USA - Territories
By the law of nations, when citizens or subjects of one nation, in its name and by its authority or with its assent, take and hold actual, continuous and useful possession (although only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines) of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government.
The Island Areas of the United States are American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (Northern Mariana Islands), and the Virgin Islands of the United States. The U.S. Census Bureau treats the Island Areas as entities that are statistically equivalent to states for data presentation purposes. Geographic definitions specific to the Island Areas are shown in the appropriate publications and documentation that accompany the data products for the Island Areas.
Sometimes the Island Areas are referred to as “Island Territories" or "Insular Areas." For the 1990 and previous censuses, the U.S. Census Bureau referred to the entities as “Outlying Areas." The term "U.S. Minor Outlying Islands" refers to certain small islands under U.S. jurisdiction in the Caribbean and Pacific: Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Island. These small insular areas are "unorganized." That is, no legislation exists providing for organization of a local government. Indeed, these insular areas have no native population to form a government, they lack any source of fresh running water, and are otherwise inhospitable to self-sustaining habitation.
H.R.4792 — 111th Congress (2009-2010) introduced in House (03/09/2010) defined "shallow and deep seabed of the United States" as areas of the seabed contiguous to and within 200 miles of the territorial sea of the United States and the resources of which are subject to its jurisdiction or control. Includes in that definition such areas that are contiguous to and within 200 miles of the territorial sea around any inhabited and uninhabited territory or possession of the United States, including American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, the Virgin Islands, Midway Islands, the Federated States of Micronesia, Palau, Marshall Islands, Midway Islands, Wake Island, Johnston Atoll, Baker, Howland, and Jarvis Islands, Kingman Reef, Navassa Island, Serranilla Bank, Bajo Nuevo Bank, and Palmyra Atoll.
Public international law seems to recognize five ways to acquire insular areas. These are 1) cession, 2) occupation, 3) accretion, 4) subjugation and 5) prescription.
- Cession occurs when the acquiring sovereign derives its title to a new insular area by the ceding sovereign's transferring to it the supreme power over that insular area. Sovereigns can effect cession only in a treaty between the ceding and acquiring sovereigns. Cession requires possession or occupation by the acquiring sovereign. When such occupation takes place, the subjects domiciled in the newly acquired insular area become nationals of the acquiring sovereign.
- Occupation is the act of appropriation of an insular area that is not under the supreme power of another sovereign, i.e., a terra nullius. Once occupied, such a terra nullius, if later abandoned, would again be vulnerable for occupation by another sovereign. Occupation must be effective for a sovereign to acquire an insular area in this way. It must both possess and administer the insular area. Possession requires the presence of a settlement coupled with a formal act, e.g. raising the sovereign's flag, proclamation by the sovereign that it intends to keep the insular area under its supreme power. A sovereign maintains sufficient administration when it sets up some sort of supervision that exercises the functions of government.
- Accretion signifies an increase in existing land masses by new geological changes, e.g. the formation of a new island in a river. The U.S. obtained no islands through accretion.
- Subjugation takes place if a sovereign firmly establishes a conquest and follows this by a formal annexation. In order for subjugation to be effective, sovereigns must end their state of war either formally by a peace treaty or simply by ceasing hostilities. Annexation during a war does not constitute a firmly established conquest, which is a sine qua non for acquisition of title by subjugation. The U.S. obtained no islands through subjugation.
- Prescription is the acquisition of an insular area subject to the supreme power of another sovereign through the continuous and undisturbed exercise of that supreme power during such period as is necessary to create, under the influence of historical development, the general conviction that the present condition of things is in conformity with international order. A sovereign may perfect its title to an insular area by exercising peaceful and effective jurisdiction over the insular area for a prolonged period. By the rules governing the principle of good faith, prolonged inaction on the part of other sovereigns which at one time might have been in a position to contest the claims of the prescribing sovereign gradually comes to be viewed as acquiescence. Such other sovereigns are estopped from contesting the prescribing sovereign's title.
- Territory: an area over which the United States exercises sovereignty. The term is so used in Article IV, Section 3 of the United States Constitution, which provides that Congress shall have the "power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”.
- Incorporated Territory: the territories to which the Constitution is fully applicable are called “incorporated territories”. It has been held that persons born in these territories on or after the date they became part of the United States could claim U.S. citizenship under the 14th Amendment. Section 1891, Rev. Stat., stated that: The Constitution...shall have the same force and effect within all organized Territories and in every Territory hereafter organized as elsewhere in the United States
- Unincorporated Territory or Outlying Possession: An "unincorporated territory" or "outlying possession" is an area over which the Constitution has not been expressly and fully extended by the Congress within the meaning of Article IV, Section 3 of the United States Constitution.
- Commonwealth: The term "Commonwealth" does not describe or provide for any specific political status or relationship. It has, for example, been applied to both states and territories. When used in connection with areas under U.S. sovereignty that are not states, the term broadly describes an area that is self-governing under a constitution of its adoption and whose right of self-government will not be unilaterally withdrawn by Congress.
These areas of the US differ culturally, politically and economically from the average US state. Each has a distinct culture and a unique historical and legal relationship with the United States. However, many quite rightly regard themselves as much a part of the US as any state. In many respects it is only size, geography, or unusual political circumstances that have prevented them from becoming states.
In the first decade of the 20th century, in a series of court cases often called the "Insular Cases", the Supreme Court developed the rationale that, absent specific Congressional legislation or treaty provisions — The Constitution has only limited applicability to U.S. territories; and Inhabitants of territories acquired by the United States acquire U.S. nationality-but not U.S. citizenship.
Persons born in the outlying possessions may have a claim to U.S. citizenship or U.S. nationality. If an applicant has a potential claim to U.S. citizenship, that claim must be properly adjudicated and a determination of non-citizenship made before the applicant may be documented as a non-citizen national. Some statutes and treaties, such as Section 302 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands, have specified means by which persons who automatically acquired U.S. citizenship could instead opt to be non-citizen nationals. In the absence of such a provision, a person who has acquired U.S. citizenship may not choose to be a non-citizen national rather than a citizen.
In Sabangan v. Powell, 375 F.3d 818 (2004), a panel of the U.S. Court of Appeals (9th Circuit) held that two individuals born in the Northern Mariana Islands between January 9, 1978, and November 3, 1986, acquired U.S. citizenship under section 501(a) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. The court reasoned that beginning at 11 A.M. January 9, 1978 (Saipan time), when Section 501(a) made Section 1 of Amendment 14 of the U.S. Constitution applicable in the Northern Marianas Islands under Section 501(a) “as if the Northern Mariana Islands were one of the several States,” the Northern Mariana Islands were to be treated as if they were “in the United States” for purposes of the Citizenship Clause in the first sentence of Section 1 of Amendment 14. Although the Department (CA and L/CA) believed the decision was clearly erroneous, the Solicitor General’s office did not seek Supreme Court review, and it is now final.
Often there may be unintended consequences when policies designed for the 50 states are applied to the Insular Areas. A classic example was the Federal legislation that required all airport screeners to be U.S. citizens, which prevented American Samoans from being screeners at their own airport; this has since been corrected.
President George W. Bush established the Interagency Group on Insular Areas (IGIA) by signing Executive Order 13299 (Executive Order) at a White House ceremony on May 8, 2003. The IGIA was established to obtain information and provide advice regarding American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (CNMI), and the U.S. Virgin Islands (Insular Areas).
Although each of the Insular Areas is unique, they have a number of important characteristics in common. Each is an island community that is remote from the mainland U.S.—Guam, known as “America in Asia,” is the westernmost place in the U.S.; American Samoa, in the Polynesian South Pacific, is the southernmost place in the U.S.; and the U.S. Virgin Islands, in the Caribbean, is the easternmost place in the U.S. Each has very limited land resources, a small population, and a limited pool of expertise. Each is located in an area that is highly prone to destructive typhoons, cyclones, or hurricanes. Each is relatively new to self-government.
The U.S. Pacific Remote Island Area (PRIA) includes seven islands, atolls and reefs in the Central Pacific that are under the jurisdiction of the United States. Baker, Howland and Jarvis islands, Johnston Atoll, Palmyra Atoll (owned by the Nature Conservancy), and Kingman Reef lie between Hawai‘i and American Samoa . Wake Island is located between the Northwestern Hawaiian Islands and Guam. Wake is an unincorporated territory of the U.S. that is administered by the Department of the Interior (DOI) and the U.S. Air Force. All except Wake and Johnston are administered asNational Wildlife Refuges (NWR) by the U.S. Fish and Wildlife Service (USFWS) of the Department of the Interior (DOI). Johnston Atoll is managed by the Department of Defense (DOD). Wake Island (or Wake Atoll) is under the jurisdiction of DOI, and managed by DOD. Some include Rose Atoll (the easternmost of the Samoan Islands) and Midway Atoll (located near the northern end of the Northwestern Hawaiian Islands) among the PRIAs.
The U.S. claimed most of these uninhabited islands under the Guano Act of 1856. In the absence of human activities, the coral reef ecosystems of the PRIAs remained undisturbed until the early 20th century. During World War II, the U.S. constructed and occupied military bases at Johnston, Palmyra, Wake, Midway, and Baker. Jarvis and Howland were also briefly occupied or utilized during the war. With the closure of the military base at Johnston Atoll in 2004, only Wake Island remains an active U.S. military base.
In the twentieth century the United States has disputed with other nations the status of certain islands or atolls. Five (5) were in the Caribbean; twenty-five (25), in the Pacific. For purposes of discussion, one may divide these thirty (30) islands or atolls into seven groups.
(1) The status of the islands of Canton (Kanton), Enderbury, Hull (Orona), Birnie, Gardner (Nikumaroro), Phoenix (Rawaki), Sydney (Manra), McKean, Christmas (Kiritimati), Caroline, Starbuck, Malden, Flint and Vostok:
On September 20, 1979, representatives of the United States and Kiribati met in Tarawa Atoll in the northern district of the Gilbert Islands. There they signed a treaty of friendship on behalf of their two nations, an agreement which many refer to as the Treaty of Tarawa of 1979. Under that treaty the United States recognized Kiribati's sovereignty over these fourteen islands. This treaty entered into force on September 23, 1983.
(2) The status of the United States' claim to certain atolls in the northern Cook Islands, Danger (Pukapuka), Manahiki, Penrhyn and Rakahanga:
On June 11, 1980, the United States and the Cook Islands signed in Rarotonga a treaty of friendship to delimit maritime boundaries. By the terms of this treaty the United States renounced its claim to these four atolls and acknowledged the sovereignty of the Cook Islands over them. This treaty entered into force on September 8, 1983. Since August 4, 1965, the Cook Islands have been a state in free association with New Zealand. This relationship resembles very closely that which the Marshall Islands and the Federated States of Micronesia have enjoyed with the United States since October 21, 1986, and November 3, 1986, respectively.
(3) The status of the United States' claim to certain atolls in the Union (Tokelau) Islands, Atafu, Fafaofu and Nukunono:
On December 2, 1980, the United States and New Zealand signed in Atafu Atoll itself a treaty to delimit the maritime boundary between the United States and Tokelau, a New Zealand territory. As a result of this treaty, the United States relinquished its claim to these three atolls and acknowledged New Zealand's sovereignty over them on Tokelau's behalf. This treaty entered into force on September 3, 1983.
(4) The status of the United States' claim to certain atolls in the Ellice Islands, Funafuti, Nukefetau, Nukulaelae and Nurakita (Niulakita):
On February 7, 1979, diplomats representing the United States and Tuvalu met in Funafuti Atoll itself and signed a treaty of friendship. By this treaty the United States ended its claim to these four atolls. This treaty entered into force on September 23, 1983.
(5) The United States' claim to Quita Sueno Bank, Roncador Cay and Serrana Bank:
To the north of Panama and east of Nicaragua, this cluster of islands was the subject of a treaty which the United States and Colombia signed in Bogota on September 8, 1972. Under its terms the United States has recognized Colombia's sovereignty over these islands. This treaty entered into force on September 17, 1981.
(6) The United States' former sovereignty over the Swan Islands:
In relative isolation, the Swan Islands lie in the western Caribbean, ninety-five miles north of the coast of Honduras and three hundred twenty miles west of Jamaica. They consist of Great Swan and Little Swan Islands, of which neither has any dimension of more than about two miles. In 1863 the area was certified as islands appertaining to the United States under the Guano Islands Act of August 18, 1856 (Title 48, U.S. Code, sections 1411-19), and guano operations were carried on there for many years.
The United States' later interests in the Swan Islands involved agricultural production in coconut plantations and aids to navigation and communications, resulting in continued United States occupation and use of the islands. In San Pedro Sula, Honduras, on November 22,1971, American and Honduran representatives signed a treaty by which the United States recognized Honduras' long-standing claim to sovereignty over the Swan Islands. The treaty entered into force on September 1, 1972.
(7) The United States' former administration of the Corn Islands:
Made up of Great Corn and Little Corn Islands, the Corn Islands lie about thirty miles off the coast of Nicaragua. They never were a U.S. insular area, that is, under the sovereignty of the United States, but were leased from Nicaragua for a period of ninety-nine years under the Convention of Washington, D.C., of August 5, 1914. The terms of the lease made the Corn Islands subject exclusively to American laws and administration. However, with the United States' acquiescence, the Government of Nicaragua directed the islands' local administration. The United States' right to the actual or potential use of the islands remained unimpaired until April 25, 1971, when the lease was officially terminated and the Convention of Managua of July 14, 1970, entered into force.
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