Guam befuddled by political status dilemma

By Howard Hills

A political status jungle

Over centuries of brutal Spanish colonial rule, followed by a century of American imperial rule, interrupted by the most brutal rule of all during the WWII occupation by Imperial Japan, many injustices have been done to Guam.

A considerable number of annoyances as well, including introduction by Spain of the now ubiquitous Tangan-Tangan plant, which is neither a bush nor a tree.

Its height averages somewhere between six and nine feet. It can be used as fuel for fires, and for wind breaks, or privacy. But it is not attractive, more like a giant weed, with a six-inch diameter stem and fibrous branches.

The invasive and in the eyes of many homely scourge of un-adorning foliage cannot be eradicated. It grows everywhere it is not burned out or fed into shredders, and it comes back when not under attack.

It is the perfect metaphor for Guam’s persistent and pest-like political status dilemma. In fact, one could say Guam can’t see the political status jungle for the Tangan-Tangan that enshrouds the horizon in every direction if not held in abeyance.

The creeping plant is like the non-indigenous Brown Tree Snake also introduced by itinerant colonial regime interlopers, endangering indigenous species including the native human population.

Even more so, Tangan-Tangan has become symbolic of Guam’s identity crisis in yet another century of imperial alliances and limited home rule.

One moment Guam is a household word when a typhoon strikes, refugees land or a dictator on the Asian mainland with putative nuclear capability threatens to vaporize the island. The next minute late night talk hosts are cracking “And, exactly where is Guam?” jokes.

Meanwhile, Guam’s earnest quest for greater home rule under a so-called “commonwealth” regime of territorial self-government, or more generally actual “decolonization” based on a fully self-governing status, is mired in ideological ambiguities and legalistic ambivalence.

Guam could just content itself with relative economic prosperity as an anachronistically ruled American political and military strategic outpost on Asia’s doorstep. A lot of Pacific island nations would love to have Guam’s problem of dependence on federal spending and booming Asian tourism.

Not Guam, where American patriotism runs high and having less than equal U.S. citizenship rights really annoys locals. To help poor Guam figure out what to do next, in September the U.S. Department of the Interior is sponsoring a symposium of “experts” on U.S. territorial law and policy related to political status options.

Past is prologue

This latest status initiative comes decades after Guam rejected its own proposed constitution. Guam’s leaders still use federal rejection of Guam’s “commonwealth” proposals as an excuse for the back of progress seeking “decolonization.”

The “commonwealth” proposal was a federal relations and territorial organic act, with a local constitution that already had been authorized by Congress, proposed and rejected by voters.

With or without a new “commonwealth” territorial organic act, there are three future political status options both the U.S. and Guam’s advocates of “decolonization” recognize: Statehood, Free Association and Independent Nationhood. These three options are also recognized under international law as expressed in U.N. resolution. But there are clarifications that need to be made about each of these options.

Statehood

For example, statehood is a status defined not by international law, but by the US Constitution as implemented by federal law. Admission of a territory to Statehood is within the sovereign power of the US and is not a matter of international law.

However, statehood is the status under international law that constitutes full and equal integration of a territory into the US. It is the only status that confers equal rights of national citizenship.

That is because only citizens of a state have voting rights for full representation in Congress and the Electoral College. Statehood is the only status that enables US citizens to give consent to the form of government and law they live under at the national level. If it is chosen by the people of the territory in a free and democratic act of sel-determination, that would satisfy U.N. and international law definitions of full integration.

If the US unilaterally decided to impose statehood without an act of self-determination, but the result was equal rights of US citizenship, that too might meet UN and international law criteria if ratified and accepted by the people in their exercise of the rights and powers of citizens of a state. But with or without a smooth transition, making a territory under US sovereignty a state or part of a state is within the sovereign power of the US acting through its constitutional process.

However, statehood is not a right of the people under either US or international law. Only the US can decide if it wants a territory under its sovereign rule to become a state or a part of a state.

A third path forward?

The US also could resolve the status of the territory by recognizing it as a sovereign nation in free association with the United States.

Free association is recognized by the U.N. and international law as a status that is based on the right of independence, but also the right to choose through self determination to defer the exercise of the right to full sovereign and independent nationhood. Free association is an alliance between an independent nation and a territory that has the right to independence. It is a political status defined by treaty that enables the governments to share sovereign powers and duties of governance as mutually agreed.

Like statehood, free association is not a right. Just as statehood is conferred under Article IV Section 3 of the US Constitution, a treaty of free association must be adopted pursuant to the treaty making powers of the President under Article I and the legislative powers of Congress under Article I.

To meet UN and international law standards free association must be terminable at will by either government. If the government of the associated state has national sovereign powers under the free association treaties that preserve the right to independence, the associated state may be eligible for UN membership.

Independence

Independence is the only status among the three recognized by decolonization advocates in Guam that arguably is a right. But territorial status under US sovereignty is a form of integration that while not constituting decolonization still requires US acceptance or recognition if not agreement in order for the territory’s status to change.

To end US sovereignty in favor of independent nationhood without a treaty of free association or US agreement to terms for transition to nationhood would require Guam to adopt a unilateral Declaration of Independence, and US acceptance of that action on terms the US would unilaterally declare.

The only model of a US governed territory becoming a nation is the Philippines. The only model of free association is the compact changing the status of US administered islands under UN trusteeship to nationhood.

One part of the UN trusteeship territory became a US territory with the same status as Guam under US sovereignty. That territory – Northern Mariana Islands – was not added to the UN list if colonial areas under Article 73(e) of the UN Charter. That means its relationship with the US and future status is a matter between the people of the NMI territory and the US, just as it is for Puerto Rico.

A U.S. solution?

One option for Guam as well as the US Virgin Islands and American Samoa would be to petition the US and UN for removal from the UN list of colonial areas. If done pursuant to democratic representation in the territory or an act of self determination and accepted by the UN, that would make completion of the decolonization process a matter between those territories and the US.

But in Guam there is an ideology that being on the UN list of colonial areas gives the territories leverage in relations with the US. That may be true in terms of diplomatic tactics in the UN. But in terms of how and why the US determines the US national interest in relations with Guam the UN is at most s nuisance.

Yet, Guam’s rejection of a territorial constitution and demands for ethnic supremacy in the self determination process is largely perceived in Congress and the Executive Branch as an indication Guam doesn’t know what it wants or how to get it in relations with Washington.

The reality is the US not the UN will decide future status. The UN will be notified and will ratify what the US does in the exercise of its sovereignty, as long as it enables and does not take away democratic rights.

It’s probably unrealistic to suggest the territories stop clinging to UN apron strings and put trust in the US not UN. And that may be convenient for the US as well, since the UN is also a useful way for the US to deflect the decolonization question for Guam and treat it as a diplomatic abstraction.

But unless the territory wants and is ready to declare independence, one wonders whether the obsession with classification as a colony by the international bureaucracy in New York is the smartest way for Guam to define its its ethnic identity crisis, much less its political and cultural destiny.

 

Howard L. Hills served in the Executive Office of the President, National Security Council and U.S. Department of State managing legal and diplomatic affairs in support of U.S. foreign policy and national security. As a Navy JAG treaty advisor he was assigned as lead counsel for the Reagan Administration during final negotiations, ratification and implementation of political status treaties with Pacific island nations, securing military operating rights essential to President Reagan’s missile defense and nuclear disarmament programs.
Hills distinguished himself as lead counsel on territorial status policy in Congress, the federal courts and in U.N. Security Council proceedings on the unprecedented Micronesian status treaties. For his service Hills was awarded the Defense Superior Service Medal, Defense Meritorious Service Medal and Joint Services Commendation Medal. Hills previously also served as a Peace Corps lawyer in the U.S. administered United Nations Trust Territory of the Pacific Islands, Deputy Legal Counsel to the House of Representatives in the Commonwealth of the Northern Mariana Islands, and Assistant Executive Director of the Guam Legislature’s Law Revision Commission. He is author of a book on status resolution for Puerto Rico entitled “Citizens Without A State.”

 

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