Written by Benjamin Owen
Asymmetrical relationships of power have been at the heart of colonialism since the European conquest of the New World. Five hundred years later, what today constitutes a colonial relationship and how this translates into institutional practice has expanded to encompass a broader gamut of examples. Two turning points are central in this regard: (i) the advent of the United Nations in 1945, whose Charter’s Article 73 formalised the debate at an international level (UN Codification Division Publications, 2016), and; (ii) the polysemy of ‘colonialism’ as a popular pseudonym for social (in)justice within critical twenty-first century perspectives. In the latter case, the word has discursively come to encompass discrimination in a whole host of different societal settings, and especially when these are perceived to be coupled with a discontinuous national past.
Whilst institutional and critical perspectives are inextricably linked, of particular interest to this article are the vestiges on the level of the nation state. Formally speaking, the United Nations’ efforts at institutional decolonisation converge on colonial possessions-proper: Non-Self-Governing (NSG) territories ‘whose people have not yet attained a full measure of self-government’ (U.N. Charter, Chapter XI, Article 73). Representing almost one third of the total world population at the creation of a preliminary list in 1946, one need not be an expert in international geopolitics to see the elements of colonialism still etched onto today’s world map. The United Kingdom is of unusual concern in this regard, representing the ‘administering power’ with the highest number of non-nations under its sovereign control. From South America and Spain to Asia and the Caribbean, an elusive group of fourteen microscopic blips lurking in tiny typefaces are thus all duly followed by the parenthesised letters ‘U.K.’, signifying their legal, political, and economic adhesion to the remnants of the former British Empire. Insofar as Westminster is concerned, these are the modern-day British Overseas Territories: parcels of land belonging to the United Kingdom, yet decidedly not the United Kingdom. With their own taxation laws, elected assemblies, and local currencies, each one functions de facto as a state unto itself in many respects: albeit with British sovereign oversight in elements of foreign policy, defence, and law-making (Hendry & Dickson, 2011). This matters because the relationship between the UK and its Overseas Territories is founded upon a highly controversial history. Born in many cases out of self-serving foreign policy and military interventions (ibid.), the unique situation of these territories was brought to international attention in the 1982 conflict befalling the Falkland Islands (or Las Islas Malvinas) and to this day remains current, as proven by the case of historic human right abuses in the Chagos Archipelago (Harding, 2021).
The author of this article has the peculiarity of being born in one of these non-nations. Famous for its Wahoo fish and triangular namesake, Bermuda is, however, no paradise home in the sun. Over eighteen years have passed since a fatal hurricane saw families including the author’s own leave the country, and obtaining any official document fit for use abroad is bureaucratically difficult for non-residents. Unlike the notion of an indivisible « peuple français » (Lemaire, 2012) which englobes mainland France as well as the territories of New Caledonia and French Polynesia – territories also featuring on the UN’s NSG list – British nationality law additionally makes a clear-cut distinction between British Citizens and British Overseas Nationals. No true freedom of movement exists between the United Kingdom and its Overseas Territories, only complicating the relationship (Home Office, 2017).
The complications of Bermuda nonetheless go far beyond personal paperwork and mobility. Similar to the Commonwealth, La Francophonie, and other institutions that emerged in an era of unchecked Western hegemony, the very institutional concept of the British Overseas Territories is today being challenged to the point of existential crisis. Whereas Bermuda’s decades-long inclusion in the aforementioned UN list has long exerted pressure upon the United Kingdom to address its allegedly colonial political structures at an international level, the last twelve months have brought a series of events plunging British and Bermudian institutions into two thorny legal disputes. When read comparatively, the consequences for each polity’s social, political, and constitutional cohesion have again brought the uncomfortable question of colonialism to the forefront.
The first of these legal disputes came to a head in March 2022 and regards the constitutionality of same-sex marriage within the Caribbean island’s jurisdiction. For context, Bermuda is often characterised as a socially-conservative country whose resident LGBTQ+ community had lamented the domestic administration’s marginalisation of their rights over the course of many years (Burgess, 2019). Whilst a landmark ruling permitting same-sex marriages for the first time was issued by the Bermudian Supreme Court in May 2017, the island’s government swiftly sought to repeal the judiciary decision by means of introducing a new law project, voted in December of the same year (Jones, 2017; Jackson, 2017).
This is where the United Kingdom comes in. After the then incumbent May administration declined to intervene on political grounds despite having the legal capacity to do so (BBC News, 2018), in March 2022, a London-based court that oversees Bermuda’s own Supreme Court issued a long-awaited verdict upholding the Bermudian government’s challenge (Sarkar, 2022). As a result, same-sex marriage is today banned in the British Overseas Territory. As was the case in Theresa May’s non-intervention five years prior, the UK Human Rights blog would later observe that the position adopted by the British justices had much to do with optics – or a concern that the UK would be seen to ‘interfere’ in the domestic affairs of an Overseas Territory whose autonomy is guaranteed by precedence and convention (McCann, 2022).
It is against this backdrop that a separate 2022 case concerning the legalisation of cannabis usage in certain situations becomes all the more confusing. A liberalising attitude towards the ‘Class B’ drug had been an integral component of the Progressive Labour Party’s manifesto for the 2020 Bermudian general elections (Kukn, 2023), and the party’s subsequent record landslide victory at the polls enabled them to place the issue on their governing social policy agenda. However, after tabling a law project to convert electoral promise into palpable reform, the British government decided in August 2022 that it would intervene to unilaterally block the law project from coming into force in Bermuda (Coletta, 2022). Whilst the UK has the constitutional right to exercise a veto at its discretion, the move to do so not even six months after the court ruling on same-sex marriage has caused outrage amongst partisans and the general public alike. British academics have tellingly branded the United Kingdom’s reaction to the cannabis legalisation law project as ‘unprecedented’, whereas Bermudian activist groups have decried what they see as a ‘new form of colonialism’ (Duffy, 2022). Even David Burt, the premier of the island and PLP member, cautioned that the relationship between his territory and the United Kingdom could be ‘destroyed’ (ibid.) forever if the United Kingdom does not reconsider its stance. More court proceedings are sure to follow in the next few months and years, and the topic remains unresolved at the time of writing.
Whilst the two examples are legally distinct, the dual standards of political treatment exposed when they are read in this comparative manner underscore the peril for the United Kingdom as an ‘administering power’. Westminster’s de facto about-face favouring selective intervention in Overseas Territories’ affairs rather than a general policy of abstention has highlighted the various constraints on autonomy and self-determination which British sovereign oversight imposes, and the ensuing implications will remain present long after the specific issue of cannabis decriminalisation in Bermuda is put to rest. However – and arguably of even greater importance – the policy simultaneously challenges the opaque processes of legitimacy and value-judgements which go into establishing the constitutional ‘red lines’ for the British government: in other words, the red lines which, if crossed, are grounds for exceptional intervention.
In issues so intimately tied to the Bermudian democratic process, elected public office, and sociocultural ontologies, the situation is visibly lose-lose for the United Kingdom. On the one hand, a British unwillingness to act on certain issues in the interest of not appearing to interfere exposes Westminster to accusations of social injustice and a disregard for the values of a tolerant, modern Britain – as indeed proved to be the case in the May government’s non-intervention vis-à-vis same-sex marriage (Barnett, 2022). On the other hand, however, choosing a more interventionist stance leads to very real calls of legal – and colonial – overreach by a power far removed from the realities of its people. This dilemma is rendered all the more difficult by the fact that it is by no means limited to Bermuda alone. The March 2022 ruling on same-sex marriage simultaneously contained a verdict against the same issue’s handling in the Cayman Islands – another British Overseas Territory also on the NSG territories list – again on constitutional grounds.
Since the events of 2022, institutional calls for Bermudian independence have risen to an all-time high. Bermudian Premier David Burt controversially used a visit to London in the wake of Queen Elizabeth II’s death to make this opinion heard (CMC News, 2023). Whilst popular opinion is for the moment unconvinced by independence, the presence of separatist pressures much closer to home means that if the United Kingdom is to set a sustainable constitutional course for the 2020s and beyond, a careful balancing act of tolerance, communication, and consistent public policy informed by ontological self-introspection is required now more than ever – and fast. For an embattled Conservative administration which itself seems convinced of defeat at next year’s general elections, it may prove a bridge too far.
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