The Impasse

Our story begins more than 50 years ago with the passage of United Nations Resolution 1541 (XV).

This UN Resolution, essentially sets out the recommended principles of education regarding options which any remaining territories held in the post-colonial era should have in determining their own fate.

Principle 1 of the 15 December, 1960 resolution states: “An obligation exists to transmit information…in respect of such territories whose people have not yet attained a full measure of self-government.”

Further principles contained in the resolution indicated that once a territory achieves a “full measure of self-government”, this educational obligation would end for the former colonial power.

The United Nations resolution presented three options for territories that could be said to have reached full self-government. Those were; emergence as a sovereign independent state, full integration with the former colonial power, or free association with the colonial power.

It is the view of one Caribbean-based constitutional expert that the United Kingdom has not offered, or even attempted to educate its remaining overseas territories on, two of the three options presented by the UN.

“The whole process of self-determination [for the territories] was not met by the Constitutional Orders that were given to the territories,” Dr. Carlyle Corbin says. “In some respects, they were able to gain some important concessions…but the UK’s maintaining reserve powers and all of that is inconsistent with democratic governance.”

For its part, the UK does not view the UN resolution regarding its remaining overseas territories as binding and in any case it notes the territories – including the Cayman Islands – have not sought to be anything other than territories.

The UK also believes that its constitutional revision process has effectively met UN recommendations. That process began with the remaining territories in 1999 and ended with a redrafted Cayman Islands Constitution Order in 2009, approved by a majority of voters.

“[The UK] considers…the UN list of non-self governing territories to be outdated and remains of the view that none of its overseas territories should remain on the list,” according to a position paper the UK’s Foreign and Commonwealth Office presented in May 2008 at a regional seminar in the Pacific.

The Cayman Islands, for its part, has never formally sought or advocated for a change in its territorial status and in fact advised the UN last year that it was not seeking independence from the UK.

The impasse regarding governance issues continues to the present day.

Options

According to the initial UN resolution, option A, independence, and option C, integration, are fairly straightforward.

Independence means a clean break with the former territorial administrating power.

Integration means the former territory would be absorbed into its old colonial power.

In both cases, the UN states those choices “should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes,,,,”

It is option B, free association, which has caused some consternation among the territorial governing powers.

Free association is defined by the UN as follows: “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. This does not preclude consultations as appropriate or necessary…”

A free associative state should also be chosen by the people of the territories and agreed to with the governing power. It should “retain…the freedom to modify that status” according to the UN resolution.

None of the remaining UK overseas territories have entered into a free associated state with the governing power. Corbin says examples of free association do exist in the modern world, for example, in the governing arrangements between New Zealand and the residents of Cook Islands or Niue Island.

Britain’s view

The UK, in its 2008 position paper, states there is “regular dialogue” between British government ministers and the territorial leaders in wide-ranging areas of mutual interest. There are typically yearly councils between the UK and its overseas territories during which governance issues are discussed.

“The United Kingdom’s policy towards the overseas territories rests on the basis that it is the people of each territory who determine whether they wish to stay linked to the United Kingdom or not,” the paper stated. “The United Kingdom has no intention of imposing independence against the will of the people concerned.”

But the UK clearly states that independence or remaining a territory is the only two options it will allow.

“The United Kingdom policy is not to agree to integration, and nor is there any indication that any of the territories are seeking this,” the 2008 position paper states.

The UK representatives also set out their reasons for opposing free associative states.

“The concept of free association, as defined by the UN General Assembly, would mean that the territory itself would draw up its constitution free from United Kingdom involvement,” the 2008 position paper states. “The United Kingdom would retain all responsibility for the territory, but would not be able to ensure that it had the powers necessary to meet its responsibilities for the territories.

“This is not a position the United Kingdom is willing to put itself in.”

The UK also notes that the UN resolution from 1960 is not legally binding and neither did the UK representatives vote in favour of it at the time.

Corbin believes that the concept of free association, as set down in 2008 by the UK, has been “misconstrued”.

“[Free association] does not require these kinds of commitments or contingent liabilities,” Corbin says. “There are very clear sets of responsibilities which are constantly being reviewed [under free association].”

Of the remaining British overseas territories, the one that comes closest to achieving a free associative state is Bermuda in the Atlantic, Corbin says.

However, he notes that the UK retains certain reserve powers which can be enacted by Orders-in-Council at any time.

[Bermuda] is certainly more autonomous, but it doesn’t rise to the level of self-determination,” Corbin says.

A “classic case” of this occurring recently, Corbin says, was within the Turks and Caicos Islands in the eastern Caribbean where the UK has now suspended the constitution and has set up a provisional government.

Cayman’s choice

Cayman’s 2009 Constitution Order – approved by a strong majority of voters – took effect in November 2009, although some sections won’t be law until 2012 or 2013.

It created – for the first time – a situation where only elected representatives in the Legislative Assembly can vote on issues. Previously, the chief secretary, financial secretary and attorney general, as appointments of the governor, were allowed to vote on laws.

Cayman’s appointed governor still retains overall responsibility for law and order, as well as management responsibility for the civil service.

The country has never held a vote, as would be required by the UK, to seek independence from its former colonial power, and that does not seem likely occur under the current administration.

In May 2010, local attorney Steve McField attended a UN decolonisation conference on behalf of Cayman Islands Premier McKeeva Bush to indicate that Cayman’s people did not wish to seek independence from the United Kingdom.

Bush’s government also rejected an apparent offer from the UN to host its annual regional seminar on decolonization here at the end of May.

The proposal from the UN created something of an embarrassing diplomatic situation, where local officials indicated the world governing body had “jumped the gun” in announcing the seminar.

The meeting is now set for late May or early June elsewhere in the Caribbean.

The local advocacy group People for Referendum has long requested that UN and UK officials host such a conference here to educate the local populace on their governance options as a British Overseas Territory.

The group has also publicly feuded with UK Foreign and Commonwealth representatives, who it believes is improperly denying Cayman any options aside from independence.

“Governance education in the non-self-governing territories is generally very poor and holding these meetings in the [territories] is one way to education the public on their governance system, thereby enabling the electorate to make informed decisions in elections and referendums,” said group chairman Dennie Warren, Jr.

Corbin agrees.

“Public education on the [UN] options…which all of the administering powers have agreed to do but have never undertaken…is something that is perceived as being inconsistent with what their obligations are,” he says. “However, there is no mechanism to force them to do this.”

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