wage and federal immigration – that island survived. Why can’t the Commonwealth survive under the same rules? Good question. Guam has always been an important national asset and thus the beneficiary of military largess and benevolence. The geographic location of the Marianas is such that the islands sit astride the Great Circle Sailing Route (shortest distance) between the Strait of Malacca at Singapore and the Lombok Straits in Indonesia. These are the passages through which super tankers and their vital cargo of oil from the Persian Gulf must travel enroute to the United States west coast and the ports of its Japanese ally and trading partner.
Guam has figured prominently in the geopolitical fortunes of America’s Asian adventures since being acquired during the Spanish American War. It has maintained the interest of the military ever since and was used as a base of operations in World War II, the Korean Conflict and the Vietnam war. On the other hand, Saipan and Tinian have not been considered military assets worth developing since 1944 except for a brief period in the late fifties when the Central Intelligence Agency conducted covert training activities on Saipan under the auspices of the Naval Tactical Training Unit. So, in terms of expenditures by the military to develop Guam’s infrastructure, that island has had an advantage over the Northern Marianas and I imagine, was able to afford to pay the U. S. minimum wage and even higher levels since much of the infrastructure improvements were funded by the military under standard mainland military contract rules which applied the minimum wage level or more, (American labor unions saw to that).
Once the wage level was established there was no problem in recruiting off-island American labor to migrate to the island. On Guam, one matter solved the other. Still that does not answer the question as to whether all U. S. laws should apply in the CNMI? I refer to the full, and I stress he word ”full”, spectrum of laws and regulations administered by such agencies as: the Corps of Engineers, Environmental Protection Agency and laws governing marine resources and shipping and a library of others that you may never have heard of along with many more related to economic development, until you do something out of line.
For example, as a result of regulations promulgated by the Occupational Safety and Health Administration, (OSHA), a company was once admonished because it failed to list a bottle of window cleaning material on a list posted to inform the public about hazardous materials. In the Commonwealth that regulation would have to be posted in no less than seven languages. I want to emphasize that many of the laws are helpful, desirable and necessary – while others may not be entirely appropriate for the islands. As I listen to people, I note their concern over the environment, the erosion of the area's cultural identity, the need to maintain local traditions and these concerns are certainly justified — but there can also be some desirable tradeoffs as the economy develops.
As personal income rises – so does improved standards of living; modern medical care, opportunities for travel and the educational benefits that accrue there-from as well as many other worth-while benefits as a result of the "trade-offs.” It would certainly be a wonderful world if we could have everything we want – "have it both ways" – so to speak but, unfortunately, it rarely works out that way. Certainly the environment should be protected but everything man does effects his surroundings in some way. You can't build a house without effecting the environment. But environmental "purists" working thousands of miles away in the United States, many of whom have never lived within an island environment, promote laws in Congress that support their agenda. I suspect that many of these laws and regulations are designed to continue their employment within enforcement agencies. They have government funds to support their entrenched positions and are not readily prone to accepting the fact that "trade- offs" have to be accepted. If you build a hotel – you modify the environment, . . . when you sacrifice a bit of pristine sea shore you gain jobs, tax revenues, profits, etc.
That is the trade-off. I maintain that if the United States had to develop in 1776 under the laws that now prevail in the Commonwealth, American might still be a colony of England. Which Laws Apply and Which Don’t – Who Knows? The Commission on Federal Laws reviewed the laws of the United States and made recommendations to the United States Congress as to what extent and in what manner the laws of the United States should be made applicable to the Northern Marianas. The Commission's report: “Welcoming America's Newest Commonwealth, The Second Interim Report of the Northern Marianas Commission on Federal Laws to the Congress of the United States", August 1985, Vol. 1 and the Documentary Supplement established a two -tiered test for determining the application of certain federal laws in the Commonwealth. The questions to be applied to such federal laws are: (1) Is the law necessary and proper for carrying out the terms of the Covenant? and (2) Will such a law interfere with the right of self government over local and internal matters which have been reserved for the people of the Commonwealth? The Northern Mariana Islands is the first territory to become a part of the United States political family, not by purchase or conquest, but by negotiation between its own representatives and those of the United States followed by popular vote of its inhabitants. In examining which federal laws should apply, the Commission addressed the Covenant only as to the applicability of the federal laws most central to the definition of the new political relationship. Even with those laws, only general principles were established – the detailed provisions were left for later examination. For other federal laws, a rule of thumb was established – laws applicable to Guam should also apply in the Northern Mariana Islands, at least for the present. In its general recommendations, the Commission urged that the Covenant, although having the status of a federal statute, be afforded a special deference in keeping with its constitutional importance to the people of the Northern Mariana Islands.
Only when there is clear and convincing evidence of congressional intent to override Covenant provisions on the applicability of federal laws should a federal law be found applicable to the Northern Mariana Islands when the Covenant says it should not be, or should a federal law be found inapplicable to the Northern Mariana Islands when the Covenant says it should apply. It should be kept in mind that the Commission responsibility was to recommend to Congress which laws should be made applicable to the Northern Mariana Islands. The report states: "The Northern Mariana Islands does not now have, nor will it have on termination of the trusteeship, full access to the political processes that establish national government policy. United States citizens residing in the Northern Mariana Islands are not entitled to vote for President or Vice President of the United States. The Northern Mariana Islands are not represented by voting members in the United States Senate or House of Representatives." "The inhabitants of the Northern Mariana Islands are among the most vulnerable of all groups to the operation of the "majority process" at the national level. They comprise less than one hundredth of one percent of the national population. They live more than three thousand miles from the nearest state of the United States, Hawaii. Their traditional culture is distinct. Their per capita income is much below average per capita income in the poorest of the fifty states.”
My review of the 1995 census revealed the Commonwealth's total population of 58,846 ranked fifty third (53rd) among the fifty four (54) states and territories in its per capita income level of $6,984. This is a decline from the $7,199 per capita income recorded in the CNMI's 1990 census of population. It is lower than that of the Virgin Islands ($11,052 -'94); lower than Guam ($7,116 – '94) and exceeds Puerto Rico's per capita income of $6,360 ('94) by only $624. The situation in the Commonwealth relative to which United States laws apply and those that do not remains confusing. Do not expect to learn if a federal law applies or not by making an inquiry to the U. S. Department of Justice on Saipan. Federal attorneys provide legal advice to agencies of the United States Government. Questions as to the applicability of a federal law as related to the CNMI should be presented to a private attorney licensed to practice in the Commonwealth.