09 March 2017

"Settler Colonialism" in Guam upheld by United States Court

An Overseas Territories Review commentary

"The decision of the United States (U.S.) court denying the authority of the government of the non self-governing territory of Guam to conduct a non-binding poll of its native inhabitants on their political status preference runs counter to the rights of the people. This is yet another example of the systematic deferral of their right to self-determination under international law long promised since the end of the Spanish American War in 1898. 

Such a decision comes despite the international legal obligations accepted by the U.S. in the Treaty of Paris of 1898 to address the political status of the territory which was transferred from Spain to the U.S. It runs counter to U.S. obligations under the 1945 United Nations (U.N.) Charter which serves as a protective shield against the colonial maneuvers of unilateralism which have been only reinforced by the court ruling.

What has become clear is that the self-determination of the people of Guam and the other U.S.-administered territories cannot be protected within the realm of U.S. legal considerations. Rather,  self-determination has always been within the purview of international law where countries are held to account for the legally binding commitments they have made through treaties and other international agreements. This is 'the rule of law' which the U.S. and other developed countries lecture the rest of the world about, and which is also supposed to apply to them. Otherwise, it is the 'law of the jungle.' It is clearly evident, however, that such commitments to this 'rule of law' have been summarily ignored by the U.S. in its obligation to bring about a genuine self-determination process in the territories under its administration leading to full decolonization.

Accordingly, the recent decision of the court to discount the relevance of international law and apply only U.S. law - as if the territory was an integrated U.S. state - serves to confirm the legitimacy of unilateral power routinely exercised by the U.S. over its colonies through the application of the 'fundamental' parts of the U.S. Constitution. The unilateral extension to the territories of that constitution's 14th and 15th amendments, and selected U.S. laws and regulations, is an illustration of such power employed to protect U.S. national interests and not necessarily the interests of the native inhabitants which the U.S. is legally bound to safeguard. 

The court decision also has the effect of legitimizing a form of settler colonialism whereby the rights of the 'native inhabitants' can be overwhelmed. That the case was successfully brought by a retired U.S. military officer residing in the territory, and who claimed discrimination on the basis that he was not a native inhabitant, severely distorts the intent of the 15th amendment of the U.S. Constitution. Such provisions were never intended to interfere with the rights of indigenous peoples in their own land. But then again, the 'land' is considered the 'property' of the U.S. under the infamous "Territory or other Property Clause' of the U.S. Constitution.

In the end, the court decision was not unexpected given the conclusion of a similar decision by the same U.S. judge confirming settler voting rights in the neighboring dependency of the Northern Mariana Islands where the territory's constitution had refined the franchise on certain issues to native inhabitants.

The court decision on Guam appears to be confirmation that U.S. law is adverse to protecting the inalienable right to self-determination of the people of that territory, and by extension, the other U.S.-administered territories. The lingering question is whether this may have always been the intention - in which case, the people have been 'duped and baboozled' for over a century. This is but the latest evidence of the colonial nature of U.S. territorial status which can only be addressed through a legitimate process of self-determination under international law. 

Transpacific Project
The U.S. commitments in the Treaty of Paris, the U.N. Charter, and the core human rights conventions are ringing hollow in the aftermath of the court decision which further defers the fundamental human right of self-determination to the native inhabitants of Guam. This revelation should serve as a wake-up call to the U.S.-administered territories who should avoid being diverted by misguided, diversionary efforts to gain such unlikely, partial political 'rights' within the U.S. system, such as the U.S. presidential and Congressional votes. Such maneuvers can only serve to further legitimize the perpetual inequality under which the U.S. territories are governed since the same unilateral power would remain intact. 

Such 'rights' can only legitimately flow from the selection and implementation of a genuine political status which provides full political rights consistent with the options of independence, free association and integration. To this end, the decision of the people of Guam to consider only the options of absolute political equality was a critically important step in the territory's evolution in charting the path to full self-government. 

While considered a minor setback, the court decision to deny the political status vote to Guam's native inhabitants has provided important clarity, and only signals that contemporary colonialism has become increasing complex in the 21st century, requiring innovative methods to achieve genuine decolonization.

The people of Guahan are clearly up to the successful completion of this task. 


Marianas Variety

HAGÅTÑA (The Guam Daily Post) — District Court Chief Judge Frances Tydingco-Gatewood on Wednesday ruled that a plebiscite on Guam that restricts voting to “native inhabitants” violates the U.S. Constitution.
The judge said: “The U.S. Constitution does not permit the government to exclude otherwise qualified voters from participating in an election where public issues are decided simply because those otherwise qualified voters do not have the correct ancestry or bloodline. Having found that the classification is racial, this court finds that the plebiscite statute impermissibly imposes race-based restrictions on the voting rights of non-native inhabitants of Guam, in violation of the Fifteenth Amendment.”

This decision was announced following recent discussions that Guam should soon vote on its political status, whether to vote for independence, statehood or free association with the United States.

The federal judge also permanently barred the government of Guam and its officers, employees, agents, and political subdivisions from enforcing the political status plebiscite under Guam law, as it specifically limits the voting to “native inhabitants of Guam.”

GovGuam and its officials are likewise barred from implementing “any laws and regulations designed to enforce the plebiscite law, insofar as such enforcement would prevent or hinder [the] plaintiff and other qualified voters who are not native inhabitants of Guam from registering for, and voting in, the political status plebiscite.”

The suit was filed by an Air Force veteran, Arnold “Dave” Davis, who has lived on Guam for decades, against the Guam Election Commission and its board members.

1 comment:

Anonymous said...

Finally, someone who understands the hypocrisy of a government so vocal about human rights, who does not follow treaties, interprets the Constitution to their favor, and tells all other countries to behave. The territories were sold like real estate and certainly never given any true voice in the democratic process. For thousands of years, our ancestors thrived in its culture, language, customs and traditions. Since our people have never been given a true choice to decide their political destiny since the Treaty of Paris in 1898, the layers of bureaucracy have built up for over a hundred years so much so that any litigation would require millions of dollars to challenge in a court system that does not place our citizenship equal to that of anyone living in the U.S. Because we are not a state, and just an unincorporated territory, the U.S. argues territories are not afforded the same rights under the Constitution. The territories remain colonial possessions and serve national security objectives with military installations created by the forceful acquisitions of property with no just compensation during a period of history our people were not responsible for. The rule of the gun was used by the Spanish, the Japanese, and continues with the Federal government. The Rule of Law and the Constitution never protected our rights, they exist to keep us forever colonized. Guam will continue to be a U.S. colony, it's been our history since 1521, that keeps repeating itself.