The Dependency Studies Project
Analysis of dependency, autonomous and other non-independent governance models
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"Decolonization – What happens to a dream deferred?"
An Address to a Forum on Decolonization
University of Guam
29 October 2015
Carlyle G. Corbin
Dependency Studies Project
At the outset, I wish to pay my deep respect to the original peoples of this land.
The theme of this address is derived from the poem, “What happens to a dream deferred?” authored by Langston Hughes, one of the leaders of the early 1900s Harlem Renaissance (1902-1967). The present theme asked the same question about decolonization.
When we speak of something which has been deferred, we speak of something that has been postponed, delayed, or ignored for a certain time – or even indefinitely.
This presentation asks the same question about the dream of many of us in the territories – an aspiration, really - that we will, one day, reach the level of full decolonization – even though we are often told that we have reached it already, that this is all we should ever expect to aspire to.
If you think about it, it is rather amazing how we have been shifted around, from one colonial power to the next, over the centuries. Through the struggles of the ancestors against the earliest days of colonialism, territories worldwide are still working towards the fulfillment of the dream of the full measure of self-government and a permanent political status.
Ironically, the inalienable right to self-determination has been long guaranteed to us through historical commitments made for over a century by bilateral and multilateral treaties. Together, these commitments serve as the defining principles of the contemporary decolonization process.
But a fundamental question which I often ask is whether these commitments made in international law to decolonize the remaining territories worldwide are taken as seriously as they once were by those nations which administer territories, such as France, the United Kingdom, or the United States. Or do they feel that the “rule of law” no longer applies to them - even as they insist that it applies to everybody else. The phrase “Do as we say, not as we do” comes to mind.
I also ask the question whether the geo-strategic and geo-economic interests of those countries which administer territories around the world are more important than fulfilling their international legal obligations – and moral obligations - to decolonize the territories they have long held? Observations over the years events have led me to question whether our decolonization may no longer be consistent with these geo-strategic and geo-economic interests. I give three examples related to the three main administering powers:
1. The first example relates to France. Five million sq. km. of undersea minerals in the waters of French Polynesia, is a powerful economic incentive for France to refrain from promoting self-determination for the Ma’ohi Nui people even as it is a legal obligation under the UN. Charter. Decolonization would restore those resources to the ownership of the Ma’ohi Nui people.
2. The second example relates to the United States. To what extent does the U.S. military build-up in Guam and the Northern Mariana Islands (CNMI) affect federal thinking on decolonization? Under a permanent political status selected by the people, the unilateral federal authority under the territorial status would give way to a more balanced political relationship of mutual consent. This is the case with respect to Guam's ongoing referendum process, as well as for the CNMI if the commonwealth proceeds with its planned political status review, and moves to a permanent status.
3. The third example relates to the British. If the stubborn retention of empire by the British in the Caribbean, and in its occupation of the Malvinas Islands off the coast of Argentina, were to end, what happens to the British global footprint and the offshore oil deposits which they presently claim are their own even as they are thousands of miles away from British shores. And what is the true intent of the Pitcairn Marine Sanctuary recently announced in the South Pacific?
I suppose that it is sometimes better to know some of the questions than all of the answers. But these questions continue to linger. The answers may lie in the realization that any decolonization process in this early part of the 21st Century must be seen in light of such geo-strategic interests – and such interests may not be in our interest.
In light of these observations, has the dream of genuine decolonization become – to use the words of His Holiness Pope Francis at the United Nations last month - “an unattainable illusion?”
Bob Marley would ask whether it is “a fleeting illusion to be pursued, but never attained.”
Or might it be what the French jazz violinist Jean Luc Ponty describes as "Lost Illusions"?
For my part, I would question whether the territories have been lulled into another type of illusion – one that would have us justify and internalize the status quo. I refer to the “illusion of inclusion” the illusion that we are “a part of” the United States even as federal and international law suggest that the political relationship is referred to by the U.S. Constitution as “territory or other property.” As one of my University of Guam students Luke Duenas said in our Governance and Self-Determination class last Summer,
“We have been living in the Matrix, and the only way to get out of it is to unplug.”
So, it is from this perspective that I ask the question: Decolonization - What happens to a dream deferred?”
The International Commitment
If we take a global approach to our decolonization, it is clear that international law and principles apply to all countries of the world who signed the U.N Charter in 1945. There is not supposed to be any exceptionalism in this case.
Last month, the nations of the world commemorated the 70th anniversary of the United Nations (U.N.) by unanimously reaffirming those principles of the U.N. Charter. These included Chapters 1, 11 and 55 which provide firm commitments for the “self-determinations of peoples” (not ‘populations,’ but ‘peoples’- the peoples of the territory, not the people in the territory).
Article 73 (b) of the U.N. Charter sets forth the fundamental international legal obligations “to develop self-government to take due account of the political aspirations of the peoples…”who were recognized as the native inhabitants in the Treaty of Paris (regarding Guam and Puerto Rico), the Treaty of Cession (regarding the Danish West Indies cum U.S. Virgin Islands) and the main human rights treaties. Self-determination of peoples has been recognized formally by the nations of the world as a fundamental human right.
Since the U.N. Charter was signed, some 80 territories have been decolonized, either through independence like the Philippines, full integration like Hawaii (notwithstanding the highly questionable legality of the annexation of the Hawaiian Kingdom), or free association like the Federated States of Micronesia, Marshalls and Palau. (These examples coincide with the same three options of full self-government that would be considered in the upcoming Guam referendum).
But others of us, like Guam, American Samoa, the Virgin Islands, the CNMI and Puerto Rico have yet to attain the full measure of self-government attained by these other former territories. A proper self-governance assessment using the global Self Governance Indicators would identify where the democratic deficits may lie in these political status arrangements. Indicators such as political representation in the federal system, the unilateral nature of federal power, control of natural resources and many other factors would identify the democratic deficits of the territorial status, and debunk the myth of political inclusion.
It can be said that the international legal obligation to develop full self-government in the territories began at the signing of the United Nations Charter. However, the commitments to develop genuine self-government had been made much earlier. Unfortunately, these commitments have yet to be fully honored, and the dream of decolonization has been continually deferred. So let us take a closer look at some of those historical commitments.
Some of these commitments were contained in treaties and other agreements throughout the Pacific. Agreements were made by the early colonizers with the native inhabitants of Polynesia beginning with the 1878 Treaty of Friendship and Commerce between the indigenous Samoan chiefs and a U.S. military commander containing certain obligations to respect indigenous traditions and laws. Also in Polynesia was the 1880 treaty between the French and the indigenous leadership of Ma’ohi Nui/French Polynesia which made similar commitments.
In both instances, however, these commitments were not honoured. In the case of French Polynesia, this actually led to the Franco-Tahitian War between 1844 and 1846, and the war in the Leeward Islands between 1888 and 1897.
An enlightening description of this early period of colonization can be found in an article by former Senator Mark Forbes in the excellent publication “Issues in Guam's Political Development: The Chamorro Perspective.
A second historical commitment made to the native inhabitants was the Treaty of Paris in 1899 and the annexation of Guam, the Philippines, Cuba and Puerto Rico. For Guam and Puerto Rico, Article IX of the Treaty expressed the commitment as follows:
“The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the (U.S.) Congress.”
Guam and Puerto Rico would go through over a century of effort in encouraging the U.S. Congress to act on this commitment –and are still waiting.
A few years after the Treaty of Paris, the U.S. Supreme Court in the infamous Insular Cases between 1901-05 issued rulings on how to govern the areas acquired as the spoils of the Spanish American War. These rulings served to defer the treaty commitments, and effectively legitimized a second class political status of “un-incorporated territory”. The Insular Cases confirmed that full constitutional rights did not automatically extend to all areas under American control. Former Chief Justice of the Puerto Rico Supreme Court José Trías Monge has written that the Insular Cases were based on disturbing premises such as:
Democracy and colonialism are fully compatible.
Democracy and colonialism are fully compatible.
· There is nothing wrong when a democracy such as the United States engages in the business of governing other subjects that have not participated in their democratic election process.
The resulting military governance in Guam (until the 1950 Organic Act) served to further defer the Treaty of Paris commitment for the Congress to develop "the civil rights and political status of the native inhabitants".
Judge Monge observed that the Insular Cases would be considered 'bizarre' today - except that the recent unsuccessful lawsuit seeking to declare American Samoans as U.S. citizens suggest that this thinking is very much alive. The U.S. Justice Department position in the American Samoa case confirmed that the federal interpretation of the political status of the territories remains essentially the same as it did in the days of the Insular Cases. The U.S. Court of Appeals decision in the American Samoa case acknowledged the ‘validity’ of a second class political status and a second class statutory U.S. citizenship that is not guaranteed by the U.S. Constitution. Political satirist John Oliver provided the world with a humorist account of this on an HBO program earlier this year. Several points made in the court ruling offered more sobering insights:
“…the framework (of the Insular Cases) remains both applicable, and of pragmatic use, in assessing the applicability of rights to unincorporated territories."
“Whatever may be finally decided by the American people as to the status of these islands and their inhabitants . . . they are entitled under the principles of the Constitution to be protected in life, liberty, and property . . . even [if they are] not possessed of the political rights of citizens of the United States.”)
If a future court decision ultimately strikes down the Insular Cases, are we prepared for what comes next? If we would no longer be unincorporated, would Congress do the most logical thing and make us incorporated territories, by default? And since incorporation is the transition to political integration (statehood), would such a unilateral action (lawful under the U.S. Territorial Clause) violate our international right to self-determination - to choose a political status ourselves? Suppose we don’t want to be put on the track of statehood – which could also mean joining an existing state?
The unintended consequences of such initiatives must be thoroughly explored especially before we sign on to initiatives which on the surface may offer exciting prospects. But the American Samoa case provided us with important insights on how the federal courts interpret our political status and the nature of our citizenship. Maybe all of this will somehow encourage us to unplug from that matrix that Luke Duenas spoke about. (Should we take the red pill or the blue pill…?)
If there is one thing that is certain to me, it is that the description of our political status from the federal court only confirms the understanding that such status arrangements were never meant to be permanent. Given their undemocratic nature, how could they be considered anything but transitional to a permanent status? It is only through such a successful transition that the international legally binding commitments of the federal government under the Treaty of Paris, the Treaty of Cession and the U.N. Charter would be fulfilled leading to the realization of the dream of decolonization and true democracy.
When Congress gave us the two organic acts for the Virgin Islands in 1936 (revised in 1954) and for Guam in 1950, this was seen as a part of that transition – not as fulfillment of the historical, legally binding commitments that the Congress was to determine the political status of the territories. This is because the political status didn’t change with the organic acts which were designed only to organize the internal structures of the status quo. – so we went from un-organized, unincorporated territories to organized, unincorporated territories. Similar structures were put in place in American Samoa beginning with the 1950 Department of Interior Secretarial Order and in the Puerto Rico Commonwealth Constitution of 1952. The political status of these two territories under the U.S. Territorial Clause did not change as a result of these internal governance arrangements.
Make no mistake. I fully acknowledge that the emerging governance structures under territorial status have been most useful in the preparatory phase of building capacity for eventual full self-government. I also recognize that these developments resulted from concerted pressure from the territorial leaders themselves. The critical role played by the Mau in the 1920s in the Samoas resulted in Congressional action providing for civilian government. The courage and spirit of Chief Hurao in Guahan (Guam) during the earlier Spanish colonial period served as the genesis of later actions including the walk-out by the Guam Congress in 1949 forcing U.S. Congressional action on an organic act. The important work undertaken by Guam Governors Joe Ada and Carl Gutierrez on devising a progressive and workable formula for the commonwealth status was groundbreaking. But in the end, federal support was not extended even as similar delegated powers envisaged in the Guam proposal were already being exercised in the Commonwealth of the Northern Mariana Islands.
The work of Virgin Islands Governor Alexander A. Farrelly, under whose administration the only political status referendum in Virgin Islands history was held, also served to raise the issue of the political inequalities inherent in the territorial status. All these efforts and more must be acknowledged with deep respect as building blocks to the present day struggle for ultimate self-determination. Those involved in such historic achievements were some of our earlier human rights defenders. There were similar figures in Puerto Rico and the Virgin Islands in the Caribbean; in Tahiti and Noumea in the Pacific, and in other areas of the world.
But what happened after the organic acts were conferred upon us by the U.S. Congress was rather curious. The new transitional structures of unincorporated territory came to become increasingly seen - and projected - by Washington less as transitional, and more as legitimate forms of democratic governance. The weakness of the argument favoring this legitimization lies in the apparent reluctance to formally submit these dependency arrangements for U.N. review and assessment. So the UN dances a sort of minuet around the issue, but never really addresses it. The beginning of this dependency legitimization period following the organic acts served to further defer the Treaty of Paris, Treaty of Cession and U.N. Charter obligations.
A variation on this theme is contained in the several White House Task Force Reports on Puerto Rico between 2005 and 2011. These reports confirmed that the permanent options were independence, free association and integration. The reports recognized the temporary nature of the political status under the Territorial Clause of the U.S. Constitution – the clause which gives Congress the authority “to make all needful rules for territory or other property of the U.S.” What else could this be but a transitional status.
But as clear as the reports were on what was permanent and what was not, there was no sense of urgency to address these temporary political status arrangements. Rather, the Reports offered a degree of legitimacy to them by indicating that the territories can remain in the status quo matrix indefinitely - even as this entails clear political, social and economic inequality. Sadly, the U.N. is given a rosy narrative in meetings where the U.N. procedure does not allow for any questions to be raised - again, the minuet.
On this point, I invoke the words of President Ronald Reagan that “it may be worthwhile to find out how images are created, and even more worthwhile to find out how false images come into being.”
Let us move to the third historical commitment – which continues to present day. This commitment can be seen in the accumulation of decades of U.N. resolutions on decolonization with recommended actions to complete the decolonization process. The most famous of these resolutions was the Decolonization Declaration of 1960 (1514), and its companion resolution (1541) which identified and defined the three permanent options of political equality: independence, free association and integration.
The actions called for in the resolutions were generally acknowledged by the nations of the world from the 1960s through 1980s. A number of territories, including those in the Caribbean and Pacific, proceeded to independence or free association consistent with these resolutions. But at the beginning of the 1990s, the process slowed down, with only Timor Leste achieving full self-government since then. This coincided with thawing of the Cold War and the variation on the theme that decolonization was a Cold War issue.
Employing this new strategy, the decolonization process became more complex, and the countries which administered territories tried hard to convince the world that the territorial status was an acceptable form of governance - even as it did not meet the international standards for full self-government. I cite three examples:
- The first example is where the French signed the Noumea Accord which was a long self-determination process leading to a referendum for the people of Kanaky/New Caledonia. The French would later try to manipulate the voter eligibility to ensure that as many French settlers as possible would be eligible to vote in the upcoming referendum - even as this violates the Accord. The French now storm out of the UN Hall whenever the words French Polynesia are uttered, and they ignore their international legal obligations to provide information to the U.N. on that territory.
- The second example is where the British adopted several new territorial modernization policies changing the designation of their territories from “dependent territories” to “overseas territories”, and changing the name of the elected head of government from Chief Minister to Premier. British unilateral power over the territories, however, remained intact. But the argument put forward is that “as long as the territories wish to remain British” they will have to contend with the unilateral British authority. This is projected as ‘self-government.’
- The third example is where the U.S. argued that the power granted to the U.S. territories to elect a governor and a non-voting delegate to one House of the U.S. Congress represents full self-government, and all that is needed is a constitution to be approved as the final step to legitimize the unincorporated territorial status. Of course, unilateral federal authority remains unchanged, including the unilateral application of the Jones Act to Guam. University of Guam student Michelle Luzano wrote an excellent class paper last summer on how this affects the cost of living in Guam. So, had constitutions been adopted, an escape from the stranglehold of the Jones Act would have been even less likely for Guam even as it is outside of the U.S. Customs Zone like the Virgin Islands (which is exempt from the Jones Act). With a constitution under the present political status, it would have been expected that attempts to remove the territory from the U.N. list of non self-governing territories (NSGTs) would have been made.
Guam and the Virgin Islands both tried the ‘constitution first’ route once and the people said they preferred to settle the political status question first. The Virgin Islands tried it a number of times – five constitutional conventions in the Virgin Islands between 1964 and 2012, along with one political status referendum (1993) – all with inconclusive results. If there is one thing that could be drawn from the Virgin Islands experience is that the areas of autonomy identified as important to governing ourselves effectively cannot be accommodated within the box known as unincorporated territorial status under the Territorial Clause of the U.S. Constitution. It is a status which only perpetuates political inequality serving to circumvent, rather than fulfill, the international commitments for full self-government – serving to further defer the dream.
So, rather than participate in the U.N. decolonization proceedings to argue their case for dependency legitimization, the three major administering powers (France, UK, and US) proceeded to withdraw from participation in the U.N. Decolonization Committee at the beginning of the 1990s. Their argument was that the Committee had become outdated – colonialism was not outdated, according to this thinking - but rather the committee responsible to recommend ways to bring colonialism to an end. Meanwhile, General Assembly decolonization resolutions that become international policy to be followed by all countries are often ignored. This has served to further defer the dream of real decolonization - despite the objective reality of the true nature of our political status.
This analysis also can be applied to other territorial constitutions in Puerto Rico and American Samoa as they are also subordinate to the U.S. Constitution and the unilateral applicability of U.S. law. In fact, a 1987 U.S. District Court ruling regarding the Virgin Islands (upheld by the Third Circuit Court of Appeals) stated that the territorial government "exists... only by the legislative grace of Congress.” Imagine that. Meanwhile, the autonomy of the CNMI Commonwealth model has been further eroded by U.S. court decision upholding the federalization of significant powers which they thought had been the exclusive jurisdiction of the commonwealth government under the self-government provisions of the CNMI Covenant.
Not to be undone, there is also a French version of colonial legitimization which finds so-called “autonomy statutes” given to territories like French Polynesia. But the application of the global Self-Governance Indicators revealed that this French version of the organic acts is anything but autonomous. The Netherlands has their own version of 'partial integration', while holding on to unilateral power in this new variation of dependency arrangements which has, thus far, escaped U.N. jurisdiction. We could go on.
We have covered a range of decolonization issues, including methods and strategies which have circumvented the process thus far. I will close by examining why I think that those countries which administer territories might be ignoring their international obligations.
I reiterate my earlier suggestions that the overarching reason for the resistance to decolonization is motivated by geo-strategic and geo-economic considerations. As far back as 1980, President Jimmy Carter announced a formal territorial policy which expressed that "all options for political development should be open to the people of the insular territories" (with the caveat) if economically feasible and consistent with U.S. national security interests.” (emphasis added). So we were told then that we had a sort of ‘qualified’ right to self-determination – as long as this ‘right’ did not impact on U.S. ‘interests.’
Not surprisingly, there is currently little evidence today of any proactive an genuine federal approach to preparing the U.S. territories for full self-government consistent with international legal obligations of States which administer territories. On the contrary, continued promotion of dependency legitimization has been the order of the day for some time. This preserves the status quo unilateral federal power which fits nicely with geo-strategic and geo-economic interests. Such considerations are formidable for the Pacific territories given the preoccupation of the foreign and defense policy interests in Washington over the expansion of Chinese influence in Asia.
For our part, it is only through a permanent political status that more balanced arrangements can take place in framing and regulating such activities in the territories in this part of the world. The prevailing defense treaties between the U.S. and the Philippines or Japan, respectively, is indication of a balanced approach between independent countries through mutual agreement.
In the case of the Freely Associated States of Marshall Islands, Palau and the Federated States of Micronesia, such activities are regulated by the terms of the agreement contained in the respective compacts of free association.
Of course, such balance is absent under territorial status where the authority is exercised unilaterally - albeit with quite sophisticated consultation procedures preceding the decision (public hearings, etc.). But as Guam Governor Joe Ada used to say, ‘mutual consultation is not the same thing as mutual consent.’
I would argue that the substantive issues between U.S. territories and the U.S. government, including those geo-strategic considerations, might be better accommodated through mutual agreements under free association, through political integration (statehood) where there is equal political power (and obligations) in the U.S. system, or through independence where relations are defined by international treaty.
These are the 21st century solutions to ending the deferral of the dream of decolonization. This would render irrelevant the Insular Cases since there would be no more “territories or other property” at the ‘disposal’ of the U.S. Congress. Peoples should have never been so categorized anyway. As long as we remain under the Territorial Clause of the US Constitution, however, power will always be elsewhere, and will continue to be exercised unilaterally by a Congress in which we have no vote, and by a President for whom we cannot vote.
But, again, the answer does not lie merely in the singular approach of attacking the applicability of the Insular Cases if we have not examined the possible implications. I would argue that the answer does lie in a proper process of self-determination under the rules of international law. This would render irrelevant the Insular Cases, the applicability of the Territorial Clause, and the unincorporated territorial status. They should all be sent to the dustbin of history.
We may reach this determination at different times in our political and constitutional evolution. But if we remain in the status quo – even a modernized version of it - it should be understood that we would have not achieved full self-government which can only come by way of a permanent political status.
However, as our moderator Raymond Lujan wrote for a paper in our class last summer, we are faced with “a lax disposition that the U.S. has towards assisting with an educational program for self- determination and political status options - actions which they are obligated to do.” Indeed, sustained public education on these issues, in the fullest of dimensions, is what is needed to enhance our chances to make an informed decision on our political future based on “Equal Rights and Justice”, in the words of the late Reggae Artist Peter Tosh.
Along the path to self-government and democratic free will, we often revert to the perceived comfort of the dependency condition. But if we are complacent, then we disgrace the ancestors and deserve only the future which would be dictated to us – or no future, at all as a people. History forgets those, first, who forget themselves.